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Book Recommended:

1. M.P. Jain : Outline of Indian Legal History

2. J.K. Mittal : History of Indian Law

3. M.P. Singh : Indian Legal History

4. Cowell : History and Constriction of Courts & Legislature in India

5. Rankin : Background of Indian Law

6. J.K. Mittal : Indian Legal History

7. V.D. Kulsherestha : Land Marks in Indian Legal & Constitutional History

 

 

THE EAST INDIA COMPANY AND ITS EARLY SETTLEMENTS

THE EAST INDIA COMPANY

The First East India Company was incorporated in England under a Charter

granted by Queen Elizabeth on 31st December, 1600. Its official tide was "the

Governor and Company of Merchants of London trading into the East Indies". It was

given the-exclusive right of trading in all parts of Asia, Africa and America beyond

the Cape of Good Hope eastward to the Straits of Magellan. The trading area so

defined covered almost every part of the world except Europe. No other British

subject could trade in this area without obtaining a licence from the Company. 'The

charter was granted for 14 years and it could be renewed for another 15 years only if

it did not prejudicially effect the Crown and its people. The company was managed by

Court of Directors. The members of the Company in a general meeting, called "the

Court", elected annually a Governor and twenty-four directors to look after and

manage the affairs of the Company.

Powers of the Company. - By majority vote the Court could make any

reasonable/laws; constitutions, orders and ordinances as it found necessary and

convenient "for the good government of the said Company, and of all factors, matters,

marines, and other officers, employed or to be employed in any of their voyages and

for the better advancement and continuance of the said trade and traffic". For any

violation of these laws the Court could also provide for such pains, punishments, and

penalties as were deemed necessary. These laws and penalties were subject to the

condition that they had to be "reasonable, and not contrary or repugnant to the laws,

statutes or customs" of

England. Ilbert has called these powers of the Company "the germ out of which the

Anglo-Indian codes were ultimately developed". A number of Charters granted

subsequently (Charters of 1609, 1661, 1668, etc.) preserved these powers of the

Company.

A Second East India Company, to which the Commerce of India was

exclusively granted, was incorporated under a Charter of 5th September, 1698 issued

 

 

by William III. The two companies were united into one in 1709 under an award of

Lord Godolphin. The new united company came to be called "The East India

Company." The Charter of 1698 which formed the basis of the constitution, powers

and functions of the new Company added only few things to the Charter of 1600.

Under the new Charter the total number of members of the Company constituted the

General Court. The General Court elected annually twenty-four directors, called the

Court of Directors, for the purpose managing and directing the affairs of the

Company. In addition to the powers granted under the Charter of 1600, the Charter of

1698 also provided that subject to the sovereign rights of the Crown the Company

shall have the power to govern its factories and forts. To establish the accountability

of the Company to the Crown the Company was required to submit annually its

accounts to the British Parliament. This constitution of the Company remained

unchanged until the enactment of the Regulating Act, 1773 discussed below.

In addition to the above-mentioned wide general powers, the Company

acquired from time to time specific powers from the British sovereign. Among such

powers we may mention the Royal Commissions and the Charter of 1661.

Royal Commissions.-Within a short time of its creation the Company realised

that the powers in its hands were insufficient to control the lawlessness and

disobedience in respect of its functioning and operations. Therefore, the Company

sought the help of the Crown to punish people for capital offences. This the Crown

did by issuing Commissions. By such Commissions the Crown authorised the

Commander-in-Chief of each voyage separately to punish for serious offences. The

first such Commission was issued in 1601. On 14th December, 1615 the Crown gave

a general power to the Company to issue such commissions to its Captains. The

power of the Company in this regard was subject to the limitation that in capital

offences of murder and mutiny the trial should be· by a jury of twelve servants of the

Company. Subsequently, when the Company established its business at different

places, on 4th February, 1623 King James II granted to the company the power of

issuing Commission to any of its Chief Officers authorising them to punish persons,

subject to a jury trial in case of capital punishment.

 

 

Charter of 1661.-The Charter issued on 3rd April, 1661 by Charles II has a

special significance in the Indian legal history. By this Charter the company was

empowered to appoint a Governor and Council at its factories. In addition to other

powers1, the Governor and Council were authorised to judge all persons belonging to

or living under the Company "in all cases, whether civil or criminal" according to the

laws of England and to execute judgment accordingly. In places, which had no

Governor and Council, the Chief Factor and Council were empowered to send

offenders for punishment either to a place where there was a Governor and Councilor

to England. Thus the Charter of 1661-

1) authorised the Company to try and punish all persons living under it, including

the Indians,

2) opened the doors for the introduction and application of English law in India,

and

3) conferred judicial powers on the executive, viz., the Governor and Council.

SETTLEMENT AT SURAT

The Company established its first factory in India at Surat in 1612 during the

time of Mughal Emperor Jahangir. To gain the favour and protection of the Emperor,

King James I, sent Sir Thomas Roe to him in 1615 as his Ambassador. The Emperor

issued a 'Firman' granting certain facilities to the English people to carryon their

activities in a hired house at Surat; to live according to the laws, religion and customs

of England and to be judged by their own laws in their disputes. But a dispute arising

between an Indian and an English was to be decided by the local Indian courts.

Constitution and Functions of the Factory.-The factory was administered by

a President and Council who were appointed by the Company. The decisions of the

majority of the members of the Council were the decisions of the Company. Apart

from exercismg their powers for trading purposes the President and his Council also

had the power to administer law and justice. But very little is known about the British

judicial system at Surat. This much is clear that the English people were governed by

a dual system of laws, namely:-

(a) In their own matters by the laws of England; and

(b) In matters with Indians by the native laws of this country.

 

 

The native courts at Surat also did not enjoy good reputation. They suffered

from many evils. According to Dr. U.C. Sarkar "during this time the administration of

justice by the Mughal emperor also was very unsatisfactory particularly in cases

which were not adjudicated by the emperors themselves". There was no set pattern of

crimes and punishments and corruption among the judges was rampant. Many cases

of indiscriminate punishment and letting off of criminals on acceptance of bribe by

the judge are cited by Malabari in his book: Bombay in the Making and by Kaye in

his Administration of the East India Company. Many English people, therefore, took

law into their own hands and did not care for these courts.

The Surat settlement of the Company remained in prominence until 1617. Due

to the transfer of the seat of the President and Council to Bombay in that year, Surat

lost all its importance for the Company.

SETTLEMENT IN MADRAS

Madras was founded by Francis Day in 1639 on a piece of land granted to him

by a Hindu Raja. A fort named as Fort St. George was established there. The Raja

also authorised the Company "to govern and dispose off the Government of Madras

Patnam" -a small village adjacent to the fort. Inside the fort lived the English and

outside in Madras Patnam lived the native people and accordingly the two were

known as the White Town and- the Black Town respectively. The two towns together

later came to be known as Madras.

The legal system that existed in Madras upto 1726 may be divided into three

stages.

First Stage (1639 to 1665).- To begin with, Madras was an agency

subordinate to Surat. Its Chief Officer was called 'Agent' who administered the affairs

of the Company with the help of a Council. The judicial system that existed at this

stage was conspicuous by the absence of any systematic and regular administration of

justice. The only system that existed was-

(a) The agent and his Council for the White Town; and

(b) The Choultry Court for the Black Town.

The jurisdiction and powers of he former were not clearly laid down. It could not

decide serious offences and generally sent them to the Company's authorities 'in

 

 

England. No decision could be given in such cases for years due to the lack of

effective and expeditious means of communication. The Choultry Court was a native

court presided by the village headman known as Adigar. In 1652, Company's two

servants wee appointed to sit in this Court, after the dismissal of the then Adigar on

ground of dishonesty. This Court could decide only petty civil and aimina1 matters.

What happened in cases of serious nature, is hardly blown. Apparently there was no

specific and regular procedure to deal with such matter in the Black Town and the

procedure and punishment differed from case to case. Generally the matter used to be

referred to the native Raja who either gave a specific direction in the case or

authorised the English authorities to decide the matter according to the English law.

Charter of 1661 was granted by Charles II and radical changes were brought by it as

under it the Company could II appoint Governors and other officers in India".

Company's authority was was excluded over the natives i.e., non-employees of the

company. Justice was to be imparted

according to the English Law.

Second Stage (1665 to 1686).- Although the Charter of 1661 provided that the

Governor and Council could decide every matter according to the laws of England,

nothing was done until 1665, when the Dawes case arose. Mrs. Ascentia Dawes was

brought on a charge of murder before the Agent and Council. As per practice, the

Agent and Council could only refer the matter to England. To get rid of this procedure

the Company thought it proper that the Governor and Council should be appointed

under the. Charter of 1661 so that such cases may be decided then and there.

Accordingly, in 1665 the Company raised the status of Madras to a Presidency and

appointed a Governor and Council who could also work as Court. The case of Mrs.

Dawes was decided by this Court. Perhaps because of the absence of any legal expert

in the Court the lady got acquitted. Many requests were made by the Governor and the

Council to the Company to send a legal expert, but none was heard. In 1678, the

Governor and Council resolved that they would sit as Court for two days in a week to

decide the cases in all civil and criminal matters with the help of a jury of twelve men.

The Court was called as the High Court of Judicature. This Court decided important

 

 

cases both in civil and criminal matters and also heard appeals against the decisions of

the Choultry Court.

Third Stage (1686 to 1726)- Admiralty Court.-As noted above proper

administration of justice was absent in the Presidency and the same was the case with

other establishments. Crimes were increasing and occurred more frequently on ships

transporting goods from one place to another. To face this difficulty and to avoid the

evils arising from it, it was found necessary that a Court having the jurisdiction to

decide the maritime cases should be established. Therefore, on 9th August, 1683,

Charles II granted a Charter to the Company making a provision for the establishment

of the Admiralty Courts. Admiralty Court was to consist of three members, one of

whom was to be 'learned in the civil law,' and the other two were merchants,

appointed by the Company. The Court had to hear all cases, mercantile and maritime

concerning all persons coming within the limits of the Charter, e.g., the cases of

trespass, injuries, wrongs, etc. committed at the high seas. The Court had to apply the

principles of equity justice and good conscience and the customs of the merchants.

Subject to the directions of the Crown, the Court could determine its procedure.

The proposed Court was established in Madras on 10th July, 1686. The first

members of the Court were three civil servants who were also members of the

Governor's Council. In the year 1687, a lawyer-member with the designation of

Judge-Advocate was appointed to this Court. The lawyer was Sir John Biggs. On the

arrival of the Judge-Advocate, Governor and Council found that there was no need of

the Governor and Council administering justice separately and they, therefore,

relinquished their job in favour of the Court of Admiralty which henceforth decided

all types of cases whether civil, criminal, maritime or mercantile. Criminal cases were

decided with the help of jury.

In 1689, Sir Biggs died and the post of the Judge-Advocate fell vacant. In the

absence of any lawyer-member, the Governor himself assumed the charge of the

Judge-Advocate. This composition of the Court was against the nature of the original

Charter which required a civil lawyer as the Judge-Advocate. Hence in 1692, a new

Judge-Advocate was appointed who was dismissed in 1694 on a charge of bribery. In

1696, the Company directed that the members of the council would successively work

 

 

as Judge-Advocate. But none of them was a civil lawyer, hence the Court lost its

importance. After 1704, the Court ceased to work regularly. In the meantime other

Courts were established to decide the disputes.

Establishment of Corporation and the Mayor's Court.-Under a Charter of

30th December, 1687, the East India Company proposed to establish a Corporation in

Madras. The purpose of the Corporation was-

(1) to provide a representative local government.

(2) to impose local taxes, and

(3) to have the powers “for the speedier determination of small controversies

of little importance frequently happening among the unarmed inhabitants.

The first Corporation in Madras was established on 29th September, 1688. It

had one Mayor, 12 Aldermen and from 60 to 120 Burgesses. The Mayor was to be

elected annually. The Corporation was subject to the authority of the Governor and

Council who could remove any of the member of the Corporation including the

Mayor.

Mayor's Court.-The Mayor's Court consisted of the Mayor and all the

Aldermen. The quorum for the Court was three-1 mayor and 2 Aldermen. A lawyer

member, called Recorder, was appointed by the Mayor and Aldermen for helping

them in deciding the cases of -considerable value and intricacy".

The jurisdiction of the Court extended to all civil and criminal matters. It had

power to inflict any punishment on any Indian as ~el1 as Englishmen subject to the

condition that no Englishman could be punished to death. In criminal cases the Court

had to take the help of jury. Appeals against the judgment of this Court both in civil

and criminal matters, went to the Admiralty Court. In civil matters, an appeal could be

filed only when value exceeded 3 pagodas and in criminal cases when the loss of life

or limb was involved.

The law to be applied by this Court was not specifically laid down. The only

provision made in the Charter was that the Court would decide the disputes "in a

summary way according to justice and conscience," and according to the laws made

by the Company.

 

 

The Court, although provided a forum for deciding the disputes of the people,

it could not enjoy the independence needed by the judiciary. It always depended on

the Governor and Council because they could remove the Mayor and any Alderman.

Moreover, the Mayor and the Alderman were also the members of the Council and,

therefore, they could not do full justice in the matters related to the Company and its

executive.

Choultry Court.-After the establishment of the Mayor's Court the Choultry

Court, which used to impart justice to the natives, lost its importance. Its jurisdiction

was limited only to petty criminal cases. It could impose only minor punishments of

fine, imprisonment and whipping. In civil matters it could hear the cases upto the

value of 2 pagodas only.

The Mayor's Court, the Choultry Court and the Court of Admiralty were three

Courts which functioned in Madras. The Admiralty Court ceased to function after

1704 and its jurisdiction was exercised by the Governor and council. They also heard

the Mayor Court's appeals till 1727 when a Mayor's Court was established under 1726

Royal Charter.

Conc1usion.- The overall picture of the administration of justice in Madras

was not very good in these early stages. The system suffered from many drawbacks.

The most outstanding of them are the following:-

1) Absence of proper judicial system.

2) Uncertainty of laws.- The Courts and the people did not know the law

applicable to them and their disputes.

3) Severe punishments.-Usually, the punishments were barbarous and inhuman.

They were based on the mixed idea of deterence and prevention.

4) Lack of facilities in the jails.-The inmates lived in inhuman conditions.

5) Unfair trial.- The English principles of fair trial such as the principles of

natural justice and benefit of doubt to the accused were not observed. The

''benefit of clergy" was however available to the Britishers.

SETTLEMENT IN BOMBAY

The island of Bombay was under the occupation of Portuguese since 1534. In

1661, the Portuguese king gave this island to King Charles II of England as a dowry

 

 

in the marriage of his sister. The King (Charles II) gave island to the East India

Company in 1668 at an annual rent of £10. In the same year Charles II issued a.

Charter which conferred requisite authority on the Company for the general'

administration of island including the administration of justice and making of laws.

The Company could make necessary laws, ordinances, regulations, etc. for its good

governance and could impose fines and penalties including the death sentence on

those who disobeyed the laws of the Company. But, as noted in the very beginning of

this Chapter, these powers could be exercised reasonably and consistent with the laws

of England. For the administration of justice, the Company could establish Courts

which had to follow the procedure of English Courts.

In the beginning Bombay was put under the authority of a Deputy Governor

and Council. The Deputy-Governor and Council were subject to the Presidency at

Surat. The first Deputy-Governor of Bombay was Gerald Aungier. He was a good

administrator and took much interest in establishing a good judicial system on the

island. Like Madras, the judicial system in Bombay upto 1726, may also be divided

into three stages.

First Stage (1668 to 1683).-During this period two judicial systems - ere

established. The first of them was established in 1670. According to Ibis, Bombay

was divided into two divisional. Each division had a Court consisting of five judges.

The Custom Officer of the Division was the President of the Court. Some of the

judges in these Courts were Indians.

The jurisdiction of this Court extended to petty criminal cases, e.g., thefts

involving the stolen property upto 5 xeraphins2 and similar other cases. The civil

cases which came before this Court, were also of petty nature. It had no jurisdiction to

decide cases involving more than 200 xeraphins. Appeals against the judgments of

this Court could be filed in the Court of the Deputy-Governor and Council.

The Deputy-Governor and Council worked as a superior Court having both

original and appellate jurisdiction, in all civil and criminal cases. In civil cases, it had

the jurisdiction to entertain matters of the value exceeding 200 xeraphins. All the

serious offences, which could not be entertained by the Divisional Court, were tried

by this Court with the help of jury. The appellate jurisdiction of this Court was

confined to appeals against the decisions of the Divisional Courts.

 

 

The judicial system established in 1670, was quite elementary and primitive.

No distinction was made between the executive and the judiciary. Nor was there any

provision for a lawyer-member in the Courts. Many requests were made by the

Deputy-Governor to the Company for providing a man learned in law, but it did not

care. Ultimately it authorised the Deputy-Governor to select any lawyer-member of its

choice available in India. The Deputy-Governor selected Mr. George Wilcox to be a

lawyer-member in the judicial administration. Soon after the selection of Wilcox, the

judicial system of 1670 was abolished and a new system was established in 1672.

On 1st August, 1672, a governmental proclamation was made. By this

proclamation the existing Portuguese law in the island was replaced by the English

law. From then onwards, the English law became the law of the island in all matters.

Under this proclamation a new judicial system was also established under which three

types of Courts were created.

Court of Judicature.-A Court with Wilcox as its judge, was established to

hear all civil and criminal cases. The Court also had jurisdiction in matters of probate

and testaments. For civil matters the Court sat once a week. All the cases were

decided with the help of jury.

A Court-fee at the rate of 5% was also imposed in civil cases. For deciding

criminal cases, the Court used to sit once in a month. For the purpose of criminal

administration of justice, Bombay was divided into four sections. For each section one

Justice of Peace was appointed' who worked as a committing magistrate. The Justices

of Peace sat in the Court as assessors at the time of the trial.

Court of Conscience.- This Court was also presided over by Wilcox, it was

called as Court of Conscience because it provided quick .and summary justice. It

entertained only petty cases and decided civil matters of value upto 20 xeraphins.

There was no provision for any court-fee. This Court did not have any jury. It could

be said that the judge decided the matter to the best of his judgment.

Court of Appeals.-The Deputy-Governor and Council functioned as Court of

Appeal. They heard appeals against the judgments of the Court of Judicature in all

matters.

The judicial system which was so established under the plan of 1672 worked

well. It was quick, inexpensive and efficient. Its main defect was that the Judges did

 

 

not enjoy independence required for good administration of justice. They were not

paid properly; were always under the subjection of the executive and could be

harassed by the officers of the Company. This system worked till 1683 when the

Keigwin's rebellion brought it to an end by capturing the island. The island remained

under the rebellions for about a year. It was recaptured by the Company in 1684.

After its recapture the company established a new judicial system in it.

Second Stage (1684-1693).-Under the new system of judicial administration,

a Court of Admiralty was established in Bombay on the lines of the Court of

Admiralty established in Madras under the Charter of 1683. Basically the Court had

jurisdiction in admiralty and maritime matters. But due to the absence of any other

Court, even civil and criminal matters went to this Court. After some time dispute

arose between the Governor and Council and the Judge-Advocate of the Court of

Admiralty about their respective jurisdictions. Consequently this Court was deprived

of civil and criminal jurisdiction in 1685.

To deal with the civil and criminal matters, a Court was established on the lines of the

Court of Jurisdicature created under the plan of 1672. But the jurisdiction of this

Court and of the Court of Admiralty were not clearly demarcated. Therefore, disputes

of jurisdiction, between these two continued to arise. Bitterness between the Judge-

Advocate and the Governor increased to the extent that after the retirement of the first

Judge-Advocate, no other lawyer-member was ever appointed to the Court of

Admiralty. In the absence of the lawyer-member the Court could .x function on the

expected lines.

In 1690, one Siddi Yakub, Admiral of the Mughal Emperor, attacked the

island of Bombay and captured it. It remained under his occupation till 1718. Nothing

is known about the judicial system which existed on the island during Siddi's

occupation. In 1718, when the Administration of the island again came into the hands

of the Company a new judicial S\'Stem was established for it.

Third Stage (1718 t6'1'(26).-On 25th March, 1718 a Court with Chief Justice

and 9 judges was established. Out of the 9 judges, five were English and four were

Indians. The Court thus represented the major Indian communities through the four

judges who were known as 'Black Justices'.

 

 

The Court had jurisdiction in all criminal and civil matters. In the

administration of justice, the Court applied the principles of equity, justices and good

conscience, and the rules made by the Company from time to time. Application of

law, however, had to be in confirmity with and not contrary to the laws of England.

Apart from deciding civil and criminal matters, the Court also had the jurisdiction in

the matters of probates, and testaments. It also functioned as Registration Office.

The Court used to sit once a week to decide all cases. There was no specified

law which the Court had to apply and, therefore, it gave a summary and ready justice

in all cases which came before it. No rules of procedure or evidence were prescribed

for the Court.

Civil cases which came before the Court were small in number and petty in

nature, not involving any intricate issues. Many of these cases used to be decided

according to the personal laws of the parties or the customs prevailing among the

communities to whom the disputes related.

Criminal cases which came before the Court were of varied nature. They

extended from minor offences to capital offences. The Court could give judgment and

punishment in every minor or major offence. In enforcing punishments generally the

rules of English law were observed, yet the punishments were severe and sometimes

there was no relationship between the punishment and the offence. A curious

punishment which no body will support today was the punishment of detention in jail.

No time limit of imprisonment was prescribed, whipping was a common punishment.

The presumption of innocence of the accused and benefit of doubt to him also did not

get recognition in this Court. The jury system which existed earlier was also given up

and the Court decided all cases without jury.

In Ram Kanati's case, Kanati was arrested on the charge of being involved

with a dacoit Angira on a dancer's hearsay evidence who told that dacoit Angira told

her the same. Ram Kanati's property was confiscated and he was granted perpetual

imprisonment, because of fictitious charges which the Governor and Council had

framed.

Conclusion.-The system established in 1718 was an improvement upon the

earlier system-at least to the extent that the participation of Indian judges was allowed

 

 

in the administration of justice. This helped the Court in winning the confidence and

respect of the local people. The internal position of the Company did not, however,

allowed the Court to function properly. A little bit separation of executive from the

judiciary had been introduced by the Court of 1718, yet the executive, i.e., the

Governor and Council always interfered with the independence of the judiciary. Apart

from that many of the English judges in the Court were the members of the

Governor's Council as well as of the Court. The judges were also the prosecutors. In

many cases the Government of the company itself was involved. In those cases the

judges could not impart impartial justice. Examples "are available where these judges

prepared and procured evidence against the persons who were brought before the

Court for justice. Another anomaly was that being members of the Court as well as of

the Governor's Council, these judges heard appeals as Governor and Council against

their own decisions. In this way" the judicial system was wanting in so many respects.

The canons of natural justice and the principles of law were violated by the defects

which have been just mentioned.

SETTLEMENT IN CALCUTA

Job Charnock, a servant of the company, laid the foundation of the British

settlement in Calcutta, on 24th August, 1690. It began with the establishment of a

factory at Sutanati on the banks of river Hugli. A fort was built which was named as

Fort William. Eight years after, in 1698, the Company secured the zamindari of three

villages, namely Calcutta, Sutanati and Govindpur from the Subedar of Bengal, Prince

Azimush-sher, one of the grandsons of Aurangzeb.

As zamindar the company obtained all the privileges available to the

zamindars. The zamindars enjoyed almost unlimited rights and privileges. If the ruler

got the revenue in time, he did not care about the acts of zamindars within their

zamindari. Although the Mughal mlers had established a hierarchy of Courts1 and

also a good administration of justice, yet after Aurangzeb, it began to tremble and lost

its importance and prestige. The Nawab had no proper control/over them. He became

idle and left his judicial work to his subordinates. Similarly, at the lower levels the

persons to whom the administration of justice was assigned did not perform it

properly unless they were paid some gratification. In these circumstances it could be

 

 

assumed that the zamindars, who were responsible for the collection of the revenue,

exercised all those powers which they thought were necessary in their interest. They

could inflict any punishment on any person without any fear of action. No action

could be taken against them even if they condemn a person to death. In civil matters

they decided as they wished without regard to the claims of the parties. This was the

state of affairs when the company became the zamindar in Bengal.

Judicial system under the Company.-Company as zamindar appointed an

officer with the designation of Collector to collect the land revenue from the tenants.

He was also given civil, criminal and revenue powers to decide disputes arising within

his jurisdiction. There was no specific direction to the Collector about how the law

was to be applied in deciding disputes which came before him. Therefore, he

generally decided matters according to his own discretion or according to the customs

and usages applicable in the locality. Appeals against the judgment of the Collector

went to the Governor and Council. If the Collector gave any death sentence, it was to

be confirmed by the Governor and Council. Serious criminal and civil matters relating

to Englishmen did not come within the jurisdiction of the Collector and were decided

by the Governor and Council.

Although the Company was merely a zamindar under the Mughal Nawab just

like any other zamindars at that time, two important differences were made. First,

while the appeals against the judgments of other zaminelars went to the Courts of the

Nawab, the appeals from the Collector went to the Governor and Council. Second, in

the case of other zamindars the death sentence was confirmed by the Nawab, while in

the case of Company, that job was performed by the Governor and Council without

reference to the Nawab. From these differences it appears that the Company began to

exercise its independence at Fort William from the very beginning.

The judicial system established by the Company in Calcutta was very

elementary. No specific provision was made about the procedure the courts had to

follow and the canons of law and justice they had to observe. This arrangement could

hardly be called judicial system. It was merely a matter of administrative

convenience. It continued until the Charter of 1726 established a new and uniform

judicial system in all the three Presidencies.

 

 

 

 

ESTABLISHMENT OF CROWN’S COURTS IN INDIA:

THE MAYOR’S COURT

CHARTER OF 1726

The Charter issued by King George I on 24th September, 1726 marks the

beginning of Crown's courts in this country. The Company under the previous

Charters was finding itself unable to cope up with the problems which arose due to its

extended and enlarged establishments. Therefore, it requested the King to issue a

Charter by which special power could be granted to the Company. The main reasons

for such request appears to be the following:-

1) One reason mentioned in the request of the Company was the

"real want at Madras, Fort William and Bombay of a proper and competent

power and authority for more speedy and effectual administration of justice in

civil cases, and for the trying and punishing of capital and other criminal

offences and misdemeanors". In the preceding chapter we have noted the kind

of poor judicial system that existed at the above mentioned places.

2) Another reason was the lack of jurisdiction with the then

existing courts to grant probates and letters of administration in cases where

the executors of the deceased or his legal representatives if he died intestate,

were not in the British settlements in India. According to the then existing

practice, in such cases the Council took possession of the effects of the

deceased servant and sold them by public auction and deposited the proceeds

in the Company's treasury for the benefit of the Indian Legal & Constitutional

History deceased's heirs. But this arrangement sometimes gave rise to

troublesome suits against the Company, which, the Company not only had to

defend but also had to pay compensation and costs sometimes.

3) A third reason connected with the second was the seizure of

property by the Governor and Council of the covenanted servants of the

Company alleged to be indebted to the Company Such seizure of property

could be disputed by the concerned servant in the courts in England. If the

courts came to the conclusion that the seizure was illegal or that the property

was of more value than the amount of debt, the Company had to pay the

 

 

penalty for illegal seizure and interest on excessive amount. The Company

wanted to avoid this kind of litigation in England. Therefore, not only it

wanted the establishment of courts "with civil and testamentary jurisdiction to

take cognizance of such cases, but also to establish them under authority that

would be recognized by the English Courts".

4) A fourth, but weak, reason mentioned by Fawcett was the

absence of a proper authority to deal with the indiscipline and the serious

crimes committed by the military persons. A court was needed in India to

punish all such acts effectively.

Accepting the request of the Company, the king granted the Charter of 1726

which provided for the following judicial machinery.

Mayor's Courts.-A Mayor's Court was established superseding· all the

existing courts established in Bombay, Madras and Calcutta. The Court consisted of a

Mayor and nine Aldermen, seven of whom including the Mayor, were required to be

natural born British subjects. Aldermen were elected from among the leading

inhabitants of the settlement to hold office for life. The Mayor was elected from

among the aldermen. Subject to appeal to the King-in-Council they could be

removed· from office by the Governor and Council, on the ground of misbehaviour.

The Court was declared a Court of Record and was empowered to try, hear and

determine all civil suits, actions and pleas between the parties arising within the

Presidency towns or factories subordinate to them and to grant probate of wills and

letters of administration.

The Charter did not specify the law applied by this Court. It simply said that

the Court will try, hear and determine all matters "according to justice and right". In

view of the past practice and &e Charter of 1661 these words were interpreted to

mean "according to the laws of England". Subsequent history, however, established

that the statutory laws of England passed after the issuance of the Charter of 1726

were not applicable in India. Since the Court applied the English law, it also followed

the practice and procedure of the courts in England.

 

 

Appeals from the decisions of the Mayor's Court were filed in the Court of the

Governor and Council. A second appeal in cases valued at 1,000 pagodas or more

could be made to the King-in-Council in England.

Court of Governor and Council.- The Charter of 1726 also constituted a

Court of Record consisting of the Governor and Council of each Presidency to hear

civil appeals against the decisions of the Mayor's court and to decide criminal cases.

The Governor and five members of the Council were appointed Justices of Peace and

constituted a criminal court of Oyer and Terminer, and were authorised and required

to hold Quarter Sessions four times a year for the trial of all offences except high

treason.

A petty jury of twelve persons for the actual trial and a grand jury of twenty-

four persons for preliminary finding of all offence assisted the Court in the same

manner as did under the Commissions of Oyer and Terminer and Goel Delivery in

England.

Legislative Powers.-The Charter of 1726 authorised the Governor and

Council of each Presidency to make bye-laws, rules and regulations for the good

governance of the Company and of the inhabitants of the Presidency. This power was,

however, subject to the following limitations:-

The laws made by the Governor and Council

1. must be "agreeable to reason"

2. must not be "contrary to the laws and statutes of England", and

3. were ineffective until confirmed and approved by the Company's

Board of Directors in England.

Main Features of the Charter.- The following are some of the main features

of the Charter of 1726:-

1. The Charter for the first time established the Crown's Court in India. Hitherto,

whatever courts existed had their origin in the Company. The courts

established by the Charter were the Royal Courts having full recognition in the

British legal system.

 

 

2. The Charter created a uniform system in' all the· three Presidencies of

Bombay, Madras and Calcutta. The different systems existing till then were

replaced by the new.

3. The judicial system established by the Charter was much more regular, clear

and definite than the earlier systems.

4. For the first time the jurisdiction of the King-in-Council was extended to

India. Here lies the introduction of the principles of English law through

judiciary into our land.

5. The Charter created a legislature in each Presidency with the power of making

necessary laws.

6. The Charter is also important for the reason that the statutory laws of England

passed after its issuance did not form a part of the laws of this country. More

important than this is the fact that this Charter introduced into the Presidency

towns the then existing laws of Englands-both common and statutory.

Mayor’s Courts under the Charter of 1687 and 1726: Comparison.- In

Chapter 1we have noted that the Charter of 1687 had also established a Corporation

and Mayor's Court in Madras. But apart from the apparent similarity of names there

was a vast difference between the two Charters. The main differences may be

enumerated as under:

1) The Charter of 1687 applied to Madras only while the Charter of 1726 applied

to all the three Presidencies.

2) The Mayor's Court established under the Charter of 1726 had the jurisdiction

in Civil matters only in addition to its testamentary and probate jurisdiction,

while the court under the Charter of 1687 had the jurisdiction in criminal

matters also.

3) Appeals against the judgments of the Mayor's Court under the . Charter of

1687 went to the Court of Admiralty while from the Mayor's Court under the

Charter of 1726, to the King-in-Council.

4) The Mayor's Court of 1687 was a Court of the Company while the court

established under the Charter of 1726 was the Court of the Crown:',

 

 

5) The Mayor's Court under the Charter of 1687 was better in one respect that it

had a lawyer-member called Recorder while in the Court under Charter of

1726 there was no provision for any lawyer-member.

6) In procedural matters, the court under the Charter of 1726 had to observe the

technicalities of the courts in England while the Court under Charter of 1687

was guided by its own procedure of convenience.

7) In the Court under Charter of 1687 there was good representation of Indians

while under the Charter of 1726 in spite of the provision for two Indian

members none was ever appointed in practice.

8) Under the Charter of 1726 the criminal jurisdiction was completely assigned

to the executive, i.e., the Governor and Council, while under the earlier

Charter it belonged to the Mayor's Court and the Admiralty Court.

Working of the Charter of l726-The provisions of the Charter were

implemented quickly and the new courts started functioning in all the three

presidencies by February 1728. Requisite independence was assured to the Mayor's

Courts and to supervise their functioning the Company required all the three courts to

submit annually the registers of their proceedings to be scrutinised by counsel

appointed by the Company. "With the Charter the Company had sent each Presidency

a book of instructions and multifarious forms as to the Method of Proceedings in civil

suits, Sessions trials, probate and administrative work". Thus "the Company made

considerable efforts to keep the courts in straight and narrow path of English law".

Very soon, however, the independence of the courts and their strict adherence to

English law became the cause of the following difficulties:-

1. Hostility arose between the Mayor and the Governor and Council. Mayor

wanted to exercise judicial independence but the Governor and Council did

not like any person to be fully independent from its authority. Therefore, they

began to dictate their terms to the Mayor's Court in the exercise of its judicial

functions. Relation between the two worsened and things went to the stage of

breaking down.

2. About the natives, jurisdiction of the Mayor's Court was not clearly specified.

It was not clear whether the matters belonging to the natives were within the

 

 

jurisdiction of the Court or not. In a case the Mayor's Court ordered the release

of a Hindu son Indian Legal & Constitutional History from the custody of his

father on the application of his mother who had converted to Christianity. The

Court's order was reversed by the Governor and Council on the ground that the

Mayor's Court had no jurisdiction to interfere in the religious matters of the

natives.

3. In Madras, a dispute arose on the taking of oath before the Court. A Hindu

would like to take oath on the cow or the Gita, but the Mayor's Court insisted

upon the taking of pagoda (temple) oath. The Hindus complained to the

Governor and Council on this· matter which not only increased the bitterness

between the Mayor's Court and the Governor and Council but also compelled

the Directors of the Company to write a letter favouring the Governor and

Council.

4. The Mayor's Court annoyed the natives by applying the principles of English

law to them without regard to their personal laws and customs. On each

occasion when such issues arose the natives complained to the Governor and

Council who sided with the natives. The Governor and Council had to

administer the territory and therefore, they never liked that any court should

cause resentment among the natives against the Company.

5. The Governor and Council heard appeals, from the decisions of the Mayor's

Court. Whenever the wishes of the former were not represented in the decision

of the latter they reversed the decision in appeal.

These are some of the instances of discord and difficulties under the Charter of

1726. Such was the case almost in all the Presidencies. The judiciary did not possess

expert staff with required training for administering justice and the executive did not

have respect for the judiciary which is needed for good administration of justice.

In 1746, the French occupied Madras which remained under their

administration till they surrendered it to the British in August 1749. During this

occupation, the judicial system established under the Charter of 1726 remained

suspended in Madras. The Company availed of this opportunity to request the king to

remove the difficulties caused by some of the provisions in the Charter of 1726.

 

 

Particular attention was drawn to the application of English law to Indians. Accepting

the request of the Company, King George II issued a Charter on 8th January, 1753.

CHARTER OF 1753

Except the following few changes the Charter of 1753 left the system under

Charter of 1726 intact.

1. To avoid the disputes between the Governor and Council, and the Mayor's

Court, the Charter put the latter under the subjection of the former. The

election of Aldermen was abolished and it was laid down that the Aldermen

shall be appointed by the Governor and Council. The Mayor, instead of being

elected by the Aldermen, was also to be selected by the Governor and Council

out of two names of Aldermen suggested by the corporation.

2. Suits and actions between the natives were expressly excluded from the

jurisdiction of the Mayor's Court unless both parties submitted them to its

determination. Natives were also left to take oath "In such manner as they

accorded to their several castes ... to be most binding on their conscience, to

oblige them to speak the truth".

3. The jurisdiction of the Mayor's Court was restricted to suits of the value of

over 5 pagodas.

4. A Court of Requests was created to hear small civil cases upto the value of 5

pagodas. The Court used to sit once in a week. The judges of the court were

called Commissioners who were appointed by the Governor and Council from

amongst the servants of the Company. The number of the Commissioners

were between 8 to 24. Three of these Commissioners used to sit in the court at

one time by rotation. The Court used to give quick judgments in the cases

coming before it. It also had the jurisdiction to decide the matters of native

people.

Criticism.- The judicial plan of 1753 and of 1726, though made some far-

reaching changes, were not enough to provide a sound administration of justice. In

many respects it was defective and in some respects it took retrograde steps. Some of

the outstanding defects may be enumerated as below:-

 

 

1) The judicial system which was established by this Charter was executive

ridden. The Mayor's Court was fully subjected to the authority of the Governor

and Council by putting the nomination and appointment of the Aldermen in

the hands of the Council. Being under the pressure of the executive the court

always worked according to their wishes at the cost of its independence.

2) The constitution of the court was such that no impartial justice could be given

in those cases where the dispute was between a Company's servant and an

Indian, because the members of the court themselves· were servants of the

Company and they never Indian Legal & Constitutional History liked that

their co-brothers should be harassed in their disputes with the Indians.

3) There was no difference between the executive and the judiciary in the

criminal matters as all the judges of the criminal court were the members of

the Governor's Council.

4) The judiciary suffered from lack of legal knowledge. It knew neither the

English law nor did it understand the laws and customs of the natives.

Whatever it decided was the self interpretation of law and full discretion of its

members. The observation of Kaye is worth noting in this respect. He says

"Justice gained little by the establishment of the Mayor's Court" as it was

composed of "the Company's mercantile servants-men of slenderest legal

attainments, and the slightest judicial training."

5) There was no proper control or supervision over courts. The only control was

of the executive, i.e., the Governor and Council, which was not conducive to

the administration of justice. Provision was made for appeals to the King-in-

Council in matters of high amount but in practice hardly anyone took an

appeal to that court. Therefore, the King's Council also could not exercise

effective control.

6) The jurisdiction of the court was limited only to Presidency towns. Even

Englishman living outside the limits of the Presidency towns escaped from the

jurisdiction of these courts. They committed offences inside the country and

yet could not be brought before the Company's Court as their jurisdiction did

not extend to countryside. On the contrary, many natives living within the

jurisdiction of the courts were subjected to English law of which they had no

 

 

knowledge and which was different from their laws, customs and habits. The

natives were, therefore, put under a law which they could not even

contemplate.

7) There were no lawyers to defend the parties. Some Attorneys had been

allowed by the court to appear for the parties but these Attorneys also were not

well conversant with the laws of England and India. Apart from that, they

could not defend the parties independently. Action could be taken against

them if they prosecuted any case against the Company or its government.

8) The representation of Indian judges which 'had been provided earlier in some

courts in Bombay and Madras was practically denied in these courts. The non-

representation of the Indians caused much resentment among the natives.

This was the state of affairs under the Charter of 1753. In such position the

House of Commons appointed a Committee of Secrecy in 1m to scrutinize the affairs

of the· Company and to report on the administration of justice and on the relations

between the judiciary and the executive. On an adverse report on the functioning of

the Company the judicial system was overhauled and a Supreme Court was

established in Calcutta in 1774.

COURTS FOR NATIVES

The courts discussed above were created for deciding mainly the disputes of

the Britishers and other foreigners. The natives were generally excluded from their

jurisdiction. For them other courts were created. In the three Presidencies different

types of such courts existed. The position of each Presidency may be discussed

separately.

(1) Madras.-In Madras, the Choultry Court existed to decide the cases upto

the value of 20 pagodas. This Court continued to decide cases upto 1774, when some

temporary arrangements were made by the Company's Directors and the Choultry

Court was temporarily abolished. But it began to work again in 1775 and continued

till 1800 when it was finally abolished. After it a court under a servant of the

Company was created to decide the disputes between the natives upto the value of 5

pagodas. This Court was replaced in 1798 by the Recorder's Court.

 

 

(2) Ca1cutta.-In Calcutta, the natives had been put under the jurisdiction of

the Zamindar's Court. The Company as Zamindar administered justice in their

disputes. However, some disputes arose between the Zamindar's Court and the

Mayor's Court over their jurisdiction. The Mayor's Court contented that it had

jurisdiction in all civil matters while the Zamindar'sCourt did not accept it. In one

case matters went to the extent that one Sad a Shiv Dass was put into jail by the

Zamindar for filing a complaint in the Mayor's Court. Similar disputes arose with

respect to foreigners who were not Englishman or Indian natives. In 1775, the

Zamindar's Court decided a case relating to an European, who was not an

Englishman. The Mayor's Court complained of it to the Governor and Council and

ultimately a rule was made that the Zamindar could decide the cases of Hindus and

Muslims only and not of other foreigners.

The Zamindar's Court was manned by a single person and thus one individual

enjoyed many powers. It was thought necessary that some changes should be

introduced. Accordingly, a civil court of Company's five servants was created to

decide civil suits above Rs. 20 with a right to appeal to the Governor and Council in

cases above the valuation of Rs' 100. On criminal side also some reforms were made.

Justices of the peace were appointed to decide criminal cases. The capital offences

were tried by a Bench of three Justices of peace. The Justices of Peace were entitled

to give any punishment including the punishment of death. However, death sentence

had to be confirmed by the Governor and Council before it was executed.

(3) Bombay.-In Bombay, no separate courts were established to decide

disputes among the natives. The reason was that the Company made a claim of full

sovereignty over the Island and, therefore, they did not want to treat the natives

differently.

CHAPTER XII

THE INDIAN HIGH COURTS

 

 

Prior to the passing of the Indian High Courts Act, 1861, there existed dual

system of courts in India, namely, the Crown’s Courts and the Company’s Courts.

The Supreme Courts’ established in the Presidency towns of Calcutta, Madras and

Bombay were the courts of the British Crown while the Adalats established in the

Mofussil areas were the courts of the East India Company. The courts had two

different sets of organisations jurisdiction and powers. The functioning of courts in

the Presidency towns was different from that of the mofussils of which they were the

capitals.2 The existence of two parallel sets of courts namely, the Supreme Court and

the Sadar Adalats in the Presidency towns created great confusion and uncertainty

about their respective jurisdictions. The Crown’s Courts and the Company’s Courts

mainly differed in following aspects:

1. The Supreme Court consisted of professional lawyers as Judges and only

those who were Barristers of atleast five years standing could be appointed as a Judge

of this Court but the Judges of the Company’s Adalats were mostly lay persons

without any professional or legal experience.

2. The Judges appointed in the Supreme Court held office during Crown’s

pleasure whereas the Judges appointed in Company’s Adalats held office during

Company’s pleasure.

3. There was no hierarchy of courts in Crown’s Court but there was a regular

hierarchy of civil and criminal courts in the Company’s judicial arrangement. The

Sadar Diwani Adalat and the Sadar Nizamat Adalat of the Company had only

appellate jurisdiction but the Supreme Court had both, original and appellate

jurisdiction.

 

 

4. The laws applied by the two sets of court were different. The Supreme

Court applied English law in deciding civil and criminal cases. The Company’s

Courts applied native laws for deciding cases relating to inheritance, succession,

contract etc. However, consequent to the passing of the Charter Act of 1833, the

Supreme Court was also bound by the regulations passed by the Governor-General-in-

Council. Thus both the sets of courts were administering justice according to the laws

and regulations by the Governor General-in- Council after 1833.

5. The Supreme Court mostly followed English law of evidence as far as

possible whereas the Company’s Courts mostly followed the customary law

ofevidence as derived from Hedaya and applied Anglo-Mohammedan law in deciding

criminal cases.

The uncertainty about the jurisdiction and the law applicable by these two sets

of courts created conflict and confusion. Therefore, it was necessary to merge these

courts into one single judicial system. In 1829, Sir Charles. E. Grey, the Chief Justice

of the Supreme Court at Calcutta emphasised the need for the fusion of these two rival

courts functioning in the Presidency towns. The need for the amalgamation of these

courts was further highlighted by Sir Metcalfe. The process of unification was,

however, completed in three distinct phases as mentioned below.

As a first step towards amalgamation of Crown’s Courts and the Company’s

Courts into a single judicial system, a Central Legislative Council was established in

India under the Charter Act of 1833. The laws and regulations passed by the Council

were equally binding on all the courts whether established by the Crown or the

Company. The result was that the Supreme Court of the Presidencies lost its

privileged position. the Act of 1833 also provided for the appointment of a Law

Commission to work out an uniform system of laws and police for the country. Thus

the Act marks the beginning of the condification of laws in India.

 

 

In the second phase of unification of the Supreme Court and the Sadar

Adalats, the Law Commission stressed on the need for a codified procedural law

before such fusion. The Bill for the fusion of these two sets of courts was finally

introduced by Sir Charles Worel in 1853. Consequently, a codified civil procedure

was enacted in 1859 and the Penal Code was enacted in 1860.

In the third and the last stage, the East India Company was dissolved by the

Crown’s Act of 1858 and the responsibility of the entire government of India, passed

on to the British Crown. Finally, the Indian High Courts Act was passed by the British

Parliament on August 16, 1861 by which the Supreme Court and the Sadar Adalats of

the Presidency towns were merged together to be known as the High Court of

Judicature at Calcutta, Madras and Bombay.

The Indian High Courts Act, 1861:

The Indian High Courts Act,3 1861 authorised the British Crown to establish a

High Court in each of the Presidency towns. Thereupon, a Charter was issued by the

British Crown in May 1862 to establish a High Court at Calcutta and the Crown again

issued a Charter in June 1862 for establishment of a High Court at Madras and

Bombay.

With the establishment of the High Court of Judicature at Fort William

(Kolkata), the existing Supreme Court and Sadar Adalats (Sadar Diwani) Adalat and

Sadar Nizamat Adalat) were abolished and their jurisdiction and powers were

transferred to the newly created High Court.

Constitution:

Each High Court was to consist of a Chief Justice and not more than fifteen

puisne Judges, of whom not less than one-third were to be barristers of minimum five

 

 

years’ standing and one-third were to be members of the Company’s Civil service

having not less than ten years standing including a minimum experience of three years

as a Zilla Judge. The remaining Judges could be either from the Bar or the civil

service i.e. persons who had practised as pleaders in the Sadar Adalat or the Supreme

Court for at least ten years or persons who had held judicial office not inferior to that

of Principal Sadar Ameen or a Judge of a Small Cause Court for not less than five

years.

It was further provided that the Judges of the Supreme Court and the Sadar

Adalats were automatically to become the Judges of the newly created High Court

without the necessity of a specific appointment and the Chief Justice of the Supreme

Court was to be the Chief Justice of the High Court of Kolkata. The Judges of the

High Court were to hold office during Her Majesty’s

pleasure.

Jurisdiction:

The High Court was to be a Court of Record. It was to have original and

appellate jurisdiction over civil, criminal, admiralty, testamentary, intestate and

matrimonial causes. It was also to exercise power to superintendence over all

subordinate courts. One of the Judges of the High Court was to hold a separate court

for relief to insolvent debtors.

The original jurisdiction of the High Court was similar to that of the

jurisdiction exercised by the Supreme Court before the establishment of the High

Court. However, unlike the earlier Supreme Court, its jurisdiction was limited to the

local limits of the Presidency town.4 It was given the power to try and determine suits

in which the cause of action arose within the local limits of Kolkata or at the time of

commencement of the suit the defendant resided or carried on business or worked for

gain within the limits of Calcutta. It could decide all civil suits excepting those in

 

 

which the subject-matter involved was less than Rs. 100/- in value which were triable

by the Small Cause Court.

The High Court had original criminal jurisdiction over all persons residing

within the Presidency Town of Calcutta. It also had criminal jurisdiction over all

Britishers and Europeans residing beyond the local limits of Calcutta. It had extra-

ordinary jurisdiction to try and determine the offences committed by persons residing

in places within the jurisdiction of any court which was subject to its superintendence.

The High Court was given appellate jurisdiction over civil as well as criminal

cases decided by the courts subordinate to it. It was also to be Court of reference and

revision for the subordinate criminal courts which were subject to its superintendence.

In addition, it could transfer any criminal case from one court to another court.

The High Court was also empowered to admit and enroll Advocates and

Vakils. It could also take disciplinary action against them. The qualifications

necessary for advocates, pleaders and Attorneys were to be laid down by the High

Court.

Appeals:

The decision of the High Court was final in appeals from criminal cases and

no further appeal lay to any other court. However, in civil cases appeal from the

decision of the High Court lay to the Privy Council provided the pecuniary value of

the suit was not less than Rs. 10,000/- or the High Court certified the case as fit one

for appeal to the Privy Council. Besides, an appeal to the Privy Council was allowed

from any decision or order of the High Court made in exercise of its original

 

 

jurisdiction or in any case where any point of law was involved and the case was

certified fit to be taken to Privy Council.

Procedure:

The Charter establishing the High Court at Calcutta (now Kolkata) authorised

the High Court to make rules and orders for regulating all the proceedings including

civil, maritime, testamentary, intestate and matrimonial cases. However, in making

such rules and orders, it was to be guided by the Code of Criminal Procedure, 1859.

In the exercise of its original criminal jurisdiction, it was to adopt the same procedure

as was followed by the Supreme Court immediately preceding it, and in other criminal

cases, the Code of Criminal Procedure, 1861, was to guide the proceedings.

Establishment of other High Courts:

By the Crown’s Letters Patent of June 26, 1862, the High Courts of Bombay

and Madras were established in pursuance of the High Courts Act, 1861. The High

Court Act, 1865 empowered the Governor General-in-Council to alter the local limits

of the jurisdiction of the High Courts established under the High Courts Act of 1861.

This power of the Governor-General was subject to the approval of the Crown. The

British Crown further issued a Letters Patent on March 17, 1866 under the High

Courts Act of 1861 establishing a High Court at Agra which was later shifted to

Allahabad in 1875. This High Court was not conferred any original civil jurisdiction

and jurisdiction in insolvency cases. It also did not have admiralty jurisdiction.5 A

High Court was established at Patna in 1916 which was given admiralty jurisdiction

also In 1919, a High Court was established at Lahore.

The High Courts Act, 1911:

 

 

Subsequently, the High Courts Act, 1911 was passed whereby the maximum

number of Judges in each High Court was raised from 16 to 20. The Act also

empowered His Majesty to establish additional High Courts and gave power to the

Governor General to appoint additional Judges for a period of two years.

High Courts under The Government of India Act, 1915:

The Government of India (Consolidating) Act, 1915 was passed by the British

Parliament on July 27, 1915 for consolidating and re-enacting all the provisions

relating to the Indian High Courts Act enacted earlier, Under this Act, the existing

High Courts were repealed and several changes were introduced in the composition,

jurisdiction and the laws applicable in these Courts.

The Act of 1915 provided that each High Court was to consist of a Chief

Justice and as many Judges as appointed by His Majesty not exceeding twenty. The

Governor General-in-Council was empowered to appoint additional Judges for a

period not exceeding two years. The qualifications for appointment of a person as a

Judge of the High Court were as follows

(i) He should be a Barrister or an advocate of Great Britain of not less than five

years standing; or

(ii) A member of Indian Civil Service for not less than ten years including

experience of 3 years as a District Judge; or

(iii) A person who has held judicial office, not inferior to that of a Small Cause

Court for a period of not less than five years; or

(iv) A person who has been a pleader of a High Court for not less than ten years.

The Act specifically provided that in all cases atleast one-third Judges of a

High Court including the Chief Justice but excluding the Additional Judges, had to be

Barristers or Advocates and atleast one-third of them were required to be the members

of the Indian Civil Services. The Judges held office during the pleasure of the Crown.

 

 

All the High Courts were to be the Courts of Record. They enjoyed the same

powers and authority for administration of justice as were vested in them at the

commencement of the Act. However, they did not have any jurisdiction in revenue

matters. The High Court could make rules and prescribe form for regulating the

procedure of its subordinate courts and had power of Superintendence over all the

courts which were subject to its appellate jurisdiction.

The High Court was to apply personal law or customary law of the natives in

deciding their cases relating to inheritance and succession of lands, rent and goods or

contract provided both the parties were subject to same personal or customary law. If

the parties were subject to different personal laws and Customs, then the suit was to

be decided according to the law of the defendant.

The Act provided that the Governor General, Governors , Lieutenant

Governors, Chief Commissioners and the members of the Government’s Executive

Council were immune from the original jurisdiction of the High Courts for any thing

ordered or done in their official capacity nor could they be arrested or tried in any

proceeding in the High Court except for the offence of treason or felony.

High Courts under the Government of India Act, 1935:

The Government of India Act, 1935 repealed all the earlier Acts. Under this

Act, every High Court was to be a Court of Record. It was to consist of a Chief Justice

and such other Judges as were appointed by His Majesty from time to time.6

However, the number of Judges so appointed together with the additional Judges

appointed by the Governor-General was not to exceed such maximum number as His

Majesty might fix in relation to the Court. The Judges were to hold office until the age

of sixty years. They could, however, be removed from office earlier on the ground of

 

 

misbehaviour or infirmity of mind or body on the recommendation of the Privy

Council . The Governor General was empowered by the Act to appoint Additional

Judges for two years to cope up with the arrears of work pending in different High

Courts. The Act abolished the earlier system of appointing one-third Judges from

amongst the Barristers and Advocates and one-third from the Indian Civil Services.

The qualifications for appointment as a High Court Judge remained more or less the

same as under the Act of 1915. However, the rule prescribing that a person appointed

to hold office of Chief Justice of a High Court should be a Barrister of England or

Ireland or an Advocate of Scotland was abrogated and now even an Indian who had

served as a Judge of a High Court for not less than three years, was eligible to hold

the office of the Chief Justice. An Indian member of the Bar could also be appointed

as Chief Justice of a High Court provided he fulfilled the requisite qualifications.

The Act further provided that the salaries and pensions of the Judges of the

High Court were to be fixed by His Majesty and could not be changed to the

disadvantage of any of such Judge.

The jurisdiction of the High Courts under the Government of India Act, 1935

remained the same as those of the High Courts immediately before the

commencement of the Act. Thus they did not have original jurisdiction in revenue

matters.

All the laws in force in British India immediately before the commencement

of the Act of 1935 were to continue until they were annulled or repealed or amended

by a competent legislative authority.

 

 

The High Courts were empowered under the Act to get a case transferred to

itself from any of its subordinate courts, on application by the parties. They had power

of superintendence over all the courts subject to tFeir appellate

jurisdiction.

Appeals from the decisions of the High Court could be taken to the Federal

Court7 established under the Government of India Act, 1935. An appeal from

the judgment, decree or final order of the High Court could be filed in the Federal

Court only if the High Court certified that the case involved a substantial question of

interpretation of the Act or any order of the Council. Under certain circumstances, an

appeal could be taken to the Federal Court even without such certificate of fitness

provided the value of subject matter of the civil case in dispute was not less than fifty

thousand rupees or such other sum as might be specified by the Act, or the case

involved directly or indirectly some claim of property of equivalent value, or the

Federal Court itself granted special leave to appeal in certain cases.

The Government of India Act, 1935 also empowered His Majesty to issue

Letters Patent constituting or reconstituting a High Court for any Province or part of

it.8 Consequently the following High Courts cme into existence.

The Court of the Judicial Commissioner for Central Provinces was replaced by

the High Court of Nagpur in 1936. Later, after integration of Nagpur in Maharashtra,

a High Court of Madhya Pradesh at Jabalpur was established in 1956, which

comprised the areas of erstwhile Central Provinces.

A High Court was established at Gauhati for Assam in 1948 which exercised

powers and authority, similar to those of the High Court of Calcutta.

 

 

The High Court of Orissa was established in 1948 at Cuttuck and the Patna High

Court ceased to exercise jurisdiction over the Province of Orissa.

A High Court was set up at Jodhpur for the State of Rajasthan in 1949.

The High Court of Travancore-Cochin was established at Ernaculum in December,

1949. Later, this State came to be known as the Kerala State and therefore, the High

Court was also called as the High Court of Kerala.

There already existed a High Court of Jammu and Kashmir prior to the Indian

Independence, which functioned under the erstwhile Maharaja with its seat at

Srinagar.9 After Independence it is functioning as Jammu and Kashmir High Court.

The State of Andhra Pradesh was formed in 1953 and a High Court for the

state was established at Hyderabad in July 1954. This Court had its jurisdiction

similar to that of the High Court of Madras.

The State of Gujarat came into existence under the Bombay Reorganisation

Act, 1960. Consequently, a High Court for Gujarat was established at Ahmedabad in

May 1960, which was to have similar powers and jurisdiction as the High Court of

Bombay (now Mumbai).

After the formation of the State of Nagaland in 1962 the Assam High Court at

Gauhati came to be known as the ‘High Court of Assam and Nagaland’.

 

 

A High Court existed in Mysore even before the Indian Independence. It was

established under the Mysore High Court Act, 1884. The jurisdiction and powers of

this High Court were redefined by the Mysore High Court Act of

1964.

High Courts After the Indian Independence:

The Constitution of India provides for the establishment of a High Court for

each State.1° However, the Parliament may establish a common High Court for two

or more States, or two or more States and a Union Territory. Each High Court shall

have a Chief Justice and such other Judges as the President may appoint from time to

time. The manner and procedure of appointment of Chief Justice and the Judges of the

High Court is contained in Article 217 (1) of the Constitution and the conditions of

eligibility for their appointments are laid down in Article 217 (2). The tenure of the

Judges of the High Court is secured by Article 2.24 of the Constitution so as to enable

them to perform their functions without far or favour. They are completely

independent of the executive control.

Jurisdiction:

Each High Court shall be a Court of Record and as such it shall have the

power to punish for its contempt. The provisions of the Code of Criminal Procedure

are not applicable for such contempt proceedings and the High Court follows its own

procedure for this purpose. However, the person charged with contempt has to be

apprised of the charge against him and given reasonable opportunity to defend

himself.

The decisions of the Privy Council or Federal Court are binding upon the High

Court until the Supreme Court held a contrary view.’1 The jurisdiction and powers of

 

 

the High Court and the law administered by it and rules framed for regulating its

sittings shall be the same as immediately before the commencement of the

Constitution.12

The Writ Jurisdiction:

Article 226 of the Constitution empowered the High Court to issue writs in the

nature of habeas corpus, mandamus, prohibition, quo-warranto and certiorari or any of

them, to any person or authority including the Government in appropriate cases within

its territorial jurisdiction for the enforcement of fundamental rights and for any other

person. It is significant to note that the power conferred on a High Court is not in

derogation of the power conferred on the Supreme Court by Article 32 of the

Constitution.13 It further needs to be mentioned that prior to the Indian Constitution,

the High Courts of the Presidency Towns were empowered to issue prerogative writs

within local limits of their original civil jurisdiction.

Significantly, the power of the High Court to issue writs under Article 226 is

wider than that conferred on the Supreme Court by Article 32 of the Constitution. The

Supreme Court can issue writ only for enforcement of fundamental rights as contained

in Part III of the Constitution, whereas the High Court can issue writ for enforcement

of fundamental rights and also for other purposes, i.e. even for enforcement of legal

rights which are not fundamental. The writ jurisdiction exercised by the Supreme

Court under Article 32 and by the High Court under Article 226 for the enforcement

of Fundamental Rights is mandatory and not discretionary. However, the writ

jurisdiction exercised by the High Court under Article 226 for any other purpose is

discretionary.14 Therefore, relief under Article 226 in case of enforcement of legal

right cannot be claimed as of right. The High Court may refuse to grant relief if there

is delay laches, negligence or omission on the part of the petitioner to assert his

right.15

 

 

The jurisdiction conferred on the High Court under Article 226 (and the

Supreme Court under Article 32) is vast and comprehensive. Therefore, it may grant

anticipatory relief and is also empowered to make declaratory order.

Public Interest Litigation (Epistolary Jurisdiction)

With the development of public interest litigation in India during the late

1970’s, the High Court may entertain any petition, letter or even a news item

published in a newspaper as a writ under Article 226 provided it involves public cause

or public grievance. This is indeed a progressive trend moving in the direction of

liberalising the traditional locus stand i rule:16 As pointed out by justice Krishna Iyer

(as he then was ), liberalisation of locus standi may become necessary to challenge

the administration in following cases :—

1. When corruption permeates the entire fabric of governor and state power is

abused by the authorities;

2. When social justice warrants liberal judicial review of administrative action;

3. to enlarge the interests of public-minded citizens or organisations;

4. when some government agency is left free to violate the law contrary to public

interest.;

5. when ‘activism’ is deemed necessary for ‘participative public justice’.

The High Court also has the power of superintendence over the subordinate

courts or tribunals falling within its territorial jurisdiction under Article 227. This

power extends to judicial as well as administrative matters. However, in practice the

High Court exercises this power rarely where it apprehends gross injustice to any of

the parties. Thus it keeps the subordinate courts within bounds and ensures that they

do not exceed or abuse their jurisdiction.

 

 

Article 228 of the Constitution further provides that the High Court has power

to withdraw the case from any of its subordinate courts, dispose it of by itself or

return it back to the subordinate court after deciding the question of law where it is

satisfied that the case pending in such a subordinate court involves a substantial

question of law, as to the interpretation of the Constitution and determination of

which is necessary for the disposal of the case.

The provisions relating to extension of jurisdiction of High Courts to Union

Territories are contained in Article 230 of the Constitution. The Parliament may by

law, extend the jurisdiction of a Hgh Court or may exclude from it any Union

Territory.

Appeals

An appeal from the decision of a High Court lies to the Supreme Court of

India.17 Any judgment, decree or final order of a High Court in a civil, criminal or

other proceedings can be moved in appeal to the Supreme Court provided a certificate

to that effect is granted by the High Court. Under certain circumstances, the Supreme

Court can itself grant a special leave to appeal on refusal by the High Court to grant a

certificate.

High Courts for Union Territories:

Earlier, the Union Territory of Delhi was within the jurisdiction of the Punjab

High Court. However, a separate High Court for the Union Territory of Delhi was

established in 1966 under the Delhi High Court Act, 1966.

 

 

For the North-Eastern States of India, namely, Manipur, Tripura, Meghalaya,

Arunachal Pradesh, Imphal, Sikkim and Assam there is a High Court set up at Gauhati

with its benches in Imphal and Tripura, one each. Earlier, the Court of Judicial

Commissioner at Manipur and Tripura was exercising powers of appeal, reference and

revision as also superintendence and control over its subordinate Courts. But the

Court of Judicial Commissioner at these two placed were abolished with the setting

up of a High

Court in Gauhati.

The States of Haryana and Punjab have a common High Court with its seat at

Chandigarh. This High Court also exercises jurisdiction over the Union Territory of

Chandigarh by virtue of the Punjab Reorganisation Act of 1966. The Union

Territories of Dadra and Nagar Haveli come under the jurisdiction of the Bombay

High Court by an Act passed for this purpose in 1961. Formerly, Goa, Daman & Diu

were also under the jurisdiction of the Bombay High Court by the Act of 1962 but

now there is a separate High Court for Goa and Panaji.

The jurisdiction of the Madras High Court has been extended over

Pondicherry from November 6, 1962, by the Pondicherry (Administration) Act, 1962.

Critical Appreciation

The Constitution of India has assigned a very important role to High Courts

which are the sole interpreter and guardian of the Constitution and protectors of

fundamental rights of the citizens of India. They exercise their powers and jurisdiction

in a manner so as to ensure even-handed justice to all. However, the extension of the

special jurisdiction of High Courts under various Acts has resulted into heavy arrears

of cases pending in these Courts. The Law Commission,’8 has suggested measures to

cope up with the situation. Some of the recommendations of the Law Commission

suggest that raising the number of Judges in the High Courts, raising their retiring age

 

 

from 62 to 65 years and liberalising their salaries, allowances and pensions etc. may

help in improving the working of the High Courts in India. The Law Commission has

also suggested that the High Court Judges should be selected from amongst the

prominent members of the Bar at a comparatively early stage so that they may not

tend to refuse the appointment. The minimum working days for each High Court

should be atleast 200 days in a year and every Judge should do judicial work at least

for five hours a day. In order to reduce the pressure of appellate work, the Law

Commission has suggested that pecuniary jurisdiction of the High Court for

determining appeals should be substantially raised.

Suggestions:

With a view to bringing about improvement in the standard of working of the

existing High Courts in India, the following measures may be suggested:19—

1. There is need to have more High Court Benches, if not the High Courts, in

major States. This should be done in consultation with the Chief Justice of the

State concerned and concurrence of the Chief Justice of India.

2. Merit and not merely the seniority, should be criteria for the appointment of

Chief Justice of India and the Judges who have less than two years to retire

may not be considered for appointment as Chief Justice keeping in view the

nature and responsibilities of this highest judicial office.

3. The retiring age of the Judges of the High Courts should be raised from 62 to

65 years so that there is no disparity in the age of retirement of the Supreme

Court and High Court Judges. The salaries, allowances and pension etc. of the

High Court Judges should be liberalised so as to attract persons of proven

ability to join the Bench as a High Court Judge.

4. As suggested by Prof. Mittal, Article 217 (2) (a) of the Constitution should be

suitably amended by imposing a condition that for appointment as a High

Court Judge, an incumbent must have held office as a District Judge for at

 

 

least a period of three years. This would eliminate the chances of unworthy

persons getting into this prestigeous post through political maneavouring.

5. In order to reduce the burden to appellate courts, the pecuniary jurisdiction for

civil appeals should be enhanced.

6. Finally, the Judges of the High Courts should not be allowed to practice in any

court after retirement nor should they be allowed to accept employment

anywhere except as a Judge of the Supreme Court. The provisions of the

Constitution should be suitably amended for this purpose.

In fact, there should be blanket bar on the appointment of a retired High Court

Judge or Supreme Court Judge to any office of profit including assignment as a

member or head of any Commission because it adversely effects the independence of

judiciary. The sitting Judges, in the hope of being offered some lucrative post-retrial

assignment may be inclined to be pro-governmental in their approach while

discharging their judicial functions which may not be in interest of justice.

CHAPTER XIV

THE PRIVT COUNCIL

The Privy Council played a very important role in shaping the administration

of justice prior to Indian Independence. It has a great contribution in systematising the

law and administration of justice in India. Its significance becomes all the more

conspicuous when we take into consideration the varieties of people belonging to

different caste, creed and religions etc. who received justice through this august

institution with dispassionate interest. As Dr. M.P. Jam rightly opined, “almost all

systems of our jurisprudence and every type of judicial institution was within the

umbrella of the Privy Council.1 Every kind of dispute was to be adjudicated upon by

the Privy Council because its jurisdictional area covered almost one-fifth of the

human population in the world and hence requires thorough study.”2

 

 

Historical Perspective

The development of the institution of Privy Council is closely related to the

historical developments in England for the preceding nine hundred years. The history

of Privy Council dates back to the Normans who conquered England in 1066 A.D.

They introduced a strong central government which handled the legislative, executive

and the judicial functions of the government. A small council called the Curia Regis

or King‘s Court consisting of feudal Lords was formed to advise the king in

administrative and legal matters. The Council met in different parts of the country at

regular intervals. The Curia Regis conducted its business through two kinds of

meetings: (i) meeting of the entire Curia; and (ii) meeting of the smaller Curia. The

meeting f the entire Curia was arranged on three great festival in a year i.e. Easter,

Whitsun and Christmas when all the feudal chiefs and royal members met together to

consider serious matters. In these meetings they also evolved new laws and settled

disputed cases. The King himself held this Court in person. The origin of the House of

Lords in subsequent years may be traced back to this larger body of Curia Regis, also

known as Magnum Concillium.

The smaller Curia, held its meetings more regularly and frequently to transact

government business involving day-to-day administration, particularly the matters

relating to revenue and finance of the Government. This smaller meeting consisted of

limited number of royal-officials including King’s ministers and his Justiciar and

Chancellor. In course of time, with the progress and prosperity of the country, the

pressure of work on the smaller Curia increased. Consequently, the smaller body was

split into several branches to deal with different subjects separately and came to be

known a King’s Council. It was an important body and acted as an adviser to the

King. It due to the division of the King’s Council in subsequent years that the

common law courts were developed. Despite the separation of common law courts

 

 

from Curia Regis, the King continued to exercise his residual jurisdiction through the

Council which met as the King’s inner body of advisers composed partly of officials

and partly of great nobles. The power of the Council to try criminal cases was limited

to misdemeanours only.

During the Tudor’s rule in England in fifteenth century, the Curia Regis or the

King’s inner Council which mainly consisted of the King’s trusted advisers,

concerned itself with state matters. The ordinances of the Council of 1526

distinguished its executive from the judicial functions. Henceforth, the executive

branch was to attend the King constantly while the Judicial Branch remained at

Westminister and was later known as the Judicial Committee of the Privy Council.

The British empire having acquired many colonies overseas during the 17th century,

it was necessary for the King-in-Council to adjudicate upon the appeals from these

colonies. Consequently, this function was entrusted to the Privy Council in 1572. For

this purpose a special committee called the Judicial Committee of the Privy Council

was formed which acted as the highest appellate institution so far appeals from the

overseas British colonies were concerned.

The jurisdiction of the Privy Council to entertain appeals from the courts in

the King’s Dominions was based on the Royal prerogative of the Sovereign as the

fountain of justice. This prerogative was described long ago in Reg v. Bertand,3 as an

inherent prerogative right of every subject of the King to petition the sovereign for

justice, if he failed to get it in the ordinary courts. In the beginning, the King-in-

Council entertained appeals grace and it was left to the discretion of the Privy Council

to accept the appeal or to reject it. But with the expansion of the British empire, the

right of appeal became the privilege of the King’s subjects and the appeals of this

nature were termed as “Appeals as of right”. Besides, provision was also made for

appeals by special leave which were moved before the Privy Council with its special

permission.

In course of time, petitions in relation to the causes dealt with in the

courts of England came to be brought before the King-in-Parliament and not in King-

 

 

in-Council i.e. Privy Council and thus originated the modern judicial functioning of

the House of Lords to correct the errors from the courts in England.

The Nature and Extent of the Privy Council’s Jurisdiction:

Describing the nature of the jurisdiction of the Privy Council Lord Haldane in

Hull v. Mckenna,4 observed, “we are not ministers in any real sense, we are a

Committee of Privy Councillors who are acting in the capacity of judges….. giving

advice to His Majesty but in a judicial spirit. The Sovereign gives the judgment

himself and always acts upon the report which we make. Our report is made public

before it is sent up to the Sovereign in council. It is delivered in a printed from.”

Thus it would be seen that in practice the privy Council was the last court or

apex court of appeal for colonies and dominions but the decision of the Council was

always in the form of advice and not as a final order as in case of other courts. It used

to be in a form of report tendering advice to his Majesty regarding the action to be

taken in case under appeal. The Report of the Privy Council was, therefore, always

concluded with the words, “Their Lordships humbly advise His Majesty……”

showing that it was a mere

recommendation to the Crown regarding the way in which it might decide the matter

in hand in exercise of its Royal prerogative of justice. It was a well established

convention that King-in-Council always accepted the report of the Judicial Committee

of the Privy Council. The report has to be unanimous as there was no scope for

dissenting opinions of the members.

Commenting on the nature, extent and importance of the jurisdiction of the

Privy Council to hear appeals and petition from colonies, Lord Brougham in his

celebrated speech on Law Reforms in 1828, observed that the Privy Councillors

“determine not only the questions of colonial Law plantation cases but also sit as the

 

 

Judges in the last resort of all prize causes. And they hear and decide upon all our

plantation appeals………….. All this immense jurisdiction over the rights of property

and person, over rights political and legal, and over all the questions growing out of

so vast and varied a province, is exercised by the Privy Council unaided and alone. It

is obvious from the mere distance of those colonies and the immense variety of

matters arising in them, foreign to our habits and beyond the scope of our knowledge,

any judicial tribunal in this country must of necessity be an extremely inadequate

Court of Review. The greatest difficulty in addition was that different colonies had

different law.” Mentioning about India, Lord Brougham pointed out that, “these

variations are still greater since while one territory is swayed by the Mohammedan

law, another is ruled by Hindu law and this again, in some of our possessions is

qualified and superseded by the law of Buddha, the English jurisprudence being

confined to the handful of British settlers and to inhabitants of three Presidencies.”5

In view of the inability of the Privy Council to cope up with these multifarious

problems, Lord Brougham who was himself the Lord Chancellor in 1830, introduced

a Bill on the constitution of the Privy Council. Consequently, an act ‘For better

Administration of Justice in His Majesty’s Privy Council’ was passed on August 14,

1833 in England whereby a Judicial Committee of Privy Council consisting of

President Lord Chancellor Land other Privy Councillors holding high judicial offices

was formed. As stated earlier, the Judicial Committee, in fact did not deliver judgment

but only advised the King in judicial matters who acted on its report and issued orders

in Council to give effect to any advice given by the Committee.

Composition of the Judicial Committee of Privy Council:

A permanent Judicial Committee of Privy Council was set up under the

Parliamentary Act of 1833. The Committee composed of the President of the Privy

Council, Lord High Chancellor, and such other members of the Privy Council as from

time to time held any of the following offices, namely,

 

 

1. The First Lord Commissioner of the Great Seal of Great Britain.

2. Chief Justice or the Judge of the King’s Bench Court.

3. Master of Rolls.

4. Vice Chancellor of England.

5. Chief Justice or the Judge of the Court of Common Pleas.

6. Chief Baron of the Court of Exchequer.

7. Judge of Prerogative Court of Lord Arch Bishop of Canterbury.

8. Judge of the High Court of Admiralty; and

9. Chief Judge of the Courts of Bankruptcy etc.

In addition, the King could also provide two other Privy Councillors, to be the

members of the Judicial Committee. By inducting the high judicial officials, the Act

strengthened the legal element in the Judicial Committee of the Privy Council. The

was fixed at four. Two members of the Privy Council who held judicial offices in

India or any of the Dominions could be appointed as Assessors without right to vote

on a salary of £ 400 per annum. The entire appellate jurisdiction of the King-in-

Council was to be exercised by the Judicial Committee of the Privy Council. Thus,

under the Act of 1833, the Judicial Committee of the Privy Council was constituted

as, “an effective Court of Appeal with provision for inclusion of members with

experience of overseas jurisprudence.”6 The Privy Council also granted special leave

to appeal in civil matters involving a substantial question of law.

All appea1s and petitions were referred by the King-in-Council to the Judicial

Committee of the Privy Council. The Judicial Committee was to hold its proceedings

in open court and report its findings and recommendations to the Crown. The decision

of the Judicial Committee was not in the form of judgment but was a sort of

 

 

recommendation made to the King suggesting as to what was proper to be done on the

principles of justice in the given case and it was acted on by the King in full Privy

Council. The King away accepted the report of the Judicial Committee and delivered

judgment accordingly.

Appeals to Privy Council:

In the case of Fryer v. Bernard,7 the Privy Council held that appeals from

overseas Dominions could lie only to the King-in-Council. Thus from the British

possessions beyond seas, petitions seeking justice could go and continued to go to the

King-in-Council which functioned as a court of last resort and as an ultimate court of

appeals from such territories. As the overseas colonies of England increased and

developed from 17th century onwards, the Privy Council’s judicial function assumed

more and more importance. As the underlying idea in submitting appeals to the Privy

Council was to redress the unjust administration of law and justice, and it being an

appeal to the sovereign as the fountain head of justice for protection the appeal was in

the form of a petition to be considered only as a matter of grace. Therefore, it was

within the discretion of the King-in-Council to grant or to refuse leave to appeal. But

with growing Empire and enactment of various statutes by the Parliament allowing

appeals to the King-in-Council from various courts in the settlement under certain

circumstances, the petitionary appeal ripened into a privilege for the King’s subjects.8

Appeals made under such statutory provisions came to be known, as “Appeals as of

Right”. But this did not exhaust the Royal prerogative completely and King-in-

Council still entertained appeal made to it with special permission even though the

circumstances of a particular appeal did not fulfil the requirements expressly made in

respects of “appeals as of right”. These appeals were called as “appeals by special

leave”.

 

 

From the point of view of classification of appeals according to the subject

matter, they could be classified into two broad categories namely, (i) civil and (ii)

criminal.

(i) Appeals in civil matters could be made with or without special leave of the

Privy Council. Appeals without leave were regulated by order in Council or

Imperial Act or local Act. Special leave could only be granted by the Privy

Council, if in its point of law was involved, unless it was restrained by some

statute to do so.

(ii) In criminal cases, an appeal could be allowed by Crown in exercise of

prerogative rights, if advised by Judicial Committee. Such cases were far and

few to be used exceptionally where:

(a) there had been violation of principles of natural justice,

(b) violation of rules of procedures

(c) substantial and grave injustice was caused to the appellant in any

manner.

Special leave to appeal could be granted by the Judicial Committee in cases

where the law had been interpreted in such a manner so as to create a bad precedent

for future and no other course except granting of special leave and intervention by the

Crown, could prevent the consequences thereof.

Appeals from India:

Appeals from the courts in India, i.e. the Crown’s Courts and, the Company’s

Courts lay to Privy Council as of right. These appeals may be discussed under the

following heads :—

 

 

1. Appeals from Mayor’s Courts of 1726.—Appellate jurisdiction of the

Privy Council was made available for the first time to Indians by the Carter of 1726

by which Mayor’s Courts were established in three Presidencies of India. The first

appeal from the Mayors Court lay to the governor and Council of the Settlement. The

decisions of the Governor and Council were to be final all cases involving a subject

matter up to 1,000 pagodas in value. In other cases involving subject-matter worth

more than 1000 pagodas, a further appeal from the Governor and Council lay to the

King-in-Council, within a period of fourteen days from the date on which the

judgment appealed against was recorded.

2. Appeals from the Supreme Court under Regulating Act, 1773.— The

Regulating Act 1773 and the Judicial Charter of 1774, made provision for Supreme

Courts at three Presidencies in place of Mayor’s Court. The Supreme Court started

functioning in Fort William from 1774. An appeal from the decision of the Supreme

Court could be taken to king-in-Council provided the subject-matter in dispute was

worth 1000 pagodas or more. Appeal to King-in- Council in civil cases was to be

made of petition, which was to be moved in the Supreme Court. The Court was

directed not to allow any such appeal unless the petition for that purpose was

preferred before it within six months from the date of pronouncing the judgment.9

However, in criminal matters, the Supreme Court was to have full and

absolute power and authority to allow or deny permission to make an appeal to the

Privy Council. The Supreme Court was given full powers to decide the merits of the

cases which justified grant of leave to appeals. Thus in criminal cases, the Supreme

Court had the discretion to allow or not to allow an appeal to the Privy Council.

3. Appeals from the Recorder’s Court under the Act of 1797.—The

Mayor’s Courts at Madras and Bombay gave place to the recorder’scinj7Jn which the

provisions analogous to those prevailing at Calcutta were made applicable. In 1800, a

Supreme Court was established at Madras in place of Recorder’s Court with

 

 

provisions of appeal to the Privy Council (King-in-Council) similar to those of the

Supreme Court at Calcutta. Likewise, when a Supreme Court was established at

Bombay in 1823, similar appellate provisions with the only difference that the

pecuniary limitation for appeal was Rs. 3000/- instead of 1000 pagodas, were made

applicable. The King-in- Council had a right to refuse or admit the appeal or correct

or vary such decision at its pleasure.

4. Appeals to Privy Council from Sadar Adalats.— Before 1781 i.e. the Act

of Settlement, there was no provision for appeals to the King-in-Council from Sadar

Adalats in Bengal which were established to hear appeals from the mofussils. The Act

of Settlement 1781, however, enhanced the status of the Sadar Diwani Adalat by

constituting in into a Court of Record and conferred it a right of appeal from its

decision to King-in-Council in such civil matters which involved subject-metter

valuing £ 5000 or more. No rules were prescribed to regulate such appeals by the Act

except for prescribing the aforesaid pecuniary limit. It was only in 1797 that

Regulation XVI laid down that the petition of appeal had to be presented to the Sadar

Diwani Adalat wit six months of the date of delivery of judgment appealed against. It

was also clarified that the subject-matter had to be £ 5000 or more, exclusive of the

cost of the suit.

5. Appeal from Sadar Adalats of Madras and Bombay.—A Sadar Diwani

Adalat was established at Madras in 1802. In an appeal from its decision in civil

matters involving subject-matter valuing Rs. 45,000/- and upwards lay to the Sadar

Diwani Adalat at Calcutta. But by an Act of 1818, the Sadar Diwani Adalat at

Calcutta relinquished the authority to hear appeals from the Sadar Diwani Adalat of

Madras and now an appeal from the Madras lay However, there was no restriction as

to the appealable amount.10 Accordingly, appeals from the Madras Sadar Adalat be

taken to the Privy Council even in cases where the value of the subject-matter was

less than £ 5000.

 

 

In Bombay, right to appeal to the Privy Council was allowed as early as 1812

under a Regulation of that year. It extended to civil cases of the value of £ 5000 or

more. However, the restriction of monetary value was withdrawn by Regulation V of

the Bombay Code of 1818. In 1827, Elphinstone Code came into existence which

contained almost similar provisions of appeal to the Privy Council as were already in

force, the most striking feature of which was absence of any pecuniary limit for

moving an appeal.

Fate of Early Appeals:

The earliest appeal to the Privy Council was, Andrew Hunt v. Raja of

Burdwan,11 from the Sadar Diwani Adalat of Calcutta, decided by the the Privy

Council in 1798, affirming the decision of the Sadar Diwarii Adalat. Until 1833, there

were fourteen appeals from Sadar Diwani Adalats to Privy Council including eleven

from Calcutta,12 one from Madras and two from Bombay. To start with, the litigants

could not make much use of the provisions of appellate jurisdiction of Privy Council

because of their ignorance of the steps to be taken to bring the appeals from hearing

before the Privy Council. The suitors as well as the lawyers in the Company’s Adalats

were not familiar with the mode, manner and procedure of conducting appeals in

England. The litigants of interior mufassils had little contact with Englishmen and

hence they were ignorant about the court procedure. A solicitor in England had to be

appointed to represent the case of the litigant in the Privy Council and the Attorney of

the Supreme Court only acted as a liaison between the appellant and the solicitor.

After filing an appeal to the Privy Council, the parties waited eagerly for the decision

to come from the King-in-Council, but it never came as certain steps had to be taken

by the parties before the case could be taken by the Privy Council in the King-in-

Council and in the absence of those steps, the appeal would either be dismissed for

non-prosecution or consigned to the record office. This caused a lot of disappointment

to the litigants and the disputed property was almost ruined. Thus the ignorance of the

 

 

litigants about the exact procedure to be following during the course of appeal to be

taken to the Privy Council caused them more harm than good.

It was in 1826 that Alexander Johnston,’3 brought it to the notice of the

Company’s Board of Directors that many appeals involving important questions of

law had been pending before the Privy Council for a number of years. These cases

had not been heard because the parties concerned had not taken necessary steps in

England to pursue these appeals. The Privy Council, therefore, impressed upon the

Board of Control of the Company to initiate steps to inform the parties in India about

the pendency of their proceedings in these appeals and appraise them of the necessary

procedure to be followed to bring their cases to a hearing, it was suggested that a

Registrar of appeals be appointed to undertake the cases of respondents where the

appellants had appointed agents but the respondents had not done so. Where neither of

the two appointed an agent, the Registrar could act for both the parties.

The Company on its part, hesitated to appoint agents on behalf of the parties

for the fear whether it would be able to recover from the parties, the cost which it

might incur in bringing the appeals to a hearing. The Company, therefore, desired that

proper regulation be promulgated laying down that in all cases in which parties

concerned failed to appear by their agents to prosecute them would be disposed of and

the Company would be reimbursed by the parties concerned the expenses incurred by

it on prosecuting the pending appeals. As a result of this an Act’14 was passed by the

Parliament in 1833 reorganising the constitution of the Privy Council which now

functioned as a permanent institution to dispose of appeals and petitions from

overseas colonies.

The Judicial Committee specially dealt with the appeals from the Indian courts

which were pending before the Privy Council. It passed the following orders to

expedite the disposal of pending appeals.

 

 

By its first order of 1833, the Company was directed to bring before the

Judicial Committee of the Privy Council, all the cases of appeals from its Sadar

Diwani Adalats. In all forty-three such appeals were pending at the time which

included eighteen cases from Bengal, ten from Madras and fifteen from Bombay

Sadar Adalats. By the second order of November 18, 1833, the Company was

required to appoint solicitors or agents to act as counsels for different parties whose

appeals were pending before the Privy Council.

By the third order, the Company was authorised to recover costs from the

appellants incurred by it in bringing appeals through agents in the Privy Council.

Since there was no uniformity regarding pecuniary limits of appeals from

different Indian Courts, the Privy Council by an order of 1838 provided that after

December 31,1838 no appeal should be allowed, by any Sadar Diwani Adalat or

Supreme Court of India, unless the petition was presented within six months from the

date of judgment, decree or order and the value of the subject- matter in dispute in

such appeal was at least Rs. 10,000/-. The order also provided for appeals by special

leave in exceptional cases.

The constitution of the Judicial Committee was modified in 1843 when the

quorum to decide appeals from Indian Courts was reduced from 4 to 3 members.

The Judicature Act, 1845:

According to the aforesaid three orders in Council the Company brought the

pending appeals for disposal. In all 67 appeals were disposed of, out of which 37 were

affirmed, 12 reversed, 1 varied, 14 compounded, 2 withdrawn and 1 was remitted.

 

 

The Company had to spend a sum of 151537 pounds on these appeals, of which only

a nominal part could be recovered from the parties. Therefore, the British Parliament

passed an Act in 1845 seeking to absolve the Company of its responsibilities of

appeals. The Act laid down that the provisions of 1833 should not be applied to any

appeal from any Sadar Diwani Adalat after January 1, 1846 and such appeals were to

be managed by the parties themselves. Thus after 1st January 1846, the management

of appeals in England was taken out of Company’s hands and was vested in the

parties themselves.

Appeals to Privy Council from the Indian High Courts:

Consequent to the passing of the Indian High Courts Act, 1861, the Supreme

Courts and the Sadar Adalats in Calcutta, Bombay and Madras were abolished and in

their place the High Courts were established in these Presidency towns. An appeal

could be made to the Privy Council in any case not being of a criminal jurisdiction

from any final judgment, decree or order of the High Court if the value of the subject-

matter was not less than rupees ten thousand or the High Court declared that the case

was fit one for such appeal to the Privy Council.”15

In criminal cases, an appeal could lie to the Privy Council from any judgment

or sentence of a High Court made in exercise of its original jurisdiction or in any case

where a point of law had been reserved for the opinion of the High Court by court

exercising original jurisdiction provided the High Court certifies that the case is fit

one for appeal to the Privy Council.’16

Special leave to Appeal:

Besides, various Charters and Regulations also reserved to the Sovereign,

namely, King-in-Council, power to grant special leave tapea1 in those cases which did

not qualify to co’ e6i’eii’as of t1Wunder stipulated conditions. It could grant special

 

 

leave to appeal even where the High Court refused to grant necessary certificate or

leave. Special leave could be granted in civil as well as criminal cases.

In civil matters, though special leave was not granted in all cases yet the

attitude of the King-in-Council (Privy Council) was more flexible17 than in criminal

matter The Privy Council could grant special leave to appeal in civil matters where a

substantial question of law was involved o the case of a. public importance or of a

substantial character.’18

In criminal cases, the approach of the Privy Council was more restrictive and

it intervend only when there had been gross miscarriage of justice and the essential

legal principles had been violated.19 The obvious reason for this restrictive approach

of the Privy Council in criminal appeals was that such appeals were time consuming

and therefore would have resulted in the postponement of sentences or execution

thereof passes on those found guilty of murder causing undue delay between

commission of crime and the punishment which would have diluted the entire

deterrent effect of punishment, leaving the convicts in suspense. Yet another reason

was large number of criminal cases in colonies.

In Ibrahim v. Rex,20 the Privy Council inter-alia observed, “leave to appeal is

not granted except where some clear departure from the requirements of justice,

exists; nor unless by a disregard of the forms of legal process, or by some violation of

the principles of natural justice or otherwise, substantial and grave injustice has been

done There must be something which, in the particular case, deprives the accused of

the substance of fair trial or the protection of law.21

Referring to its prerogative to grant special leave to appeal, the Privy Council

in two cases22 of appeal from the Supreme Court of Bombay made it clear that the

 

 

clause referred to civil cases only and appeals in criminal cases, could go to the Privy

Council only if the Supreme Court concerned gave the necessary certificate of

permission.23 It is to be noted that even in the case of Nand Kumar, the Supreme

Court of Calcutta had refused to grant leave to appeal to the Privy Council.24

In 1862, the Privy Council considered the question of special leave to appeal

to itself from the Sadar Nizamat Adalat at Calcutta in Reg v. Joykisen Mookerjee.25On

being convicted on a charge of forgery, the accused prayed for leave to appeal which

was refused by the Sadar Nizamat Adalat. The Privy Council, while admitting the

existence of prerogative of the Crown to grant special leave to appeal and admitting

that justice had not been well administered in this case, still refused special leave on

three main grounds, namely, (i) it ‘would involve investigation and examination of the

entire evidence in the case de novo; (ii) till that time there was no precedent to grant

special leave nor had any petition praying for special leave ever come from any

Dominion or colonies; (iii) the consequences of granting special leave would be

destructive of administration of criminal justice.

The Privy Council, however, hoped that justice would be done in the instant

case by exercising the Royal prerogative of granting pardon to the accused.

In Re Dillet26 case the Privy Council reiterated its earlier stand on grant of

special leave in criminal cases and observed that invariably it would desist from

reviewing or interfering with the course of criminal proceedings unless it is shown

that there has been violation of the principles of natural justice or some substantial

and grave injustice has been caused to the petitioner. Perhaps, the first case from India

in which the Privy Council intervened was in 1913 because the accused in this case

was condemned to death upon no evidence at all.27

 

 

The Privy Council in Arnold v. King Emperor,28 through Lord Shaw stated

that the Judicial Committee of Privy Council is not a court of criminal Appeal. It shall

not interfere with the course of criminal law unless there has been gross violation of

the natural principles of justice so demonstratively manifest as to convince their

Lordships, that the result arrived at was opposite to the result which their lordships

would themselves have reached.

Appeal from the Federal Court:

A Federal Court was established in India by the Government of India Act,

1935. An appeal from the decision of the Federal Court could be allowed to the Privy

Council in the exercise of its original jurisdiction without leave, and in any other case,

by leave of the Federal Court, or His Majesty’s Council, namely the Privy Council.29

It must be stated that even after the establishment of the Federal Court, the old system

of appeal from High Court to Privy Council was continued and uninterrupted.

Abolition of the Jurisdiction of the Privy Council:

Consequent to the Indian Independence in 1947, there was need to extend the

jurisdiction of the Federal Court by restricting Privy Councils jurisdiction over it.

Therefore an Act called the Federal Court (Enlargement of Jurisdiction) Act, 1948

was passed which provided that an appeal would be allowed to the Federal Court from

any judgment of the High Court without leave to appeal of the Federal Court if an

appeal could have been brought to His Majesty’s Council without any special leave

under the provisions of the Code of Civil Procedure or of any other law in force, and

with the special leave of the Federal Court in other cases.

The jurisdiction of the Privy Counci.1 to hear appeals from India was

completely abolished in 1949 by the Abolition of the Privy Council Jurisdiction Act,

1949 which came into force on October 10, 1949 The pending appeals were

 

 

transferred to the Federal Court except those which the Privy Council could dispose

of before the inauguration of the Indian Constitution With the coming into force of the

Constitution of India on January 26, 1950, the Federal Court was replaced by the

Supreme Court of India. It was the highest court for the country and conferred wide

jurisdiction.

The last Indian case decided by the Privy Council was that of N.S.

Krishnaswami_Ayyangar v.Perumal Goundan,30 from Madras which was decided on

December15, 1949. Thus came to an end Privy Council’s over two century old

relationship with India.

Role of Privy Council in the Development of law in India:

The Privy Council played a very significant role in the development of law in

India. As rightly commented, “it served as a bridge between the Indian and the

English legal systems over which legal ideas travelled from England to India.” It

helped in the development of the fine principles of common law in India which

provided basis for codification of India laws. The Privy Council also acted as a

connecting like between the various Sadar Adalats, Supreme Courts High Court in

Indian which followed and interpreted law differently from one another and thus

served as a great unifying force in the judicial administration in India.31 The decisions

of the Privy Council have enriched the Indian legal literature in many ways. It always

tried to uphold the principles of natural justice and fair play in the realm of criminal

jurisprudence. Its contribution to civil law, property law, personal laws and

commercial law is also no less important. It tried to rationalise these laws by

incorporating in them the fine principles of equity, justice and good conscience.

Speaking about the contribution of Privy Council to the Indian legal system,

Shri K.M. Munshi at the eve of the abolition of the Privy Council observed “The

 

 

British Parliament and the Privy Council are two great institutions which the Anglo-

Saxon race have given to mankind. The Privy Council, during the last few centuries

has not only laid down law, but coordinated the concept of rights and obligations

throughout all the Dominions and Colonies in the British Commonwealth. It has been

a great unifying force and for us Indians, it became the instrument and embodiment of

the rule of law, a concept on which alone we have based our democratic institutions

which we have set up in our Constitution.”32

The Privy Council assumed the role of the sole interpreter of the Federal

Constitution under the Government of India Act, 1935 and in this capacity it has

played a commendable role in moulding the Constitution, remote from the local

political background.

It must be stated that even after the establishment of the Supreme Court of

India on January 26, 1950, the decisions of the Privy Council are held in great esteem

as is evident from the fact they are still binding on all the High Courts of India unless

overruled by the Supreme Court of India.

Despite the contribution of the Privy Council to the development of law and

legal institutions in India, its judgments have sometimes been criticised for not being

in consonance with the accepted Indian norms. This was particularly true with its

decisions relation to personal laws of Hindus and Mohammedans. Since the members

of the Privy Council were all English Judges, they had little knowledge about the

manners, customs and traditions of the Indian natives. Moreover, the solicitors in

England were engaged by the Attorneys of the Indian Supreme Courts. These

solicitors, again being ignorant about the Indian ways of life, lacked adequate

knowledge about the habits and practices of the natives, therefore, they were not in a

position to plead the cause of their clients successfully.

 

 

Another shortcoming of the functioning of the Privy Council from England

was the huge expenditure which the parties had to incur in order to move in appeal to

the Privy Council. As a result of this, only rich and influential parties could resort to

this course of justice and the poor were obviously deprived of this opportunity due to

financial constraints.

That apart, the Privy Council was the highest court in the Indian judicial

system. It being located in England, gave an impression of our sole dependence on the

Britishers in matters of law and justice. But there seems to be little force in this

argument keeping in view the high traditions which the Privy Council has evolved

through its attitude of judicial detachment and unflinching integrity that subordinated

everything to the rule of law and its conscientious regard for the rights and justice not

only between subject and subject but also between State and subjects. The supremacy

of Privy Council lay in its ‘fearless justice’ .33

 

 

CHAPTER XV

MODERN JUDICIAL SYSTEM

Having discussed the origin and development of various types of courts for the

administration of justice in British India, it would be in the fitness of things to give a

brief account of the differ9nt courts functioning under the modern judicial system in

this country. The hierarchy of courts functioning in modern India is as follows:-

The Supreme Court of India:

The Supreme Court has been declared as the highest Court of the land by the

Constitution of India. It is at once the interpreter and guardian of the Constitution. It is

the highest appellate court of the country. It has original, appellate and advisory

jurisdiction as discussed in the earlier chapter.1 It is empowered to frame rules with

 

 

the approval of the President, relating to the practice and procedure of the Court. A

Judge of the Supreme Court may also to give a dissenting judgment.

The Supreme Court being a court of record, can punish for its contempt. Such

power is necessary for maintaining the sanctity of the Court and its authority It is

independent of the control of the executive and legislature i.e., Parliament as is

evident from the provisions relating to the appointment and removal of the judges of

the Supreme Court.

The High Courts:

Immediately below the Supreme Court, there are High Courts in different

States, which constitute the highest Court of Appeal and revision in the State, both for

civil and criminal matters. The High Courts are also the courts of record in the State

and have to perform the general functions of superintendence and control over the

subordinate courts within its territorial jurisdiction. The High Court exercises original

jurisdiction in matters relating to issue of writs for violation of fundamental rights of

persons and for any other purpose.2

Subordinate Courts:

Below the High Court of the State, there exists a network of subordinate

Courts comprising criminal and civil courts. Though there is no uniformity as regards

jurisdictional limits of different categories of subordinate courts in different States,

nevertheless the organisation of these courts is more or less similar in most of the

States. The various categories of subordinate civil and criminal courts are discussed

below.

1. Civil Court:

 

 

In general, the hierarchy of Courts which exist in each State for the

administration of civil justice consists of :—

1. District Court.— There is a Court of District Judge in each district which

is the Principal Civil Court of original jurisdiction. It also exercises appellate

jurisdiction for the orders and decree of the subordinate courts in cases upto Rs.

5,000/- in value. The District Judge has the power to control and supervise the whole

subordinate judicial Courts in the District. He is assisted in his work by the Additional

District Judges wherever necessary.

2. Lower Courts.—Below the District Court, there are a number of courts of

judges having different designations in different States. In some States they are

designated as Munsifs while in others they are called as Civil Judge class I and class

II. Their pecuniary jurisdiction varies from State to State3 between Rs. 1,000/- and

Rs. 5,000/- as contained in the Civil Courts Acts of the respective State.

3. Other Small Causes Courts.— Besides the lower subordinate Courts,

there are a few more Courts of minor jurisdiction which are called the Courts of Small

Causes. They are meant to provide cheap and speedy justice in petty civil cases. The

Courts of Small Causes were first established iri.1860 which were amended in 1865

and again in 1867. The same person may be appointed as Judge of more than one such

courts. Each Court of Small Causes has a Registrar who is a ministerial officer of the

Court. He may, however, be empowered to try civil cases below Rs. 20/- in value. The

Judge of the Small Causes Court can decide civil cases up to the value of Rs. 1,000/-.

The jurisdiction of this court is exclusive and its decision is always final. However,

the High Court has the power to revise the decision of the Small Cause Courts. The

Small Causes Courts are under the control of the District Court and under the

superintendence of the High Court of the State.

 

 

In addition to the courts mentioned above, certain States also have Courts of

Mamlatdars and Village Munsiffs as in Maharashtra or Village Courts in Madras or

Honarary Munsiffs and Magistrates in the State of Uttar Pradesh.4

4. The Village Panchayats.—After the Indian Independence most of the

States have established Village Panchayats which are commonly known as ‘Gram

Panchayats’ in compliance with the directive principles contained in Article 40 of the

Constitution of India. Each Gram Panchayat consists of an elected head called the

Sarpanch and a Up-sarpanch to assist the Sarpanch. The members of the Panchayat

are called the ‘Panchas’ who are elected by the village people. The Gram Panchayat

conducts its proceedings in public and exercises petty civil as well as criminal

jurisdiction but it has no power to execute its decisions. As regards civil cases, the

Gram Panchayat decides petty cases involving money, goods, recovery of movable

property or compensation claims to the extent of Rs. 200/- in value. However, under

special powers, this pecuniary limit can be extended upto Rs. 500/-. The plaintiff has

to file a written plaint to institute a suit in a Panchayat and the decrees passed by it are

executed by the concerned civil court. The District Judge exercises supervisory

control over the working of the Panchayats. He can suspend the Panchayat for

incompetency or abuse of powers etc. Likewise, the members of the Panchayat can

also be removed for misconduct incompetence or insolvency.

5. The Civil Courts of Presidency Towns.— The functioning of the Courts

in Presidency towns of Calcutta, Madras and Bombay is somewhat different. The

various Courts that exist in Presidency towns include the following

(i) The Presidency High Courts.—There is a Presidency High Court in each

of the Presidency towns of Calcutta, Madras and Bombay which exercises original

 

 

jurisdiction to decide civil cases of any value within the local limits of the Presidency

town. Such jurisdiction extends to all causes of civil nature except those which are

decided by the Small Causes Courts and other City Civil Courts.

(ii) The City Civil Courts of Madras, Bombay & Calcutta.—A City Civil

Court was established in each of the Presidency towns as a measure of relief to the

Presidency High Courts and to render administration of justice speedy and less

expensive.

The Madras City Civil Court was first to be established in 1892 under the

Madras City Civil Court Act, 1892. This Court had the jurisdiction to decide civil

cases upto the value of Rs. 2500/-. This pecuniary limit was subsequently raised to

Rs. 10,000/- in 1951 and finally, to Rs. 50,000/- by an Act of 1955. It is significant to

note that the City Civil Court of Madras enjoys concurrent jurisdiction with the High

Court whose ordinary original jurisdiction is not affected by the introduction of the

City Civil Court. An appeal from the City Civil Court however, lies to the Presidency

High Court of Madras.

The Bombay City Civil Court was established in 1948 under an Act of that

year. This Court has jurisdiction to decide cases upto Rs. 10,000/- within the local

limits of the city of Bombay. This pecuniary limit was subsequently raised to Rs.

25,000/- in 1950 and at present it is Rs. 50,000/-. An appeal from the decision of this

Court lies to the Presidency High Court of Bombay. The jurisdiction of the Presidency

High Court is barred to the extent of the jurisdiction of the City Court. However, the

High Court may under special circumstances, get transferred to itself, any suit or

proceeding from the City Civil Court of Bombay.

 

 

A City Civil Court was also established at Calcutta in 1957 with tower to

decide cases upto Rs. 10,000/- which was subsequently raised to R 50,000/ Like other

City Civil Courts, an appeal from this Court lay to the Presidency High Court of

Calcutta.

(iii) Presidency Courts of Small Causes.— In each of the three Presidencies,

there is a Court of Small Causes emerging from the old Courts of Requests which

existed under the charter of 1753. The powers, constitution and jurisdiction of the

Courts of Requests were altered from time to time in order to meet the exigencies of

time. Finally, these Courts were abolished in 1850 and new Courts of Small Causes

were established in three Presidency towns which could decide civil cases upto Rs.

500/- in value. The pecuniary jurisdiction was subsequently raised to Rs. 1000/- in

1864 and if the parties mutually consented, the suits of even higher value could also

be decided by this Court.

Each of the Presidency Small Cause Court was to have a Chief Judge and as

many other Judges as the State Government deemed necessary. These Courts were

subordinate to respective High Court of the Presidency. There was to be a Registrar of

the Small Cause Court who could be authorised by the High Court to dispose of

undefended suits and interlocutory applications. In case of any doubt, the Judges of

the Small Causes Court were to reserve any question of law or equity or admissibility

of evidence etc. for the opinion of the High Court. The High Court had a general

power of supervision and control over the working of the Small Causes Courts. The

Small Cause Courts are not

empowered to decide suits for the recovery of immovable property, enforcement of

trust, restitution of conjugal rights or grant of injunctions etc. The decree and order of

the Small Cause Court in a suit is final and conclusive, unless otherwise provided.

II. Courts for Criminal Justice:

 

 

The subordinate courts administering criminal justice function uniformly

throughout the country under the Code of Criminal Procedure, 1973. These consist of

Courts of Magistrates of different categories and the Sessions Courts.

The Code of Criminal Procedure, 1973, provides that there shall be, in every

State, the following classes of criminals Courts,5 namely :—

(i) Courts of Session;

(ii) Judicial Magistrates of the first class, and in any metropolitan area,6

Metropolitan Magistrates;

(iii) Judicial Magistrates of the second class; and

(iv) Executive Magistrates.

(i) The Court of Session.— Each district of the State has a Court of Session

which is presided over by a District & Sessions Judge. Additional Session

Judges may also be appointed for assisting the Session Judge in his work. They are

equal in rank and not subordinate to the Sessions Judge. The criminal cases of a grave

nature are tried in the Sessions Court and the Session Judge can pass any sentence.

However, the sentence of death passed by him, requires confirmation of the High

Court concerned for final execution.7 The Sessions Court also hears appeals from the

Courts of District Magistrates and those of special magistrates.

(ii) Judicial Magistrates.—The Code of Criminal Procedure, 1973 provides

to the appointment of a Chief Judicial Magistrate in every district. He is assigned the

powers of the Magistrate of the first class. The appointment of the Chief Judicial

Magistrate is made by the High Court of the State concerned. Every Chief Judicial

Magistrate shall be subordinate to the Session Judge. He can pass any sentence

 

 

authorised by law except a sentence of death or of imprisonment for life or

imprisonment for a term not exceeding seven years.

Besides the Chief Judicial Magistrate, there are also the Courts of Magistrates

which are further classified as Judicial Magistrates and the Executive Magistrates.

There are two grades of Judicial Magistrates, namely, the Judicial Magistrate of the

first class and the Judicial Magistrate of the second class.

The Court of Magistrate of the first class may pass a sentence of imprisonment

not exceeding three years, or fine not exceeding Rs. 5000/- or both.

The Court of Magistrate of the second class may pass a sentence of

imprisonment for a term not exceeding one year, or fine not exceeding Rs. 1000/- or

both.

In Metropolitan areas, the Court of a Chief Metropolitan Magistrate shall have

the powers of a Chief Judicial Magistrate and the Metropolitan Magistrate shall have

the powers of the Magistrate of the first class. The Chief Metropolitan Magistrate

shall be subordinate to the Sessions Judge.

(iii) Executive Magistrates.— In every district and in every Metropolitan

area, the State Government may appoint as many persons as it thinks fit to be

Executive Magistrates and shall appoint one of them to be District Magistrate.13 The

State Government may appoint any Executive Magistrate to be an Additional District

Magistrate who shall also have the same powers as those of a District Magistrate. The

State Government may place an Executive Magistrate in charge of a Sub-Division and

the Magistrate so placed in charge of a Sub-Division shall be called a Sub-Divisional

 

 

Magistrate. The State Government may also appoint Special Executive Magistrate for

particular areas or for performing particular functions.

All Executive Magistrates, other than the Additional District Magistrate, shall be

subordinate to the District Magistrate and every Sub-Divisional Magistrate shall be

subject to general control of the District Magistrate.

The state Government may also appoint Special Executive Magistrate for

particular areas or for performing particular functions.

All Executive Magistrates, other than the Additional District Magistrate, shall

be subordination to the District Magistrate and every Sub-Divisional Magistrate shall

be subject to general control of the District Magistrate.

The jurisdiction of the Executive Magistrate shall extend to local limits of the

areas defined by the District Magistrate and they shall exercise all or any of the

powers with which they may be invested by the Code of Criminal Procedure.

III. Revenue Courts:

The system of courts adopted by different States for adjudication of revenue

cases is more or less similar with minor deviations in the designations of the revenue

officials. The different categories of Revenue Courts functioning in the States are as

follows :—

1. The Board of Revenue.—The Board of Revenue is the highest revenue

Court in a State. It decides all judicial matters and cases relating to settlement in

whole of the State.

 

 

2. Commissioners and Additional Commissioners. — The whole of the

State is divided into several Divisions each having a Commissioner who exercises

powers and performs duties assigned to him by the Code of Land Revenue of the

State. An Additional Commissioner may also be appointed by the State Government

in a Division. He assists the Commissioner in his work. The Commissioners and

Additional Commissioners function under the Board of Revenue.

3. Collectors and Additional Collectors. — Each Division of the State is

further divided into several districts, each having a Collector who is in- charge of the

district. Additional Collectors are also appointed by the State Government to assist the

Collector of the District. Their powers and functions are defined by the Land Revenue

Act or the Code.

4. Assistant Collectors. — There are Assistant Collectors of first and Secçnd

class in each District. In some States they are designated as Deputy Collectors.

Assistant Collector of the first class may be placed in charge of a Sub-Division when

they are called as Sub-Divisional Officers. They are subject to the control and

supervision of the Collector of the District.

5. Tehsildars and Naib Tehsildars. — These are revenue officers in the Tehsil

which is a unit of collection of revenue. They deal with revenue matters according to

the provisions of the Land Revenue Act or Code. In some States they are designated

as Talukedars or Mamlatdars.

Besides these revenue officers, there are a number of other petty revenue

officials such as Superintendent Land Records, Assistant Superintendent of Land

Records, Kanungos, Patwaris as the State Government may prescribe from time to

 

 

time. In villages; there are Kotwars or Lekhpals who prepare the land records in their

areas.

Appeals.— An appeal from the order of the Assistant Collector class II or

Tehsildar shall lie to the Collector and from the decision of the Collector or Assistant

Collector Class I or Sub-Divisional officer to the Commissioner. The appeal from the

orders of the Commissioner or Additional Commissioner shall lie to the Board of

Revenue. An appeal may be admitted, reversed or dismissed by these appellate

revenue authorities.

In order to maintain efficiency in the administration of law and justice in the

country, it is necessary for the State to exercise effective control on the subordinate

Courts. This has been ensured by the constitutional provision contained in Article 227

of the Constitution which vests the power of superintendence over the subordinate

judiciary in the High Courts. They have been empowered to make rules for

controlling the organisation of the subordinate Courts. The power of postings and

promotion of and the grant of leave to persons in the State Judicial Service other than

the District Judges, are vested in the High Courts so that they can exercise effective

control on these subordinate judicial officers.

An Appraisal of the Modern Judicial System:

A sound judicial system of administration of justice is perhaps the most

valuable legacy which the Britishers have left behind in India. The concepts of Rule

of law, independence of the judiciary and justice according to law have been firmly

established in the judicial system of India. That apart, constant efforts are being made

to improve the administration of justice through changes in the working of the

subordinate courts, particularly to eleminate delay and minimise legal formalism. The

gravest defect that exists in the judicial system of India is that it suffers from undue

 

 

delay in disposal of cases which often results into miscarriage of justice because

“Justice delayed is justice denied. Moreover, the relief granted to the aggrieved parties

loses its significance by the lapse of time. The delay in trial and disposal of cases can

be attributed to the lethargy of the Bar and the Bench. The members of the Bar

particularly adopt dilatory tactics to exploit their clients or monetary gains.

The litigation in the Indian courts is a costly affair. Commenting on the heavy

expenses that are incurred in seeking remedies from the Court, the Law Commission,

in its 14th Report of 1958 observed, “India is the only country under a modern system

of Government which deters a person who is deprived of his property of legal right

from seeking redress by imposing a tax on the remedy he seeks.” Thus the heavy

court-fee which the suitor is required to pay to get his claim or right redressed deters

him from approaching the law courts. Therefore he prefers to bear the loss, damages

and suffering caused to him by the wrongdoer rather than entering into a costly and

lengthy litigation.

The highly complex and technical nature of the court procedure also creates

practical problems for the litigants. The suitors being ignorant about the formalities of

the law and courts, are often exploited by the ministerial staff and the legal

practitioners. These formalities at every stages of the trial are so cumbersome and

time consuming that the suitors at times begin to lose faith in the institution of justice

itself.

The combination of judicial and executive powers in the same official is yet

another set-back of the present day criminal justice system.’7 In some States the

magistrates are entrusted with the functions of police as well as Judge. They have to

try, prosecute and punish the offenders. The Collectors of the District are acting as

District Magistrates also in many States. This is likely to lead to abuse of power by

the trial Magistrate which may result into miscarriage of justice. However, more

 

 

recently this aspect has received serious attention of the State Governments and

efforts have been made to separate the judicial functions of the magistrates from their

executive functions.

The heavy arrears of cases pending in different courts has rendered the

litigation a lengthy and cumbersome process. It results into inordinate delay in

disposal of cases causing untold miseries to poor and helpless litigants. In order to

reduce the arrears in law Courts it is suggested that pecuniary jurisdiction of the

Judges in subordinate courts should be enhanced. Revitalisation of the institution of

‘Nyaya Panchayats’ at village level may perhaps help to reduce the burden of lower

courts to a considerable extent. These Panchayats may be empowered to dispose of

petty civil and criminal cases in the villages. The Petty cases of village people may

thus be disposed of quickly without much expenditure.

The Law Commission, through its Reports from time to time has suggested

some concrete measures to remove the shortfalls of the existing judicial system in

India. It has recommended an increase in the strength of Judges in the courts for

speedy disposal of judicial work. There is need to reorganise the State. Judicial

Services. In order to ensure the entry of really talented and worthy persons as Judges

it is suggested that there should be an All India Judicial Service on the pattern of

Indian Civil Services and the recruitment of Judges should be through the Union

Public Service Commission as is the case of other Administrative Services or the

Engineering, Forest and Medical Services etc. The recruitment of Judges by the States

leaves much room for manipulation and favouratism. The promotions in the judicial

services should be on the basis of ability and merit and not merely on seniority. The

setting up of a National Judicial Academy at Bhopal in 2003 for providing initial

training to new recruits as Judge/Magistrates and refresher courses for the serving

judicial officers is indeed a welcome step towards bringing about a qualitative

improvement in the Indian Judicial Services.

 

 

In order to provide adequate relief to poor litigants, free legal aid services, are

organised by the States so that indigent persons are not denied justice because of their

inability to pay the court-fee. The States are initiating schemes and measures to

provide free legal aid services at district and other levels but unfortunately the quality

of legal aid provided by these agencies is far from satisfactory. The remuneration

payable to the legal aid advocates is so meagre that only briefless and inexperienced

practitioners are inclined to accept this work and really competent and experienced

lawyers take no interest in it.

It must be said that the institution of Lok Adalats under the Legal Services

Authorities Act, 1987 has proved to be a successful measure in taking justice to the

door steps of the poor. These Lok Adalats are held at district, tehsil and even village

level and dispose of cases then and there by mutual settlement or compromise by the

parties. This has helped in easing the work of the lower courts at the same time

providing cheap and speedy justice to common man. The statutory recognition of Lok

Adalats19 by the Legal Services Authorities (Amendment) Act 2002, has provided

strength and force to this public court.

The main object of the programme for legal aid and Lok Adalats is to avoid

litigation, as far as possible, and to find a compromise by creating mutual

understanding and trust between the disputant parties. This innovative approach is one

of the effective ways to reducing number of unwarranted litigation in courts.

There have been several proposals before the Government to cut down judicial

delays and reduce the number of pending cases. The launching of about 450 fast track

courts on April 1, 2001 at the district level in various States has been one of the

effective measures for curtailing judicial delay. Initially five such courts were to be

set up in each district. The scheme envisages the appointment, for a tenure of two

years, of adhoc Judges from amongst the retired sessions and additional sessions

 

 

Judges, members of the Bar and judicial officers who would be promoted on adhoc

basis. The selection of Judges is made by the High Courts. The scheme will go a long

way in expediting dispensation of justice and clearing backlog of cases. There are

about 25 fast track Courts functioning in the Capital (Delhi) at present.

The Supreme Court in Brij Mohan Lal v. Union of India, (decided on May 6,

2002) directed that all the vacant posts in Fast Track Courts be filled within three

months of the judgment. These Courts were to be assigned the exclusive work of

disposing of the cases of undertrials who were languishing in jails for petty offences

and put behind the bars for periods which are longer than the punishment warranted

by the offence. This will mean huge saving in jail expenditure.

The adversarial nature of litigation which was monetary-oriented provided

relief only to rich and wealthy litigants and the poor and persons of meagre means

found it difficult to defend themselves against their resourceful opponents. This

caused great injustice to poor and ignorant masses. Therefore, in order to enable the

common man to have access to doors of justice, public interest litigation has been

encouraged by the Supreme Court and the High Courts. The epistolary jurisdiction of

these courts has given way to the adversarial mode of litigation by liberalising the

doctrine of locus standi whereby a writ can be filed under Article 32 in the Supreme

Court or Article 226 in the High Court in the public interest against the State or a

public undertaking for enforcement of any of the fundamental or legal rights which

have adversely affected a sizable groups of the society. This is indeed a commendable

development in the history of judicial administration in India.

The establishment of Family Courts which has already received statutory

recognition by the Family Courts Act, 1984 is yet another progressive step in the

direction of mitigating the hardships of the litigants. Since these Courts shall have

jurisdiction over divorce, legitimation, maintenance, property partition, custody of

 

 

child etc., it would lessen the burden of civil courts which are presently dealing with

these cases. It is high time when all the States should initiate steps to establish family

Courts so that it can be possible to bring about reconciliation among parties in

matrimonial disputes outside the courts.

Consumer Forums at the National, State and District level are also functioning

for the redressal of consumer’s grievance and providing them relief in appropriate

cases.

In the ultimate analysis, it may be stated that though the modern Indian

judicial system suffers from certain glaring defects, the legislators arid law reformers

are constantly striving to remove these shortcomings to make justice system effective

and welfare oriented. Perhaps, what is wanting in the present context is the real zeal

and urge among the legal fraternity to look to the miserable plight of the suffering

litigants sheding aside their own selfish interests and routinism. Therefore the need of

the hour is, to bring about a change in the attitude of the judicial personnel who are

entrusted with the task of administration of justice.

The setting up of the Human Rights Commission in November 1993, was

indeed a welcome measure in the direction of strengthening the cause of justice. The

Commission entertains complaints involving violation of human rights such as

custodial deaths, illegal arrests, atrocities against women, sex violations, violations by

Armed Forces etc. Many states have also established their Human Rights

Commission. Since a dignified survival of man is at the core of human rights

jurisprudence, its focus is on discarding anarchic, violence as well the practices based

on oppression, torture and indignities so that better standards and higher norms life

can be achieved. It may however, be pointed out that the National Human Rights

Commission (NHRC) and the State HRC have no power to punish the violators of

human rights, nor can they grant any compensation or even immediate interim relief

to the victims or the members of their families. The Commission can only make

 

 

recommendation to the concerned governments for prosecution and grant of relief.

Therefore, in order to make NHRC more effective and meaningful, it is necessary that

it should have its own independent investigating machinery with punitive powers.

Also there is need for setting up human rights courts for adjudication of human rights

violation cases.

In order to ensure gender justice and provide assistance to the judicial

administration in protecting the rights of women, a statutory body known as National

Commission for Women was set up in January 1992 under an Act called the National

Commission for Women Act, 1990. The main functions of the National Commission

for Women are as follows:

(1) to review the constitutional and legal safeguards for women and recommend

remedial legislation for ensuring the enforcement of the rights of women;

(2) to facilitate remedial measures for resolving the problems of women and

advice the Government on all policy matters effecting women;

(3) to review the existing provisions of the Constitution affecting women and

ensure effective implementation of the safeguards for women;

(4) to look into complaints of aggrieved or victimised women and initiate suo

motu action in appropriate cases;

(5) to undertake professional and education research for ensuring representation

of women in all spheres of life and national activities;

(6) to look into the cases of violation of law against women and make sure that

women’s rights are well guarded; and

(7) to strive for socio-economic development of women and work for women’s

empowerment.

 

 

The Women Commission subm1ts its reports annually to the Central

Government indication the cases dealt with and action taken by the Commission.

The States have also set up Women‘s Commission at state level to look into

the problems and complaints of aggrieved women and solve their socio-legal

problems.

CHAPTER XX

CODIFICATION OF INDIAN LAWS AND THE LAW

COMMISSION

 

 

The Charter Act of 1833 marked a new era in the development of laws in

India. It made a beginning of consolidation and codification of Indian laws. The

British Company had acquired many territories by this time and it was difficult for it

to exercise effective control over them with the existing constitutional pattern. A

strong Central Government was, therefore, desired for the proper administration of

such a vast empire.

Establishment of an All India Legislature:

The British rulers experienced that the state of law in presidency towns and

mofussil areas was also most uncertain and haphazard and lacked uniformity. There

were as many as five different authorities which framed laws and regulations for India

at that time. They were :—

(i) The Charters issued by the British Crown;

(ii) The Acts passed by the British Parliament;

(iii) The Regulations (orders) of the Governor-General-in-Council.

(iv) The rulings of the Supreme Court; and

(v) The Regulations passed by the Presidencies.

On account of the multiplicity of the sources of law, the law made by one

authority often differed from those made by the other authority, with the result that

there was a lot of confusion about certainty of laws. With a view to removing this

anomaly, it was proposed to establish an All India Legislature having authority to

enact laws for the whole of British India. This was done by the Charter Act of 1833.

The All India Legislature so established consisted of the Governor General-in-Council

having a fourth member called the Law Member. He was to assist the Council in

making laws for the entire British India. The establishment of an All India Legislature

 

 

was a great step towards the process of centralisation and improvement in the quality

of laws enacted for India.

Another important issue which needed immediate attention was the

consolidation and codification of Indian laws. The existing criminal law was far from

satisfactory due to its inherent defects. The personal laws of the natives dealt with

only certain specific topics such as succession, inheritance, marriage, usages and

religious institutions. There were many civil wrongs and crimes which were left

outside the scope of law which posed problems before the English Judges. Therefore,

legal experts like T.B. Macaulay drew the attention of British Parliament towards the

necessity of codification of Indian laws in order to remove the imperfections thereof.

He attributed three major vices in the then existing Indian laws. The first was the

nature of laws and regulations; the second was the ill-defined authority and power

from which various laws and regulations emanated; and the third was the anomalous

and conflicting judicature by which the laws were administered.’ Macaulay further

pointed out that the decision of different courts of India rendered the law not only

bulky but uncertain and contradictory. There was no link between the Crowns court

and the Company’s courts and each of them interpreted laws in their own way. At

times, conflicting decisions were given by these courts on similar issues. This

obviously hampered the cause of justice.

The Charter Act of 1833:

As stated earlier, an All India Legislature was established in India by the

Charter Act of 1833 which forms a watershed in the legal history of India.2 Lord

Macaulay was appointed as the Law Member of the Governor-General-in- Council

under this Act. The laws passed by the All India Legislature were called as ‘Acts’ and

not Regulations. The Council was authorised to make laws for whole of the British

territory in India and it could repeal, amend or alter any law or regulation in force in

any part of India. The laws made by the Legislature were required to be placed before

 

 

the British Parliament through the Board of Control for approval. With the creation of

this new Council, the Governments of Bombay and Madras were deprived of their

law-making power.

First Law Commission:

Lord Macaulay in 1833, had emphasised the urgency of codification of Indian

laws by arranging them in a systematically written code. Consequently, section 53 of

the Charter Act of 1833 made provision for the appointment of a Law Commission in

India for the purpose of codification and consolidation of the Indian laws. The

principle which was to be followed in the process of codification and consolidation of

the Indian laws was stated by Macaulay in the following words:—

We do not mean that all the people of India should live under the same law,

far from it we know how desirable that object is but we also know that it is

unattainable. Our principle is simply this—uniformity where you can have it,

diversity where you must have it, but in all cases certainty.”

The First Law Commission was appointed in 1834 under the Chairmanship of

Lord Macaulay. It consisted of four members including the chairman. The other three

members were J.M. Macleod, G.W. Anderson and C.H. Cameron who represented the

Presidencies of Calcutta, Madras and Bombay respectively. In 1837, F. Millet was

also appointed as the member of the Law Commission, thus its membership including

the Chairman rose to five, which was the maximum prescribed by the Charter Act of

1833. The Law Commission was to function under the direction and control of the

Governor General-in-Council which was authorised to determine from time to time

the subject upon which the Commission was to make enquiries and submit its reports.

The Commission was directed to prepare a draft of Penal Code and also of Civil and

Criminal Procedure Codes. The Law Commission was also to suggest improvements

 

 

over the existing legal system in their reports keeping in view the religious sentiments

and customs of the different communities residing in India.

Contribution of the First Law Commission:

As directed by the Government of India, the Law Commission first started

with the codification of criminal law. The reason for top priority to draft Penal Code

was that the existing criminal law was full of uncertainties and confusion throughout

the country. In the Presidencies, the English law of crimes was applied while the

Provinces of Bengal and Madras followed the Mohammedan law of crimes. The

Province of Bombay followed the penal law under the Elphinstone Code of 1827.

Besides, Regulations were also frequently issued by the Government to regulate

administration of criminal justice. The draft of Penal Code was finally submitted by

the Law Commission to the Government in 1837. Since the Draft was mainly

prepared by Lord Macaulay, it was also called the ‘Macaulay Code’. However, the

daft could not be enacted into law until 1860.

In 1837 Lord Macaulay went back to England and Andrew Amos was appointed as

the Chairman of the Law Commission in his place. Later on, C.H. Cameron was

appointed as Chairman of the Commission in 1840.

Draft Penal Code:

Since the Draft Penal Code which was submitted by the Law Commission to

the Government on May 2, 1937, could not be immediately enacted into a law, the

Council instructed the Law Commission to prepare a scheme of pleading and

procedure with forms of indictment appended to the provisions of the draft Penal

Code. Two members of the Commission, namely, Cameron and Elliott prepared the

scheme with several forms and submitted it with their report to the Government on

February 1, 1848.

 

 

In 1842, the Law Commission also prepared a draft Code of Law of Limitation

in British India. However, after the return of Lord Macaulay to England the activities

of the First Law Commission declined considerably. Commenting on the contribution

of the First Law Commission of India to the codification of Indian laws, Keith4

opines, “no important positive enactments had resulted, and on the score of expense it

had been reduced to a skeleton organisation.”

Lex Loci Report:

The Charter Act of 1833, allowed unrestricted entry to Europeans in India,

consequently there was unprecedented inflow of foreigners and they settled in

different parts of the country. Subsequently, by 1837, they were also authorised to

hold land. But the status of Europeans including Christians, Anglo Indians and

Parsees residing in mofussil areas and the application of law to them remained

uncertain for all these years. In presidency towns, these aliens were judged by the

English law but there was obscurity of law applicable to non- Hindus and non-

muslims in the mofussil. In other words, there was no lex locj i.e. law of the land, for

them. Therefore, the attention of the First Law Commission was drawn to this lacunae

by the Government in 1837 and it was directed to make enquiries on this subject and

submit its report. The Law Commission submitted its report known as ‘Lex loci

report’ to the Government on October 31, 1840 suggesting that substantive law of

England should be declared as lex loci (Law of the land) applicable to all excepting

Hindus and Muslims inhabiting in the mofussil areas. The Law Commission

attempted to justify this recommendation on the ground that English law was

applicable to all persons other than the Hindus and muslims, in the presidency towns,

and therefore, the same law should be applicable to them in mofussil areas also

because as for as possible the law of the land should be same throughout the te’ritory

of the Comoany’s rule.5 The Law Commission suggested that an Act should be

passed incorporating the recommendation of the lex loci report subject to following

safeguards and restrictions :—

 

 

(i) Only that much of the English substantive law was to he declared lex

loci which suited the Indian conditions. The procedural law of England

was not to be declared lex loci.

(ii) No Act of the British Parliament passed after 1726 was to be extended

to mofussil areas unless there was an express provision in the Act for

extending it to India.

(iii) The English law relating to marriage, divorce and adoption was to be

applied only to persons professing christianity and non-christians were

to be governed by the rules of the sect to which the parties belonged.

The personal laws of Hindus and Mohammedans were not affected in

any way, by the introduction of lex loci law.

(iv) The mofussil courts were to follow the rules of equity law in

preference to English law, whenever there was a conflict between the

two.

(v) The appeals from mofussil courts in matters decided by them under the

Lex Loci Act, were to be decided by the Supreme Court.

(vi) The English law relating to conveyancing, land tenures and inheritance

of land were not to apply as lex loci in India. In matters of inheritance of immovable

property, the law of the place where the property was situate was to be followed while

in case of movables, the law of the domicile of the parties was the rule.

The lex loci Report submitted by Andrew Amos, the Chairman of the First

Law Commission to the Government was published in 1845. It was considered as a

unique contribution made by the First Law Commission, since it brought to an end the

diversities in the laws applicable to non-Hindus and non-muslims, prevailing in

mofussil areas. But the Government did not want to implement the Report in haste

and therefore, as a measure of caution, circulated it to all the local Governments,

 

 

Sadar Courts and Presidencies for their opinion. The lex loci proposals met severe

criticism from different quarters.

Criticism of Lex Loci Report:

The lex loci Report was criticised for its poor draftsmanship6 as also for want

of precision as to the extent to which the law of England was to be introduced. Allen

Gledhill observed that the Report ‘was based on expediency rather than a desire to

impose British culture on India.”7 According to J. Davidson, the Commissioner of

Agra Division, “lex loci was nothing but a dead letter’. Sir Henry Hardinge

commented that even if lex loci report was accompanied by a digest of English law

suited to Indian conditions, it might increase complications, technicality and

uncertainty in the mofussil courts.

The general criticism against lex loci proposals was that through this report,

the British Government made an attempt to introduce the general law of England as a

law of the land in India. There were practical difficulties in implementing the lex loci

Report in India since English legal system was highly technical and voluminous.

Moreover, the Judges in India were not well conversant with the complexities of the

British common law and, therefore, they experienced practical difficulties in

following it in India. Further, in order to give effect to lex loci law, it was necessary to

prepare a Digest containing various portions of the common law which were intended

to be introduced in India for the guidance of the Courts and the judges. The

compilation of such a Digest was by no means an easy task as it involved

considerable labour and time.

The cumulative effect of the criticism of lex loci report was that it remained

unheeded by the Government. Nevertheless, it served a useful purpose by focusing the

attention of jurists and legal experts to the complications and practical difficulties

 

 

involved in the process of codification of laws in India. It further apprised the British

Government that literal implementation of English substantive law in India without

necessary modifications was most undesirable keeping in view the Indian conditions.

The Caste Disabilities Removal Act, 1850:

The lex loci report presented by the First Law Commission was not

implemented by the Government due to its pre-occupation with other important

political and military affairs. A part of the Report was, however, implemented to

redress the complaint of Christian converts and for this purpose an Act called the

Religious Freedom Act, 1850, otherwise known as the Caste Disabilities Act, 1850

was passed. The Act protected the proprietary rights of Hindu and Muslim converts to

christianity. Hitherto, the conversion of a Hindu or a Muslim to christianity entailed

loss of right to his property. But consequent to passing of the Religious Freedom Act,

1850, the Hindu and Muslim converts were to continue to retain the right over their

property even after renouncing the Hindu or Mohammedan faith. The Act was

vehemently criticised by Morley on the ground that it was an indirect attempt on the

part of British Government to encourage conversion of Hindus and Muslims to

christianity, which could not be said as an honourable policy of the British

Government.

The Charter Act of 1853:

In view of the extensive modifications suggested by the First Law Commission in the

administration of law and justice in India. It became necessary to enhance the law

making powers of the Legislative Council. This purpose was achieved by the Charter

Act of 1853 which raised the status of the Law Member of the Council to that of the

full-fledged member of the Governor General-in-Council with power to sit and vote in

the Council on all occasions as a regular member. The Act also defined the functions

of the Executive and Legislative Councils more elaborately so as to enable these two

organs of the Government to function more efficiently and independently. The

 

 

strength of the Governor General in-Council while transacting legislative functions

was raised to twelve members including the Governor General, four members of his

Council, Commander-in-Chief, two Judges of the Supreme Court of Calcutta one of

whom was to be the Chief Justice, and four members representing the local

governments. The sittings of the Legislative Council were made public and its reports

were officially published. The Act also provided for the appointment of a Law

Commission,8 for India in England to consider and examine the recommendations

and roposals of the First Law Commission. The Law Commission was to submit its

report to Her Majesty in

England.

Second Law Commission:

The Second Law Commission consisting of seven members was appointed on

November 9, 1853 for a period of three years under the Chairmanship of 5ir John

Romilly. The other members were Sir John Jervis, Sir Edward Ryan, Lord Sher

Brooke, C.H. Cameron, John M. Macleod and T.F. Ellis. The Commission held its

sittings in London till the middle of 1856 and submitted four reports after examining

the proposals of the First Law Commission thoroughly. 1 these, the Second Report,

which was submitted in February 1855, was important as it dealt with the grounds on

which the codification of substantive law was to be carried out for India.

First Report:

The Second Law Commission submitted its first Report in 1855 in which

proposed the amalgamation of the Supreme Court at Fort William with Sadar Diwani

and Sadar Nizamat Adalats and suggested that a High Court be established in place of

these three integrated Courts. Besides, the Commission also suggested the

 

 

preparatiion of uniform Codes of Civil and Criminal Procedure applicable to the

niewly proposed High Court and also to all the inferior courts subordinate to itt.

Second Report:

In its Second Report, the Law Commission agreed with the lex Loci Report of

the First Law Commission that there should be a substantive civil law for the

inhabitants of the mofussil. The Commission expressed a view that only so much

portion of English law should be adopted in India which did not offend the

sentiments, customs and traditions of the natives. It further suggested that the matters

not falling under the codified English law, should be decided according to the

principles of equity, justice and good conscience.

The Commission was oppo4sed to the idea of codification of personal laws of

Hindus and Mohammedans.

Third Report:

In its third Report the Commission proposed a plan for establishing a judicial

system and procedure for the courts in North Western Provinces. The judicial system

proposed by the Law Commission was similar to that of Bengal with minor changes

to meet the special requirements of the frontier region.

Fourth Report:

The Fourth Report of the Law Commission suggested a judicial plan for the

presidencies of Bombay and Madras on a uniform pattern.

Codes Prepared by the Second Law Commission:

 

 

The Second Law Commission submitted four Draft Codes on Civil Procedure

which were finally introduced as codified civil law under the Act No. VIII of 1859.

The Code was, however, repealed twice in 1877 and again in 1882. Finally, the Civil

Procedure code of 1908 was enforced throughout the country which remains, in force

even today.

The Penal Code drafted by Lord Macaulay in 1837 was revised by Sir Barnes

Peacock who was one of the members of the Second Law Commission. It was finally

enacted and passed in 1860. This code has undoubtedly proved to be the most

efficient piece of legislation which continues in force even to this day. However,

consequent to the Indian Independence in 1947, the conditions have drastically

changed and, therefore, the Penal Code needs to be thoroughly revised. The task of

reviewing the Code for changes is under progress by a Committee of Experts

appointed by the Government of India for the purpose.

The Code of Criminal Procedure,9 was also enacted in 1861, which was based

on the recommendations of the Second Law Commission. In 1859, the Limitation

Act, was enacted.

The Indian High Courts Act was passed in 1861 whereby the Supreme Courts

and Sadar Diwani and Sadar Nizamat Adalats were abolished and in their place, a

High Court was established in each of the presidencies.

Third Law Commission:

The term of the Second Law Commission having expired in 1856, it was

necessary to set up another Commission to complete the task of codification initiated

by the Second Law Commission. Therefore, a Third Law Commission consisting of

 

 

six members with Sir J. Romilly as its Chairman, was appointed on December 14,

1861. The other members of the Commission were Sir W. Erie, Sir Edward Ryan, Mr.

Robert Lowe, Mr. Justice Willes and John Macleod. In course of time, Sir Erle, Mr.

Justice Willes and John Macleod were succeeded by Sr. W.M. James, John Henderson

and Justice Lush.

The main function of the Third Law Commission was to proceed with the codification

of substantive law in India as suggested by the Second Law Commission in its Second

Report. This Commission submitted seven reports dealing with the proposals to

codify different laws such as succession, contracts, negotiable instrument, specific

relief, evidence, transfer of property and the revision of the Code of Criminal

Procedure. The Reports submitted by Third Law Commission were as follows:—

First Report:

The first Report of the Commission contained a draft of the law of inheritance

and succession generally applicable to all persons excepting Hindus and

Mohammedans who were governed by their own personal laws. The Commission

noticed that there was great confusion regarding inheritance and succession of

property relating to persons other than Hindus and Mohammedans for whom there

was no personal law applicable in mofussils. Therefore, it prepared a draft on

inheritance and succession and submitted it to the Legislative Council in 1863.

Consequently, with a few changes in the draft, the Indian Succession Act was passed

on March 3, 1865. This was considered as one of the most valuable contributions of

the Third Law Commission. The Act dealt with the provisions of intestate as well as

testamentary succession. it was based on the English law but was quite intelligible and

accessible as opined by Sir Henry Maine. However, it maintained two distinct system

for devolution o1 property, namely, one for movable (personal) property and the other

for immovable (real) property. The Act made a specific provision that marriage

should not, by itself, have any adverse effect to change the ownership of the property.

In addition, the Act also made provision for wills, probate and Letters of

Administration. The principles of equity were incorporated in the Act wherever

 

 

necessary. The Succession Act was subsequently revised in 1925. However, the

Hindus are presently governed by the Indian Succession Act, 1956 and the

Mohammedans have their own personal laws of inheritance and succession.

Second Report:

The Third Law Commission submitted its second Report in 1866 which

contained a draft on law of contract. It was essentially based on the English law of

contract with necessary modifications wherever necessary. According to Rankin, the

draft possessed great merit and in his view, “it was an original and expert attempt to

present a simplified statement of the English law of contract with some important and

remarkable modifications” However, the draft was drastically revised by the

Legislative Council to such an extent that the Third Law Commission resigned in

protest against it in July, 1870. The revised draft was finally passed in 1872 as the

Indian Contract Act.

Third Report:

The third report of the Third Law Commission contained a draft of the

Negotiable Instruments Bill. The report was submitted in 1867 and it was enacted as

the Negotiable Instruments Act in 1881.

Fourth Report:

The fourth report which was submitted by the Commission did not contain any

specific draft on any Code, but it contained the opinion of the Law Commissioners on

the draft of law of contract which had been submitted by them to the Government

earlier.

 

 

Fifth Report:

The fifth Report of the Third Law Commission was submitted in 1868. It

contained a draft on Evidence Bill. Hitherto, the English law of evidence was

followed by the Supreme Courts in presidency towns while the courts which were

outside the presidency towns, were not required to follow the English law as such, but

they could do so if they deemed it equitable. The Mohammedan law of evidence

called the Hedaya was irrational and suffered from many absurdities. This obviously

led to great confusion and uncertainity in the administration of criminal justice.

Therefore, codification of law of evidence was taken up by the Third Law

Commission. However, the draft on Evidence bill submitted by the Commission was

not approved by the Legislative Council India which considered it inadequate and ill-

arranged. Therefore, the draft was referred to the Select Committee, but it was

eventually dropped. Finally, flew draft on law of evidence was prepared by Sir J.F.

Stephen which became Act in 1872 and continues in operation even to this day.

More recently, the present Law Commission of India has emphasised the need

to revised the Evidence Act in view of the changed Indian conditions, particularly, the

rule of admission of hearsay evidence, and admissibility of secondary evidence need

to be revised and restated.

The Sixth Report:

The Sixth Report of the Third Law Commission which was submitted in 1870,

contained draft Transfer of Property Bill.

Seventh Report:

The Third Law Commission submitted its last report in 1870 which contained

a revised draft of the Code of Criminal Procedure. It must be stated that the period

from 1862 to 1872 has been considered as the Golden Age of codification of laws in

British India. Sir Henry Maine, was the Law Member of the Governor General in

 

 

Council upto 1869 and he was succeeded by Sir James Stephen. Both these legal

luminaries made significant contribution to the codification of Indian laws. Nearly

twenty enactments were passed during their tenure between 1863 to 1872.

The Code of Criminal Procedure was further modified in 1872, 1875 and 1877

and finally a single Code of Criminal Procedure was passed in 1882. It was re-enacted

and passed again in 1898 and finally replaced by the Code of Criminal Procedure

1973 which has been recently amended by the Code of Criminal Procedure

(Amendment) Act, 2005.

Sir James Stephen was succeeded by Lord Hobhouse, as a Law Member of the

Council. During his tenure, the process of codification of laws was considerably

slowed down probably because of the directions from Britain to go slow with the

legislative machanism in India. Only the Specific Relief Act,’2 was enacted during

the tenure of Lord Hobhouse. However, he was actively involved in the process of

repealing the obsolete statutes and re-enacting them in a simplified form. During his

tenure, two volumes of English Statutes relating to India, three volumes of General

Indian Acts and ten volumes of Provincial Codes were presented to the Government

which was undoubtedly a significant contribution to the development of laws in India.

Fourth Law Commission:

In 1875, Lord Salisbury, the Secretary of State for India, wrote,13 a letter to

the Government of India that under the provisions of the Indian Councils Act, 1861, it

was possible to appoint a Law Commission in India itself. He suggested that a team of

eminent draftsmen could be entrusted the task of preparing the drafts of different

branches of the Indian law. The Government of India accepted the proposal of Lord

Salisbury and proposed certain substantive laws tobe considered for codification.

They included trusts, easements, master and 231 servant, alluvion and dilluvion

 

 

transfer of immovable Property and Negotiable Instruments. It was proposed that

codification of these laws should be carried out in India. The Bills on Negotiable

Instruments and Transfer of Property originally prepared by the Third Law

Commission in England were remodelled. The drafts of the Bills on trusts, easements,

alluvion and dilluvion and master and servant were prepared by Dr. Whitley Stoken.

All these Bills were referred to the Fourth Law Commission on February 11, 1879.

The Commission consisted of Dr. Whitley Stokes, Sir Charles Turner and Raymond

West. The Commission submitted only one Report to the Government of India in

November, 1879 which consisted of the following recommendations.

(1) The codification of the important divisions of the substantive law should

continue.

(2) The codification should be based on English law with necessary modifications

wherever necessary.

(3) The object of codification should be uniformity of laws but due regard should

be given to local customs.

(4) The propositions of the codified law were expected to be precise and simple.

(5) The Bill passed on the negotiable instruments, transfer of property, easements

etc. should be codified after due modifications.

(6) The Commission stressed on the codification of actionable wrongs.

(7) The Commission further recommended that after the codification of aforesaid

laws, the law of insurance, carriers and liens should also be taken up for

codification.

(8) The rules of interpretation should be systematically framed in chapters.

As a result of the recommendation of the Forth Law Commission, which Was

the last Commission, appointed by the British Government, the Negotiable Instrument

 

 

Act was passed in 1881 and the Transfer of Property Act, the Indian Easements Act

and Trusts Act were passed in 1882.

With the Report of Fourth Law Commission in 1879, came to an end the

period of formal codification of laws in British India. Thereafter, the British

Government did not appoint Law Commissions any more and the work of legislation,

revision and consolidation of Codes was handled by the legislative Department of the

Government of India. However, the contribution of the four Law Commissions to the

codification of laws and development of legal system Won appreciation from legal

authorities in India. According to M.C. Setalvad, “the labour of these Law

Commissions consisting of eminent English jurists, Spread over half a century, gave

to India a system of code dealing with important parts of substantive and procedural

civil and criminal law.”

Permanent Law Commission:

After the Indian Independence in 1947, many colonial laws needed a thorough

revision consequent to the changed conditions of India. Some efforts were made in

this direction but it goes to the credit of Sir Han Singh Gaur, who moved a resolution

in the Legislative Assembly in December, 1947 suggesting the establishment of a

statutory ‘Law Revision Committee’ to review the position of laws. The resolution

was, however, withdrawn subsequently on the assurance from Dr. B.R. Ambedker,

the then Law Minister, who proposed to set up a permanent Law Commission for this

purpose. Thereafter, on July 26, 1954, the All India Congress Committee passed a

resolution to set up a Law Commission to look into the modernisation of laws. On

November 19, 1954, a non-official resolution)5 was moved in the Parliament for the

appointment of a permanent law Commission for revision and modernisation of the

Indian substantive and procedural laws. Accordingly, the then Law Minister, Shri

C.C. Biswas made a declaration in the House on August 5, 1955 announcing the

 

 

appointment of a Law Commission. Finally, a permanent Law Commission was

appointed which consisted of eleven members as follows

1. Mr. M.C. Setalvad, the Attorney General of India as Chairman;

2. Mr. M.C. Chagla, the Chief Justice of the Bombay High Court;

3. Mr. K.N. Wanchoo, the Chief Justice of the Rajasthan High Court;

4. Mr. G.N. Das, retired Chief Justice of the Calcutta High Court;

5. Mr. Satyanarayan Rao, retired Judge of the Madras High Court;

6. Dr. N.C. Sen Gupta, Advocate, Calcutta;

7. Mr. V.K.T. Dhari, Advocate-General, Madras;

8. Mr. Narasa Raju, Advocate General, Andhra Pradesh;

9. Mr. S.M. Sikri, Advocate General, Punjab;

10. Mr. M.C. Pathak, Advocate, Allahabad; and

11. Mr. G.N. Joshi, Advocate, Bombay.

Composition of the Law Commission of India:

The Law Commission of India is not a statutory body. It consists of a

Chairman, who is a retired Judge of the Supreme Court, two full-time members, one

part-time member and a Member Secretary who belongs to the Indian Legal Service.

There is provision for three full time members and three or more part- time members

or consultants depending on the nature of the topics referred to the Commission for

study. The two full-time members are respectively the retired Chief Justice of a High

Court and a Senior Advocate of the Supreme Court of India. There is no formal

allocation of work among the members, though in practice they do undertake or

oversee work on some of the topics.

 

 

The Law Commission also has a sanctioned strength of 13 researchers to assist

the Commission out of which the senior-most research officer is designated as Joint

Secretary and Law Officer.

The terms of reference of the Law Commission as follows

(a) to identify laws which are no longer needed or relevant and can be

immediately repealed;

(b) to identify laws which are consistent with the present trend of economic

globalisation and which need no change;

(c) to identify laws which require changes or amendments and to make

suggestions f or their amendments;

(d) to consider the suggestions for revision/amendment given by the Expert-

Groups in various Ministries or Departments with a view to coordinating and

harmonising them;

(e) to consider references made to it by Ministries or Departments in respect of

legislation having a bearing on their working;

(f) to suggest suitable legal measures for prompt redressal of citizen’s grievances

in the field of judicial administration.

The Law Commission seeks to ensure that the widest section of people are

consulted in formulating proposals for law reforms. For this purpose, questionnaires

or working papers are circulated among the Judges of the Supreme Court, High

Courts , Bar Associations, State Governments, NGO’s, Media persons etc. The

participation of academic lawyers working in Law Colleges and Institutions is also

sought to elicit critical opinion on proposed strategies for law-reforms.

 

 

The report submitted by the Law Commission to the Government being

recommendatory in nature, are required to be approved and placed before the two

Houses of Parliament before being implemented by suitable legislative changes.

The Law Commission was to deal with effective administration of substantive

as well as the procedural laws, re-organisation of civil and criminal courts, legal

education and Bars, conditions for appointment of Judges etc. The object was to

simplify the law and procedure and remove its anomalies and inconsistencies and

achieve uniformity and certainty in the administration of justice.

The Law Commission continues to function as a permanent body. Till now it

has been reconstituted seventeen times and submitted 195 Reports in all. The tenure

of the Law Commission is normally three years after which it is reconstituted

The Law Commission is presently devoting its attention to the following Issues :—

1. to examine laws relating to poverty, population and environmental control and

also suggest remedial measures necessary to harness law and legal processes

in legal aid service of the poor;

2. to review the system of judicial administration eliminating delay and ensure

speedy justice and clearance of arrears and quick disposal of justice;

3. simplification of procedure in order to improve standard of justice;

4. to examine existing law in the light of directive principles, and to attain

objectives set-out in the Preamble;

5. to revise Central Acts of general importance so as to simplify them and

remove anomalies, ambiguities and repeal obsolete laws and enactments

which have outlived their utility;

 

 

6. to set out laws safeguarding the interests of women, children and protection of

human rights.

For the sake of convenience and efficiency, the Law Commission functions in

two sections, one consisting of the chairman and three members who mainly deal with

the reforms of the judicial administration, while the other section mainly deals with

the question of statute law revision. However, both the Sections function in close

liaison with each other under the guidance of the Chairman.

Some Suggestions For Improvement of Law Commission’s Performance :—

Though at present Law Commission is functioning more or less as a

Permanent body with its sanctioned administrative structure, it is not a Statutory body

and therefore, it has to depend largely on the Central Government It functions under

the Department of Legal Affairs. If its status is raised to a full-fledged Department,

many of the administrative problems, Which it is presently facing, may be solved.

The following suggestions may serve useful in improving the performance of

the Law Commission

(i) Since the Commission has also to carry on research work in law, it should

have sufficient fund for the purchase of essential tools such as law books,

periodicals, Journals, computers and other modern equipments in its library.

(ii) Training of the research staff in legal research methodology is yet another area

which needs to be strengthened with emphasis on comprehensive study of

functioning of Law Commissions of other countries.

(iii) It is necessary to ensure timely publication and implementation of the

reports/recommendations16 of the Law Commission. Presently, these are

 

 

delayed for want of timely processing by the Department of Legal Affairs

which is a controlling agency of the Law Commission.

(iv) There is need for greater inter-action with the other Law Commissions at the

international level.

(v) In order to keep the concerned authorities and institutions informed about the

performance of the Law Commission, it would be desirable if it brings out a

newsletter or periodical publication of its own, which may be circulated to

various courts, Bar Association, Bar Councils, law faculties etc. Media

persons should also be approached for dissemination of information regarding

working of the Law Commission.

(vi) The existing pattern of three years tenure of the members of Law Commission

including its Chairman may be enhanced to five years so as to provide it more

stability and sufficient time to implement its proposals and analyse the

outcome thereof.

Law Commissions of SAARC Countries:

It must be stated that presently out of the seven SAARC countries, Law

Commissions exist in all the countries except Bhutan and Maldives whereas

Bangladesh, Pakistan and Sri Lanka have a Statutory Law Commission. The Law

Commission functioning in India and Nepal is non-statutory body. Regional co-

operation among these Law Commissions would go a long way in tackling legal

problems on a common platform.

 

 

CHAPTER V

THE CHARTER ACT OF 1833

The commercial and political privileges of the Company which were granted

to it by the Act of 1813 were to terminate in 1833. Therfore, it was necessary for the

Company to approach the Parliament for the renewal of its Chapter for the next term

of twenty years. This was a period when the doctrine of laissez faire had become the

cardinal principle of economic policy in Britain and economists were striving hard to

free the trade from all restrication and monopolies. On the political plane, the wave of

Benthahtit Iibralm influenced the minds of politicians and law-reformers. The

doctrine of ‘Rights of Man’ had firmly been established. The Reform Act had just

been passed in England in 1832 and Bentham’s views on legislatipn and codification

had caught the attention of the British Parliament. At the time Mecaulay was in

 

 

Parliament and was the Secretary to the Board of Control and James Mill1 was the

Examiner of the Indian correspondence in India House. It was under these

circumstances that Parliament took up the question of renewal of the Company’s

Charter.

Background to the Act:

Like the Charter Act, 1813, the Charter, Act, 1833 was preceded by careful

inquiries into the duct rCompany’s administration in India. There was a strong section

in Parliament which advocated immediate transfer of the Company’s Government in

India to the British Crown. Emphasising the need for an immediate take-over of the

Government of India from the Company, Mr. Buckingham said in the House of

Commons, “it is preposterous to leave the political Government of an immense

empire in the hands of a joint-stock Company.” Macaually, however, pleaded for the

retention of the Company as an organ of Government of India. In his impressive

speech made in the House of Commons, Macaulay quoted James Mill and held that

representative Government was “utterly out of the question” and expressed a view

that “the House of Commons has neither the necessary time to settle the Indian

matters, nor has the necessary knowledge, nor has it the motive to acquire the

knowledge.” Supporting the retention of the Company, Macaulay observed: “it

(Company) was neither Whig nor Tory, neither High Church nor Low Church. It

cannot be charged with having been for or against the Catholic Bill, for or against the

Reform Bill. It has constantly acted with a view, not to English politics but to Indian

politics. And amidst all agitating events the Company has preserved strict and

unsuspected neutrality.” He concluded that under such circumstances he was not

prepared to discard the Company as an instrument of Indian governance particularly

when British public was extremely indifferent to Indian affairs.

In short, the Bill w tro etimewhen Whig party was in power and thTl1aent was

in a mood to favoroTfiTFW codification of laws, Macau’s assertion that the

 

 

Parliament had neither tfliUWThor the will to took into Indian affairs proved me than

cofret às af no stage diring the dicüion 6f thChr illIme one hundred fiftymembers The

biWvas therefore, passed clause by clause almost without any opposition or

di&tTh&ll to become the Charter Act of 1833.

MAIN PROVISIONS OF THE CHATER ACT OF 1833

The Charter Act of 1833 introduced far-reaching changes, both in the

Constitution og the Company and the system of Indian administration. The mam

provisions of the Act may broadly be categorised into followin main heads :-

I. Provisions relating to changes in the ‘Home’ Government:

(1) The Company was allowed to retain its territorial possessions and revenues

for another twenty years to be administered in “trust for His Majesty, his heirs and

successors”.

(2) The Company’s monopoly of China trade and tea trade was terminated.

Thus the Company was completely deprived of its commercial privilege and was to

wind up its business. Henceforth, it was only to function as a governmental power in

India and was to run the Indian administration as an agent of the British Crown.

(3) The system on which the executive government was to be carried on by the

Company in India remained more or less the same. The constitution tf the Board of

Control was changed but as the powers of the Board were executed by its President,

 

 

these modifications had no practical effect. While the Board of Control had the final

power with regard to general administrative policy for Indian Government, the Court

of Directors had the liberty to protesfnd expose to the public the instances of mal-

administration. The despatches from the ‘Home’ Government to the Company’s

Government in Irdia were still to be shouted through the ‘Secret Committee’ as was

being done earlier under the former Acts. Thus the arrang ent provided an adequate

system of checks and balances.

(4) The system of li xicii. cecUir the entry of European subjects in India uner

the Act of 1813 was abolished by the Act of 1833. All the rictions mtry of Europeans

and British subjectwere withdrawn arid ycilJno liave free ingress to India The British

subjects could now also acquire, hold or dispose of property in India and were to

enjoy the freedom of residence, trade or travel in India. Thus the Act for the first time

unsealed the doors of British India to British subjects.

II. Povisions relating to changes in the Government of India:

(1) The Ch4rter Act of 1833 aimed at introducing centralisation in the

adminiration particularly the legislation. With a view to attaining this purpose the

superintendence, direction and control of the whole civil and military government of

the Company’s possessions in India was vested in the Governor General of India in

Council.

(2) The Act, for the first time provided for the appointment of a Fourth

Member to the Governor General-m-Council This Member was to be appomted by the

Court of Directors with the approval Crown from amongst the person not in the

service of the company. The duty this Furth Member w confined entirely to the

subject of legislation and he had powere to sit or vote in the Council except for the

 

 

purposes of making 1aw and regulation.” It was only by courtesy and not by right,

that he was allowed to see the papers or correspondence, or to be made acquainted

with the deliberations of Government upon any subject not immediately connected

with legislation.” Accordingly, Macaulay was appointed as the Fourth Member of the

Governor General-in- Council of India.

(3) The Act also empowered the Court of Directors to appoint the

Commander-in-Chief as an extraordinary Member of the Governor-General’s Coundil

and he was to occupy a rank next to the Govenor-Genera1. The Governor-General

together with four Members of his Council and the Commander-in-Chief as the

extraordinary Member, formed the Supreme Council of the Government of India.

(4) It is significant to note that while the Charter Act, 1833 was being

discussed in the House, the attentions of the Prliament was dràwn’ to three leading

vices in the frame of Indian Government. The first was in the nature of the laws and

regulations, the second was in the ill-defined authority and power from which these

various laws and regulations, emanated; and the third was the animalous and

sometimes conflicting judicatures by which the laws were administered. In other

words, these defects related to (i) laws themselves, (ii) the athority which framed

thern and (iii) the manner in which they were being executed. There were as many as

five different bodues of satute laws fri force in India at that time. They included the

statute law introduced by George I for the Presidency-towns by the Charter of 1726;

the subsequent Ehglish Acts which were expressly extended to any part of India; the

Regulations framed by the Governor General-in-Council; the Regiulations framed by

the Madras Council in force in the Presidency of Madras and the Regulations of

Bombay Code in force in the Presidency of Bombay.

With a view to ending this anomalous situation, Section 43 of the Act of 1833

provided that the legislative power of the Indian Government was exclusively to vest

 

 

in the Governor General-in-Council, who had been reinforced by the addition of a

fourth Law-Member. With introduction of this provision, the legislative power of the

Governors-in-Council of four.’ Presidencies came to an end and they could not enact

laws even for their own Presidencies. They could, however, propose draft of new laws

stating the reasons for them to the Governor General-in-Council; who was required to

take the same into consideration and to communicate his resolutions thereon to the

Governor General-in-Council which had proposed them. The Act made the Governor

General in Council the exclusive law making authority for the whole of British India.

These laws were applicable to all persons, either British or Indians foreigners or

others land for all Courts whether established by the Crown or by the Company’s

charter and all the servants of the Company any where in India. The legislative power

of the Governor General-in-Council also extended to repealing, amending or altering

any laws or regulations in force in India or any part thereof. Clause 73 of the Act

further empowered

the Governor General-in-Council to make “Articles of War” for Indian officers and

soldiers who were in the military service of the Company and for the administration

of justice by Court Martial for all such officers and ranks.

The Governor General-in-Council could not, however, authorise without the

previous sanction of the Court of Directors, any court, save a chartered High Court, to

sentence any of His Majesty’s natural born subjects in Europe or their children or

abolish any chartered Court,’ repeal any of the provisions of the Charter Act of 1833

or the Act for punishing mutiny and desertion by officers, or affect any prerogative of

the Crown, or the authority of Parliament or the sovereignty of Dominion of the

Crown over Indian territories, any part of unwritten laws or Constitution of the United

Kingdom. The Court of Directors had the right to veto any laws or regulations passed

by the Governor General- in-Council.

(5) The Act of 1833 also directed the Governor General-in-Council to appoint

a iTssion, called the ‘Indian inquire mtq th ntute and operation of all kinds of laws in

the existing courts of justice and police establishments in Indian territories and all

 

 

existing form of judicial procedure. The Commission was to report to the Governor-

General, the results of their inquiries and suggest alterations to collate and codify

various laws and regulations. This was necessary for standardisation of the judicial

system by introducing uniform laws throughout British India.

(6) Though the provision of a Fourth Member (Law Member), in the

Governor-Generals Council marks the beginning of separation between, the executive

and the ls1ative functions of the Central Government, but it did not create an

independent statutory Legislative Council as contemplated by Macaulay, the first Law

Member of the Council and the former Secretary of the Board of Control. On

assuming office as law Member, Mecaulay recorded a Minute, contending that the

Charter Act of 1833 purported two Councils—one Legislative Council and the other

Executive Council. The Government of India, however, did not agree with

Macaulay’s contention, and affirmed its stand by adapting a resolution which

contained that Legislative Council had no distinct existence from the Executive

Council, and there was so to say only one Council— the Executive Council with a

separate Legislative department. It was further stated that all the legislative proposals

should first be considered by the Governor General-in-Council in the department to

which they related and if approved, they were to be transmitted to the Legislative

Department for proper action. The stand of the Government of India in this regard

was confirmed by the Court of Directors.

(7) The Act reiterated the overriding power of Governor General. The

Governor General and his Councillors had to exchange and communicate their

rspective opinion on a particular issue in writing to each other giving reasons for

holding that view. If no agreement could be reached by exchange of such

communications, the Governor General was empowered to reject the majority

decision. The only condition being that he had to express in writing for rejecting the

majority decision of his colleagues.

 

 

III. Provisions relating to the Government of Presidencies:

(1) As stated earlier, the Charter of 1833 primarily aimed at the centralisation

of civil and military government of entire British possessions in India into the

Governor General-in-Council at Calcutta. With this end in view the draft of the Act

initially contained a suggestion that the Governor’s Council functioning at

Presidencies should be abolished and the whole governmental authority be vested in

the Governor General-in-Council at Calcutta. But this suggestion was strongly

opposed by the Court of Directors and the Parliament, and the Presidency Councils

were finally allowed to continue. The suggestion, however, did not go completely

unheeded and the powers of the Presidency Councils were drastically curtailed. The

reluctance of the opposition in retaining Governor’s Council in Presidencies is further

evinced from the fact that the fourth Presidency of Agra, which was to be created as a

result of the division of the overgrown Bengal Presidency according to the Charter

Act of 1833 never came into existence.

(2) The number of the members of the Governor’s Council in Presidencies was

fixed at three by Clause 56 of the Act but the Court of Directors were empowered to

reduce this number or to revoke or suspend the appointment of Presidency Councils in

all or any of the Presidencies and in that even the entire executive functions of the

Government of the Presidency were to be vested in the Governor alone.

(3) The Act of 1833 further sought to bring about the centralisation of

financial resources thus putting the existing financial decentralisation to an end. The

Presidency Governments could raise revenues and incur expenditure only with the

authority and sanction of the Government of India. They could not spend more than

the allotted sums on different heads and could also not divert the allotment sanctioned

 

 

for one head to another. They could not grant salary, gratuity or allowance without the

previous sanction of the Governor General-in-Council.

(4) As already stated, the Presidency Governments were completely divested

of their legislative power and the Governor General-in-Council was to legislate for

whole of the British territories in India. Thus the Act provided that the law-making

power for the whole of British India was exclusively vested in the Governor General-

in-Council.

In short, the Act of 1833 brought the Governments of Presidencies in complete

executive, financial and legislative subordination to the Governor General-in-Council

at Calcutta thus paving way for the unification of British India under a solitary

Government of the Governor General-in-Council at Calcutta.

IV. Other Provisions of the Act:

Besides the changes effected by the Act in the powers and working of the

Company’s Home Government and its Central Government in British India and the

Presidencies, certain other important reforms were also introduced. They were as

follows:

(1) The Act provided that the natives of India would be freely allowed to

participate in the administration of the country without any restrictions as to descent,

colour caste, creed or reIigion.

 

 

(2) The Act required the Governor General-in-Council to initiate necessary

steps to abolish slavery and ameliorate the condition of slaves. He was expected to

prepare a draft on this subject and submit it to the Court of Directors.

(3) The Act of 1833 also increased the number of Bishopries to three and

made the Bishop of Calcutta the Metropolitan Bishop in India.

(4) The Act also contained provisions regarding the training of civil servants

for India at the Company’s College at Haileybury and regulated admissions to that

College.

An Appraisal of the Charter Act of 1833:

The Charter Act of 1833 is regarded as the most important constitutional

measure of the 19th century Lord Morly described it as “certainly the most extensive

measure of Indian Government between Mr. Pitt’s famous Act of 1784 and Queen

Victoria’s assumption of the Government of India in 1858.” The main Signific of the

Act lay in the fact that it divested the Compny of its Commercial functions however,

allowing it to retain its political and administrative authority in trust for His Majesty

for a further period of twenty Years. The constitutional position of the Company in

India was now that of a trustee who was to carry on the Government in British India

on behalf of the British Crown. Macaulay observed that this Act was the most

important Act passed by the Parliament till 1909.

The Act of 1833 not only introduced comprehensive and radical changes such

as, administrative, financial and legislative centralisation but also strengthened the

position of the Company’s Board of Control at Home. The President of the Board

 

 

now functioned almost like a Minister for Indian Affairs assisted by two Assistant

Commissioners under him. His Secretary occupied the position of great importance

and he could sit in the Parliament and speak for his Chief when the latter sat in the

House of Lords. The Court of Directors now occupied the position of expert advisers

as they were in liaison with the expert permanent servants of the India House. This

enabled an effective control of the British Parliament over its Government in India.

The centralisation of financial authority in the Governor General’s Council

was considered to be an effective measure t bring the 6ffof PiesidencieS under his

direct control. Likewise, the legislative centraation was mieiidedtb achieve uniformty

and certainty of laws throughout British India. Thus, the Act undoubtedly marked an

important stage in the evaluation of legislative councils and legislative procedure in

British India by doing away with the duality of laws and courts which created

confusion and contradictions in the field of justice and legislation. But, these

measures failed to attain the desired purpose due to the following practical difficulties

involved in their implementation:—

Firstly, the effective control under centralised system seemed unworkable in

view of the vastness of the country and diversity in the people living therein. The

customs traditions, usages of one community differed radically from the other and

under these circumstances uniformity of laws seemed almost impossible. Moreover,

the seat of the Central Government being at Calcutta, it was difficult for the Governor

General-in-Council to exercise effective control over distant Presidencies, particularly

because of the lack of adequate means of communication at that time.

Secondly, there being no representative from the Presidencies in the Supreme

Council, the Government could hardly appreciate the needs, urgency and

requirements of the local Governments. This eventually led to dissatisfaction among

the Presidencies and they were indifferent towards the laws and measures introduced

 

 

by the Supreme Council. This in turn resulted into maladministration, insufficiency

and unnecessary complications.

Thirdly, the over-centralisation as introduced by the Charter Act of 1833

burdened the work of the Governor General-in-Council to such an extent that he could

not devote time and attention to broad questions of principles or matters of public

importance. The power having been centralised in a single authority, that is,

Governor-General, he became very powerful and at time acted as an autocrat.

The Act of 1833 is also important for initiating the process of codification of

lawsvhich eventually led to the formation of the Penal Code and the Codes of Civil

and Criminal Procedure and codification of other substantive laws. The codificatia1 of

laws finally resulted in the evolutic of a uniform judicial procedure. The Act made

provisions for the constitution of Law Commission to enquire into the jurisdiction

powers and rules of courts of India and police establishment, etc. and it functioned

well under Macaulay.

Though the Act contained an elaborate scheme for the reformation of laws and

legislation, it did not favour the separation of legislative from the executive functions.

Not only that, even the formal process of differentiation between the legislative and

executive functions of the Council, was reserved by admitting the Law Member in the

meetings of the Council other than those for making laws and regulations, thus

rejecting Macaulay’s two-council theory.

Another significant provision of the Charter Act of 1833 related to the so-

called “noble clause” which provided that “no. Indian subject of the Company would

be debarred from holding any office under the Company by reason of his religion,

place of birth descent or colour.” Thus the object of the clause was to ‘remove

 

 

disqualification’ and set aside the narrow consideration of self- interest. Henceforth,

fitness alone was to be criterion of eligibility, without any regard to religion, descent

or place of birth. But this provision containing ‘excellent sentiment’, remained a

“grandiose gesture which signified nothing really substantial”. The Charter Act made

no provision to secure the nomination of Indians to the covenanted service of the

Company. As such no Indian was appointed to the covenanted service during the

Company’s regime until 1858 and the Indians remained excluded from holding high

posts in both the civil and the military departments of the Company. Thus the

provision achieved practically nothing for the Indians. It, however, became the sheer

anchor of the future political agitation in India.40 The educated Indians who were

inspired by this noble and humanitarian declaration went abroad for higher studies

and on return when they were not offered high positions, they clamoured and

protested and this accelerated their political movement in India.

The cumulative effect of the Act of 1833 was that it paved a way for the

unification of British India and the establishment of a strong Central Government in

this country .The complete subordination of the Presidencies and transformation of

the Governor General of Bengal into Governor General of India clearly recognised the

intention of the authors to unify the fragments of British Indian territories. This was

indeed a significant step to tighten up the administration of India.

The Charter Act of 1833 was undoubtedly the most important measure enacted

by the Parliament during the 19th century. Other constitutional measures of that

century such as the Acts of 1813 and 1853, the Government of India Act, 1858, the

Councils Acts, 1861 and 1892 sink into insignificance as compared to the Charter Act

of 1833. The Act, unlike the other measures of that century, not only introduced far

reaching changes in the Government of India but also enunciated certain admirable

principles and noble declarations which made it “most important Act passed by the

parliament till 1909”. It would be seen that the Charter Act of 1813 had curtailed the

monopoly rights of the Company by throwing open to His Majesty’s subjects the

 

 

trade with India except trade in tea and trade with China which were reserved for the

Company. The Act introduced no modification in the old constitutional and

Governmental set up of the Company. Again, the Act of 1853 also did not

contemplate substantial change from the constitutional standpoint and it merely

introduced certain changes which simplified the administration in India. The Act of

1858 also did not go beyond the transference of the Company’s Government to the

Crown while the Councils Act, 1861, exclusively related to the Indian Councils4’

their constitution powers and functions. The Act of 1892 provided greater scope of

Indians in the Councils. The Charter Act of 1833 not only introduced radical changes

like centralisation, codification and unification of British Indian but it also initiated

certain benevolent steps to ameliorate the condition of Indian masses—a feature

altogether new to the constitutional pronouncements of that century. Thus the Act

definitely touched the broad humanitarian principles and contained lofty motives

which enhanced its prestige and significance.

 

 

CHAPTER VIII

THE INDIAN COUNCILS ACT OF 1861

Early history of Company’s rule in India reveals that at the initial stages of its

territorial acquisitions in this country, it confined its activities to revenue collection

and routine administration. The legislative functions were incidental and subordinate

in nature and were performed by the executive head of the Government. The

evolution of the legislative process in British India can be traced back to the Charter

Act of 1833, when a ‘Law Member’ was added as a fourth member to the Executive

Council of the Governor-General. His functions were exclusively confined to law-

making. Thereafter, the Charter Act of 1853 made an effort to differentiate the

‘legislative’ functions of the Governor General-in-Council from those of its

‘executive’ functions by enlarging the constitution of the Council for legislative

purposes. Thus, while performing its legislative functions, the Governor General-in-

Council, besides its usual four members and the Governor General, consisted, of

seven other members and in that capacity it was called the ‘Legislative Council. The

Legislative Council transacted its business on more or less the same pattern as the

British Parliament and even resorted to inquests and disposal of petitions. However,

the Home authorities did not appreciate this tendency of the Legislative Council and

Sir Charles Wood, the President of the Board of Control denounced it by saying that

the Legislative Council was assuming “more weight and authority than was necessary

for the purpose of elaborating the law”.

The Background:

Before the British Government could initiate measures to rectify the defects in

the working of the Legislative Council by investing it with purely legislative

 

 

functions, the mutiny broke out in 1857. This brought home to the British

Government the fact that lack of contact and understanding between the ruler and the

ruled was one of the principal causes of Indian Mutiny. Hitherto, no constitutional

outlets were provided for the grievances of the natives whose interests were directly

affected by the laws formulated by the Government of India. Lord Daihousie as early

as 1853, the ‘man on the spot’ had suggested the inclusion of a “Native Gentleman” in

the Legislative Council to give it a representative complexion. But his suggestion

went unheeded as the Court of Directors and the President of the Board of Control

considered it a dangerous step. The result was that both the people and the

Government misunderstood each other and this resulted into unexpected revolt in the

country. Sir Syed Ahmad Khan regarded non-admission of Indians into the

Legislative Council as a primary cause of the mutiny. Sir Bartle Friere, an eminent

member of the Governor General-in-Council also shared similar views and observed,

“it was dangerous to legislate for millions of people with few means of knowing

except by a rebellion whether the laws suited them or not.”

Another factor which needed immediate attention of the Government at

‘Home’ was the dissatisfaction of Presidencies for having been deprived of the law-

making power for their respective territories. Though the Act of 1853 accepted the

principle of representation by inclusion of one member from each of the Presidencies

to the ‘Legislative Council’, this did not satisfy the local Governments of the

Presidencies. Lord Canning also expressed his dissatisfaction and suggested that the

representation of the local Governments in the Legislative Council was inadequate

and they should be allowed a greater participation in the law-making for their

respective territories. For this purpose instead of suggesting an increase in, the

number of the representative members from subordinate Presidencies he suggested

that the Legislative Council should be split into distinct Councils at Calcutta, Madras

and Bombay. He not only proposed that the Governors of Madras and Bombay should

each have a Legislative Council, but also that Bengal, North-West Provinces and

Punjab should also have its separate legislature. In his opinion all measures of local

administration not affecting the revenue should fall within the competency of the local

 

 

Councils, and if the matter affected the revenues, the sanction of the Governor

General-in-Council should be obtained for introducing the bill on that subject. He,

however, maintained that making of laws for those Provinces which had no

Legislative Councils i.e. the nonregulation Provinces should be vested in the

Legislative Council of the Governor-General. Lord Canning’s suggestion came out as

a result of the practical difficulties experienced in the working of the Governor

General’s Legislative Council which had to legislate for whole of India in all matters

without being conversant with the conditions prevailing in different parts of the

country and needs of the people living in these distant territories.

The working of the Legislative Council and procedure followed by it also led

to certain unpleasant results. The Parliamentary procedure followed by the Council

caused unnecessary delay, impeded business and hindered efficiency of the

administration. Since the proceedings of the Council were open to the press and the

public, the clashes arising between the servants of the Government and a Judge, who

often assumed the role of the leader of opposition and criticized the policies of the

Government, undermined the authority and prestige of the Government. It was,

therefore, necessary to put an end8 to this chaotic condition by a new constitutional

measure which finally led to the enactment of the Indian Councils Act of 1861.

The demands of the Indian people for some substantial changes in the

governmental machinery of India also necessitated modification in the constitutional

arrangement. The Government of India Act, 1858, introduced far- reaching changes in

the Indian administration by abolishing the dual Government, appointing a Secretary

of State and constituting an All India Council to assist him. As all these changes were

exclusively concerned with the ‘Home’ Government, therefore, it was realized that

certain changes in the Indian Government were also needed.

 

 

There were mainly three events which immediately led to the passing of the

Indian Councils Act, 1861, they were (i) the differences between the upreme

Government and the Government of Madras on the Income-Tax Bill, (ii) the doubts

raised on the validity of laws introduced in non-Regulation Provinces without

enactment by the Legislative Council; and (iii) the insistence of the Legislative

Council on certain correspondence between the Secretary of State and the

Government of India to be communicated to it.

Indian Councils Act, 1861:

Consequent to the scheme of Reforms submitted by the Government of Lord

Canning to the Secretary of State, a Bill known as the Indian Councils Bill was

introduced in the British Parliament by Sir Charles Wood who called it as a. “most

important measure.” The Bill was readily passed by the House and finally received

Royal assent on August 1, 1861 and came in force at the close of that year. The main

provisions of the Act may be summarized under the following sub-heads:

(i) The provisions relating to the Central Executive.

(ii) The provisions relating to the Central Legislative.

(iii) The provisions relating to the Provincial Legislatures.

I. Provisions relating to the Central Executive:

(1) The Act of 1861, enlarged the Executive Council of the Governor-

General. Now it was to consist of five members of which three were to be persons

who had served in India for ten years either under the Company or the Crown and one

was to be a Barrister or Advocate of five years’ standing. The Secretary of State for

India retained the power to appoint Commander-in-Chief as an Extraordinary Member

of the Executive Council.

 

 

(2) The Act empowered the Governor General to make rules and orders

concerning the conduct of business. It marks the beginning of the ‘portfolio system’ in

which every member of the Council was made responsible to his Department and the

acts done in the Council were reckoned as the acts of the Governor General-in-

Council.

(3) The Governor General-in-Council could appoint in case of his anticipated

absence from headquarters, a President of the Council with all the powers of the

Governor-General “except that of assenting to or withholding his assent from or

reserving for the signification of Her Majesty’s pleasure any law or regulation as

hereinafter provided.”

(4) The Governor General had power to overrule the majority in the Council in

matters of safety, tranquility and interests of British possessions in India. He was also

empowered to create new Provinces for legislative purposes and appoint Lieutenant-

Governors for them, and to divide or alter the limits of any Presidency or Province.

(5) The Governor General-in-Council could authorize the Governor General

alone to exercise all or any of the powers of the Governor General-in-Council except

those of making laws and regulations.

II. Provisions relating to the Central Legislature:

(1) The Indian Councils Act, 1861, remodelled the Legislative Council

established under the Charter Act of 1853. For the purposes of legislation the

Governor General’s Council was enlarged into a Central Legislative Council

consisting of not less than six and not more than twelve additional members

 

 

nominated by the Governor-General and holding office for two years. Of these

additional members, not less than one-half were to be non-official, that is to say,

persons not in the civil or military service of the Crown.’ The Lieutenant- Governor

of a Province was also to be an additional member whenever the Council held a

legislative within his Province.

(2) The functions of the new Legislative Council were confined strictly to

legislation and it was expressly forbidden to transact any business except the

consideration and enactment of legislative measures, or to entertain any motion except

a motion for leave to introduce a Bill or having reference to a Bill actually

introduced.’6

(3) The Legislative Council was to make laws for British India but the

measures relating to the public revenues, religion, army, navy or foreign relations

were not to be introduced without the previous sanction of the Governor General. The

assent of the Governor General was required for every Act passed by the Council, and

any such Act would be disallowed by Her Majesty, acting through the Secretary of

State.

(4) The legislative power of the Governor General-in-Council was declared to

extend to making laws and regulations for repealing, amending or altering any laws or

regulations for the time being in force in British India, and to making laws and

regulations for all persons (British or natives or foreigners), for all Courts of Justice,

and for all places within the said territories, and for all servants of the Government of

India within the dominions of princes and States in alliance with Her Majesty. But

“there were express savings for certain Parliamentary enactments, for the general

authority of Parliament, and for any part of the unwritten laws or the Constitution of

the United Kingdom whereon the allegiance of the subject or the sovereignty of the

Crown may depend.”

 

 

(5) The Indian Councils Act, 1861, empowered the Governor General to issue

ordinances’8 on his own authority without his Council, in cases of emergency. But

such ordinances were not to remain in force for more than six months. He was to

intimate to the Secretary of States the reasons for issuing such ordinances.

III. Provisions relating to the Provincial Legislatures:

(1) The Indian Councils Act, 1861 restored to the Governments of Madras and

Bombay’ powers of making and amending laws. The Councils of the Governors of

Madras and Bombay were expanded for legislative purposes by the addition of the

Advocate General and certain other members nominated by the Governor. These

members could sit and vote in the meetings of the Governor’s Council held for the

purpose of making laws. The power to legislate was vested in the Governor in

Council, who was authorized to appoint time and place for the meeting, and was to

frame rules for the conduct of its business. The assent of the Governor was necessary

to the validity of a law whether or not he Was present at the meeting at which it was

made. No line of demarcation was drawn between the subjects reserved for the

Central and the local legislatures respectively, but previous sanction of the Governor

General was necessary for the laws enacted by the local legislatures. In case the assent

being withheld, the Governor General was to signify to the Governor in writing, his

reasons for withholding it. Even after the Governor General’s assent the law could be

disallowed by Her Majesty through the Secretary of State for India in Council.

(2) The Provincial Legislatures were, however, not empowered to take into

consideration any of the laws relating to army, foreign and political affairs, customs,

coinage and currency, patents, copy rights, Penal Code, religion or Post and

Telegraphs, etc. without the prior sanction of the Governor General.

 

 

(3) The Act did not establish any new local legislatures in India except those

of Madras and Bombay. But the Governor General-in-Council was empowered to

establish, by proclamation, a Legislative Council for Bengal2’ and was further

empowered to establish similar Councils for North-Western Provinces and Punjab.22

These Councils were to consist of the Lieutenant Governor and certain number of

nominated councillors, and were to be subject to the same provisions as the local

legislatures for Madras and Bombay.

(4) The Act empowered the Governor General to constitute by proclamation,

from time to time new Provinces for legislative purposes and appoint new Lieutenant-

Governors and to alter the boundaries of existing Provinces.23 The proclamation of

the Governor-General to this effect could be valid subject to previous assent of the

Crown.

(5) The local Legislatures had no power to control or effect by their Acts, the

jurisdiction or procedure of the High Courts. This power was exclusively vested in the

Parliament and the Legislative Council of the Governor General.

Significance of the Indian Council Act, 1861:

According to Cowell, the Indian Councils Act, 1861, was passed in order to

“consolidate and amend the former Acts of Parliament relating to the constitution and

functions of the Council of the Governor General, and to give powers to the

Governors in Council in Madras and Bombay to make laws for the Government of

those Presidencies, and to enable the like legislative authority to be constituted in

other parts of Her Majesty’s Indian dominions. Expressing, similar views, Professor

Gurmukh Nihal Singh has characterised the Indian Councils Act, 1861 as a great

landmark in the constitutional history of India for two obvious reasons. In the first

place, it made provisions for the inclusion of ‘native-element’ to the Councils Sir

 

 

Bartle Friere and Sir Saiyed Ahmad had already emphasized the absolute necessity of

non-official advice in the work of legislation. The expansion of the Central as well as

the Provincial Legislature by addition of non-official members provided opportunities

for the Government to know the views of the natives and helped in removing their

misunderstandings regarding the intentions of the Government. In the second place,

by restoring legislative power to the Governments of Madras anc Bombay and by

making provision for the institution of similar Legjsjatj Councils in other Provinces,

the Act “laid down the policy of legislaj devolution which resulted in the grant of

almost complete internal autonomy to the Provinces in 1937.” The representative

system in India began with the Act of 1861, though in a halting and indirect manner.

Nevertheless, it made the Government “responsive to public opinion without affecting

its Supermacy and authority in any way.” Thus the Act brought to an end the period

of centralized legislation and laid the foundation of the policy of legislative

decentralization in the Indian constitutional history.

The framework of the Indian Councils Act, 1861 furnished a guideline upon

whIch the future Government of India was carried on till the end of the British rule in

India in 1947. The Legislative Council with non-official members, the portfolio

system, the power of promulgating ordinance etc. are the significant features of Indian

Government which have their origin in the Act of 1861. Therefore, it would be no

exaggeration to say that the Act deserves the credit for laying down the foundation of

the present constitutional system of India. Particularly, the introduction of portfolio

system, that is assignment of a department to each of the members of the Council

relieved the Governor General of a good deal of routine and formal business and he

could devote more time and attention to important matters concerning the

adminiStra6on of the country.

The Act of 1861 laid the beginning of a definite legislative procedure to be

followed by the Legislative Council while conducting their business. The authors of

the Act had exercised abundant caution to ensure that the Councils, both at the Centre

 

 

and at the Provincial level, do not develop into “miniature Parliament” as hitherto was

the case with the Legislative Council of the Governor General. The Secretary of State

in his despatch wrote to the Governor General that “the rules of procedure at meeting

for making laws and regulations should be few and simple, and business should be

conducted much in the same way as in the Committee or Commission.” The Councils

were not to sit as a permanent body but were to meet only when the projects of law

were ready for discission Every step was taken to obliterate the trace of separate

existence of the Legislature by deliberately avoiding the use the terms ‘session’ or

adjournment, for they would have implied a degree of certainty as to the time and

duration of the meeting of the Legislative Council.

Defects:

Despite these noteworthy provisions, the Act of 1861 was not altogether free

from defects. The Indian opinion viewed this Act as a retrograde measure for it gave

to the Councils only legislative functions wher’as the Charter Act of 1853 though it

consisted of official members alone, had functioned both as a legis1aive and a

deliberative body. The Legislative Councils established by this Act at the Centre as

well as at the Provinces were mere committees for the purpose of making law. They

could not debate or discuss over the conduct of the Executive nor could they discuss

the budget. They could also not enquire into the grievances of the public and call for

any information on a public matter. Thus the powers of the Legislative Councils

created by the Act of 1861 were extremely limited and as rightly observed by

Coupland, “they were akin to the durbars which Indian rulers had traditionally held in

order to sound their subject’s opinion.” This clearly indicated that the British

Parliament was against the establishment of representative Councils or responsible

Government in India.

Another lacuna left in the Councils Act of 1861 was regarding the inclusion of

non-official members, both in the Central and the Provincial Legislative Councils. No

 

 

statutory provision was made for the nomination of Indians. These non-official

members were nominated rather than elected. These members were either native

Princes or their Diwans or Zamindars, having little interest in the legislative business

of the Council. They were, accordingly, reluctant even to attend the meetings of the

Councils. Many of the members did not know English language and, therefore, were

unable to understand the proceedings of the Councils.30 Being the nominees of the

Governor General or the Governor, the members thought that they could not oppose

or criticise the Government policy. Naturally such persons could never be expected to

be the true representatives of Indian masses and their presence in the Legislative

Councils was simply ceremonial and formal.

The Indian Civil ServhAct, 1861:

Besides the Indian Councils Act, 1861, two other Acts of great importance

were passed by the Parliament in the same year. The first was called the Indian Civil

Service Act, 1861. The main object of this Act was to regularize certain appointments

made in the past in contravention of the terms of the Charter Act of 1793 owing to

exigencies of time. The Act reserved almost all higher civil appointments3’ for the

members of the covenanted civil service. The recruitment of the members of the

covenanted civil service was by open competitive examinations held in London. The

recommendation of holding simultaneous examination in India for enabling the Indian

youths was, however, not acted upon inspite of the assurance of Civil Service

Commissioners.

The Indian High Courts Act, 1861:

Another important Act passed in this year was the Indian High Courts Act,33

1861. The Act empowered the Crown by Letters Patent, to establish High Courts of

Judicature at Calcutta, Madras and Bombay and on their establishment, the old

‘Supreme Courts’ and the old ‘Sadar Adalats’ were to be abolished. The jurisdiction

and powers of the abolished courts was to be transferred to the new High Courts.

 

 

Thus, the Act brought about the amalgamation of the ‘Supreme’ and ‘Sadar’ Courts

functioning in the Presidency towns of Calcutta, Madras and Bombay.

The Indian High Courts Act, 1861 says Ilbert, ‘closed the series of

constitutional status consequent to the transfer of the Government of India to the

Crown. Such Acts of Parliament as have since then been passed for India have done

little more than amend with reference to minor point, the Act of 1858 and 1861.

Subsequent Acts During 1861-92:

Some other Acts that were passed during the period 1861-92 mostly related to

the administrative and political changes in the country and were little more than minor

amendments to the Acts of 1858 and 1861 .The main among these Acts were as

follows:

The Indian High Courts Act, 1865 empowered the Governor General of India

to make alterations in the limits of the jurisdiction of the several High Courts and by

the same Act the High Courts could exercise their jurisdiction over native Christian

subjects of Her Majesty.

Another Act, of the same year extended the legislative powers of the Governor

Generals Council to all British subjects in native state whether servants of the Crown

or not and authorized the Governor General-in-Council to define and alter the

territorial limits of the Presidencies of Lieutenant- Governorships.

The Government of India Act, 1869 introduced a change in the structure of the

Government and empowered the Secretary of State for India to fill the vacancies as

 

 

and when they arose in Indian Council and changed the tenure of members of the

Council from “good behaviour” to a term of ten years. The Act also transferred to the

Crown from the Secretary of State in Council, the right of filling vacancies of the

members of the Councils in India.

The Indian Councils Act, 1869, further extended the legislative powers of the

Governor General’s Councils by enabling it to make laws for all native Indian

subjects of Her Majesty in any part of the world whether in India or not.

In 1870 another Act was passed which was known as the Indian Councils Act,

1870. This Act introduced significant changes in the legislative machinery of India.

The Act empowered the Governor General-in-Council to pass regulations in certain

cases without the necessity of placing them before the Legislative Council. This

machinery was very often used to enforce regulations in less advanced districts of

different Indian Provinces and numerous regulations were passed by the Governor

General-in-Council in exercise of the power under this Act.

The same Act also contained a provision,43 that the Governor General could

overrule the majority opinion of his Council, if in his view the measure affected the

safety, tranquility, or interests of the British possessions in India or any part thereof.

Another important provision was contained in Section 6 of the Act which enabled the

Governor General to appoint Indians “of proven merit and ability” in the civil service

without requiring them to pass the competitive examination in England. The

conditions of such appointments were to be regulated by the rules framed by the

Governor General-in-Council with the approval of the Secretary of State in Council.

The Government of India, however, did not appreciate the provisions of the Act

relating to the appointment of Indians to civil service and, therefore, delayed making

of regulations till 1873 despite repeated reminders from the Secretary of State. The

rules when framed were found to be against the spirit and intention of the Act, and,

 

 

therefore, were not brought into force. Consequently, new regulations had to be

framed by the Government of Lord Northbrook which however, remained inoperative

except one or two appointments of Indians to the judicial branch of the services.

Finally, in 1879 rules were framed for the civil service of the country by the

Government of India.

After the Government of India Act, 1870, two minor Acts were also passed in

1871, namely, the Indian Councils, Act, 1871, which made slight extension of the

powers of local legislatures and the Indian Bishops Act, 1871 which regulated the

leave or absence of the Indian Bishops.

The Act of 1873 resulted into formal dissolution of the East India Company

from January 1, 1874.

The Indian Councils Act, 1874 enabled the sixth member of the Governor

General’s Council to be appointed for the purposes of public works.

The Council of India Act, 1876 enabled the Secretary of State to appoint any person

having professional or peculiar qualifications to be the members of the Council of

India. Sir Henry Maine was appointed to the Council of India in exercise of powers

conferred by this Act.

Another Act passed in the same year was the Royal Titles Act, 1876 which

authorized Her Majesty to assume the title of Empress of India.

 

 

The Indian Salaries and Allowances Act, 1880 enabled the Secretary of State

to regulate by order certain salaries and allowances which had been previously fixed

by the statute.

The Indian Marine Service Act, 1884 enabled the Governor General-in-

Council to make laws for maintaining discipline in a small marine establishment

called Her Majesty’s Indian Marine Service, the members of which were neither

governed by the Naval Discipline Act nor under the Merchant Shipping Act.

The Council of India Reduction Act, 1889, authorized the Secretary of State to

abstain from filling vacancies in the Council of India until the number was reduced to

ten.

It is evident from the minor constitutional changes which were introduced by

the above mentioned Acts, that the Government of India preferred to follow a policy

of “masterly inactivity” during the period of thirty years after the enactment of Indian

Councils Act, 1861. The two Afghan Wars, and a Burmese War during this period

were, however, inevitable from the point of view of warding off foreign influence and

security of British India.

 

 

CHAPTER IX

THE INDIAN COUNCILS ACT, 1892

The Legislative Councils established by the Act of 1861 failed to satisfy the

aspirations of the Indian masses. The Legislatures constituted under this Act included

only a few nominated non-officials who were either retired Government officials or

big iamindars or princes who were hardly interested in the legislation for India. Being

the nominees of the British Government they erroneously believed that they were

duty-bound to support the legislative measures of the Government. Thus their

presence in the Councils was of little use to Indians though the British Government

elicited a good deal of useful information from them. Moreover, as already stated, the

powers of the Legislative Councils under the Act of 1861 had been restricted with the

result the laws enacted by them were nothing but mere orders of the Government. The

elective element was completely missing from the Councils and as such they could

not be called true representatives of the Indian people. This led Indians to agitate for

substantial reform in the existing Councils during eighties of the 19th century which

 

 

eventually culminated into the Indian Councils Act, 1892. Pointing out the

shortcomings of the working of the Legislative Councils in India, Lord Mayo

observed that the Government of India was “in one respect in an unfortunate position,

for there was no assembly or any means of discussion similar to that prevails in other

countries, whereby the members of the Government can give an immediate

reply……… to even the most absurd accusations” Similar observations were made by

Lord Ripon when he wrote to Lord Hartington, the Secretary of State for India, that

the Supreme Council constituted under the Act of 1861 needed to be reorganized as it

lacked representative character and ,served no useful purpose to the Governor General

for ascertaining public opinion. He maintained that the nominated members took no

active interest in the business of the Council.2 He, therefore, suggested that the

Supreme Council should consist of not more than ten elected members, of whom three

were to be the representatives from Municipalities of Madras, Bombay and Calcutta

while the others from the municipal committees of different towns selected by the

Governor General-in-Council.

Formation of Indian National Congress and its demand for Elective

Representation:

The impact of enlightened liberalism and political ideals of the west coupled

with the general discontent and disappointment among the Indian masses against, the

non-fulfilment of promises by British Government paved way for the Indian National

Movement. An organized beginning in this direction was made when seventy-two

leading Indians from different parts of India met for the first time in Bombay on

December 28, 29 and 30, 1885 to work out a common programme of political action.3

This marks the beginning of the Indian National Congress in India. In its session the

Congress passed a resolution calling for the expansion of the Supreme Council and

the local Legislative Councils in India by inclusion of a considerable proportion of

elected members. It demanded creation of similar Councils for North-West Provinces,

Oudh and Punjab and insisted that all budgets be referred to these Legislative

Councils. The demand for the expansion of Councils was reiterated and elaborated at

 

 

the Second Session of the Congress which was attended by 450 delegates and

presided by Dadabhai Naoroji. It, inter alia, contained that elective element was an

essential ingredient of the demand for expansion of the Councils. Same resolution was

repeated in the Third Session of the Indian National Congress in 1888 which was

attended by 600 delegates and in the Fourth Session held in 1889. in which as many

as 1200 members participated. Thus, in essence the enlargement of the Supreme as

well as local Councils on elective principles was tile main demand of the Indian

National Congress during 1885—90. Commenting on this point Coupland rightly

observed, “European knowledge had created a demand for European institutions”

Dufferin Committee’s Proposals for Reforms:

The pressure of demands from the Indian National Congress made it

abundantly clear that the sentiments of the people could not be thrown to wind any

longer. Therefore, Lord Dufferin, the then Viceroy and Governor General of India

(1884—88) in a minute recorded in 1886 emphasized the need to liberalize Provincial

Councils, if not the Supreme Council. He firmly believed that the association of

Indians representing the enlightened public opinion in the proposed reformed

Councils would mean that Government of India had the support of Indian people.

Therefore, during his entire tenure Lord Dufferin tried hard to persuade the Secretary

of State to agree to the reformation of Legislative Councils and he appointed a

Committee consisting of Sir George Chesney, Sir Charles Aitchison and James

Westland to plan out a scheme for the re-organization of the Councils.

The main recommendations of Dufferin Committee were as follows:

(1) Expansion of the Presidency Councils of Madras, Bombay and Calcutta and

enlargement of their functions.

(2) Establishment of an Executive Councils at Calcutta as a condition precedent to

the reconstitution of the Legislative Council.

 

 

(3) Provision of elective representatives.

(4) Inclusion of Muslim representatives in proportion to their population to ensure

fair representation to all classes.

(5) A few seats to be reserved for being filled up by nomination as a safeguard

against any inequality in the result of elections.

(6) The elective element in the Council was to be two-fifth of its total

membership.

Lord Dufferin made it clear that the scheme of reforms was intended to raise

the status of the Councils and to introduce into them, the elective priniple. He,

however, made it clear that the scheme was not devised to introluce parliamentary or

constitutional Government like that of Britain. Undtr his scheme of reforms the

ultimate authority and paramount control was esseithally to vest in the Provincial

Government and the Governor could ovenule his Council whenever he deemed it

necessary. The recommendations of Lord Dufferin’s Committee were limited to the

reconstitution of the Provincial Courcils and reorganization of the Supreme Council

was to be deferred till the resuls of the experiment in the Provinces were fully known.

Lord Lansdowne’s Proposals:

After the Government of India’s recommendations on reforms, Lord Dufferin

left Itidia and was succeeded by Lord Lansdowne. The Secretary of State, Lord Cross

was willing to en1arg the Provincial Councils but was opposed to the introtuction of

elective principle. In fact, he severely criticised Lord Dufferin for making such a

recommendation without first ascertaining the views of the Hon Government. The

British Prime Minister Lord Salisbury also expressed dissatisfaction with Dufferin’s

suggestion for elective principle and called it a dangtrous step. The Secretary of State,

therefore, invited Lord Lansdowne’s fresh proposals on reforms.

 

 

In view of the vigorous activities of the Indian National Congress and persient

demand from Congressmen for greater representation of Indians in the Legis’ative

Councils, Lord Lansdowne in 1889 supported the suggestions of his predecessor and

recommended expansion of the Provincial Councils. He wanted that the Councils

should consist of partly elected and partly nominated members. He, however,

suggested that the number of elected members should not eceec’ that of nominated

members and he was particularly of the opinion that ji ws not fair to introduce a

uniform system in this regard in all the Provinces.

As a result of Lansclowne’s proposal, the Secretary of State agreed to the

expansion of Councils but he rejected the introduction of elective principle on the

ground that it was foreign to India.8 The Secretary of State observed that “the

representation of different classes and communities could best be secured by a simple

extension of the existing system.”

The Government of India submitted a draft scheme to the Secretary of State

and communicated to the latter that if the introduction of elective principle was not

possible the Governor General-in-Council should be authorized by the Act, subject to

the approval of the Secretary of State, to appoint additional members in the

Legislative Councils.

THE INDIAN COUNCILS ACT, 1892

In the meantime, the India National Congress also took up the issue of reform

and reconstitution of the Councils for consideration in its fifth Session held at

Bombay in 1889. Mr. Charles Bradlaugh, a member of British Parliament and a

staunch supporter of free institutions also attended this session and promised to

introduce a Bill to this effect in the British Parliament on his return to England. He,

 

 

accordingly introduced a Bill in British House of Common in 1890 to amend the

Indian Councils Act of 1861 suggesting the introduction of elective principle through

a system of electoral colleges and the number of official members being restricted to

not more than one-fourth while those of elected members not less than one-half in the

Central as well as Provincial Legislative Councils. The Bill, however, did not receive

the attention of the House as it was “crowded by other business”. Charles Bradlaugh

re-introduced the Bill again in 1891 but this time also it met the same fate. It was in

February 1892 that the House of Lords introduced a fresh Bill on this issue which was

passed by both the House and finally became the Indian Councils Act of 1892. The

main object of this Act’ was to increase the number of Councillors and to authorize

discussion of financial statement of the Government and asking of questions. The idea

was “to widen the basis and expand the functions of the Government of India and to

provide further opportunities to the non-official and native element in Indian Society

to participate in the work of the Government.” Broadly speaking, the Act sought to

confer three main concessions on the Supreme and Provincial Councils, namely, the

privilege of financial criticism to the Councillors, the privilege of interpellation, and

addition in the number of members in both categories of Councils. The main

provisions of the Indian Councils Act, 1892 were as follows:

(a) Changes in the Supreme Legislative Council:

(1) The Act provided for an increase in the number of ‘Additional Members’

in the Supreme Legislative Council. The number of Additional members in the

Supreme Legislative Council was to be not less than 10 but not more than 16, of

whom not less than one-half were to be non-officials. It was now to consist of six

official and ten non-official Additional members. Four of the non-official members

were to be chosen by the Legislative Councils of Madras, Bombay, Bengal and North-

West Provinces. When the Councils were constituted for Punjab and Burma, they

returned one Member each. One member was appointed on the recommendation of

the Calcutta Chamber of Commerce. The rest were nominated non-official members.

Besides sixteen Additional members, there were nine ex officio members. Thus, in all

 

 

the Supreme Legislative Council was to consist of twenty-five members. The official

members and the ex-officio members constituted an official majority.

(2) The Governor General-in-Council was empowered with the approval of the

Secretary of State in Council, to make regulations as to the conditions under which

the nomination of ‘Additional Members’ was to be made.

(3) The Act also enlarged the functions of the Supreme Legislative Council. It

could discuss annual financial statement under certain conditions. It could address

questions to the Government on matters of public policy. But no question could be

asked without serving six days prior notice. The President could disallow any

question without assigning any reason.

(b) Changes in the Provincial Legislative Councils:

(1) Like the Supreme Legislative Council, the number of the ‘Additional

Member’s in the Provincial Legislative Council was also increased. In case of Madras

and Bombay Councils, besides the Advocate-General, the number was not to be less

than eight but not more than twenty, of whom, not less than one- half were to be non-

official members. The maximum number for Bengal Council was raised from twelve

to twenty and that of North-Western provinces and Oudh from nine to fifteen,’ of

whom not less than one-third were to be non- officials.

(2) The functions of the Provincial Legislative Councils were also enlarged.

They could interpret on matters of public interest and had right to discuss policies of

the Government of India. Questions could be asked in the Council after giving six

days’ prior notice. The President, however, had the power to disallow any question

without assigning reasons. On financial matters, the discussion in the Provincial

 

 

Legislative Council was limited only to those branches of revenue and expenditure

which were under the control of Provincial Government. No discussion on Central

finance was permitted. Similarly, the members were precluded from asking questions

on matters which were not within the control of local Government and on matters

which were subject of controversy between the local Government and the Governor

General-in-Council or the Secretary of State. No discussion could take place in

respect of an answer given to a question.

(3) The most striking feature of the Councils Act of 1892 was that it autj01sly

introduced elective element in the Councils. Though the framers of the Act

deliberately avoided the use of the word ‘election’ in the Act but the provisions of the

Act contained a scheme which required that all the members of the Legislative

Councils were not to be nominated by the Government. A certain number of them

were to be non-official members nominated by the Head of the Government from

amongst the panel recommend by the local bodies, such as, Municipal Committees,

District Boards, Chamber of Commerce, Zamindars and University Senates. The

Supreme Legislative Council was to accept the non-official members recommended

by the Provincial Council of Madras, Bombay. Bengal and North-West Province and

also one representative of the Chamber of Commerce at Calcutta. Thus the system of

indirect election was introduced by the Act of 1892 for the inclusion of non-official

members in the Legislative Councils of India. Considered from this standpoint, the

Act was a step forward as compared with the earlier Councils Act of 1861 which

introduced the system of nomination without any elective element in it.

The strength and the division of ‘Additional Members’ in the Supreme

Legislative Council and the Provincial Legislative Councils of Madras, Bengal and

North-West Province was as follows:—

Supreme Legislature 1. Six Official Members.

 

 

(Total strength of Additional Members

16)

2. Five elected Members including 4 non-

official members, one each from the

Provincial Council of Madras, Bombay,

Bengal and North-West Province and one

representative from Calcutta Chamber of

Commerce.

3. Five nominated non-official members

Provincial Legislation Councils (Totel

strength of Additional Member 20)

1. Nine Official members.

2. Six elected members including one

from

University, one from Corporation and

four from Municipalities and District

Boards.

3. Five nominated non-official members.

Critical Appreciation of the Indian Councils Act, 1892:

The Act of 1982 was essentially an amending measure. Though it did not

produce promising results, it was undoubtedly a step forward. It was an attempt to

improve the Legislative Councils constituted under the Indian Councils Act, 1861.

 

 

Lieutenant Hutchinson remarked that the Act of 1892 “was designed to obviate the

Indian dissatisfaction which the previous system had caused, without conceding

anything which might jeopardize, the Government’s autocracy.” The President of the

Calcutta Session of the Indian National Congress described the Act “as a most superb

steam engine in which the necessary material to generate steam was carefully

excluded substituting in its place coloured shams to look like it. The right of

interpellation and discussion of the Budget were granted but the living forces of

elective principle, which alone could properly work them, were not breathed into the

organization of the enlarged Council”

The main changes introduced by the Indian Councils Act, 1892 were a small

increase in the membership of the Councils and indirect adoption of the principle of

election under regulations. The members were granted the concession to discuss the

Budget and the privilege to ask questions. The Indian National Congress, in its 1892

session expressed dissatisfaction at the Indian Councils Act, 1892 for it did not

concede to the people the right of electing their own representatives to the Councils.

The Act only marked a cautious extension of the experiment which had been started

under the Indian Councils Act, 1861. The aims of both these Acts were the same, that

is to associate Indians with the administration so that their misconceptions about

British policy were removed and to provide an avenue for the Indian public opinion. It

was never the intention of the framers of the Act to introduce Parliamentary

institution in India as evident from the use of the term “Additional Members” in both

the Acts with reference to the expansion of the Supreme Legislative Council and the

Provincial Legislative Councils. The size of the Councils was deliberately kept small

so as not to turn them into “mini-Parliaments”. The remarkable contribution of the

Indian Councils Act, 1892 to the constitutional history of India was that it introduced

the system of “indirect election” in the Legislative Councils. It also emphasized the

need for giving recognition to the communal representation, though in a disguised

form.

 

 

The Act of 1892 provided an opportunity for Indians to participate in the

legislative functions of the Government and thus it was a pacifying measure initiated

by the British Government to appease the Indian masses. The Indians could sit with

the Viceroy and his Executive. Though they could not override the official majority of

the Councils, but they had the right to express their view freely and criticise the

administrative policies of the Government which were against the interests of the

people in general.

The Act also enlarged the functions of the Legislative Councils in financial

matters. Hitherto, Councils had no authority to discuss any proposal on financial

matter except one for the introduction of a new tax. But the Act of 1892 provided that

the Budget should be laid before the Council and the members could discuss and

criticise it. Thus as rightly remarked by Keith, “the Act permitted a critical

examination of the financial position”. This power proved very useful for the

Government as they could explain their financial policy to the Indians and remove

their misapprehensions, if any.

Defects of the Act of 1892:

The Indian Councils Act, 1892 though an advance upon the previous measure,

suffered from certain grave defects. The working of the Legislative Councils afforded

no satisfaction to the Government, much less to the people, of India. To the

Government’s utter disappointment the Councils did not turn out conservative as it

expected them to be. The Government, in a circular is,ued in 1907 pointed out that

“tle results of 1892 Act have not justified the expectations formed”. The Indian

public, on the other hand, was far more discontented to find that they gained nothing

substantial despite their continued efforts and agitations.

 

 

Indian leaders realized that the elective principle conferred by the Act was

restricted and unsatisfactory. Mr. C.E. Schwann commented in the British Parliament

that “no system of reform would be satisfactory which did not embody the elective

principle.” Gladstone, speaking from the opposition, observed in the House of

Commons that the Government should allow the principle of election to be followed

for the membership of the Indian Legislative Councils.

The increase in the number of the non-official members of the Councils was

also unsatisfactory and Schwann called it as “a very paltry and miserable addition.”

The non-official members had practically no voice in face of official majority.

Therefore, it was difficult for the non-official members to criticise the Government.

Again, the representation given to various groups and territories by the Act

was neither fair nor satisfactory, some classes were over represented while others had

no representation whatsoever. For example, in case of Bombay, out of six seats, two

were allotted for European merchants but nothing was given to Indian merchants.

Similarly, Satara and Punc had no representation in the Bombay Legislative Council

while Sindh had two seats in the Legislative Council of North-West Province. That

apart, the representation given to the general public in the Provinces was negligible

and deplorable. Thus only two out of eight seats were assigned for public

representation in the Bombay Legislative Council. The Province of Punjab was given

no representation in the Supreme Legislative Council. In short, the principle of

representation tacked uniformity and was hopelessly unfair and undesirable.

The powers of Legislative Council were also hedged in by several restrictions.

Thus, the member could not ask supplementary questions nor could they move any

resolution. They could not even question the executive without serving a six day’s

notice. The President could disallow any question without giving reasons for doing so.

 

 

Despite these shortcomings, the changes introduced by the Act gave some

satisfaction to the politically conscious Indians and made a beginning in the direction

of giving to the Councils the form of parliamentary institutions though the

Government of India and Britain disclaimed it. It paved a way for future legislative

reforms in the country. Summoning up the position Cowell remarked, “in effect, the

Legislatures retained, as they were intended to, their original character of advisory

councils to the Executive Government in matters of legislation, namely, the Executive

Government remaining as before, the sole controlling authority in legislation the

Government continued to possess the character of the ‘Monarch in Durbar’ willing to

lend attention to the views and opinions expressed by representative members of the

outside public.”

The Act thus fell short of Indian expectations as a result of which the Indian

National Congress intensified its agitation and reiterated its demand for more

concessions and reforms in the Legislative Councils functioning in the country. It

must, however, be noted that the Act marks the beginning of the system of election

which eventually paveç way to the evolution of the parliamentary system of

Government in India.

 

 

 

 

CHAPTER X

MORLEY-MINTO REFORMS, 1909

The Councils Act, 1892 did not satisfy the aspirations of the people in geniT

and the extreme wing 6f the Congress in prtitiIF Theors füiti6ñs and constitution f

Thé egirtáffvé Cdncils was far below the expectations of Indian political leaders. The

principle of election was one of their major demands which was not conceded to them

by Act of 1892. The number of non-official members in the Councils was negligible

and inadequate. There were too many restrictions on the functioning of the Councils.

The members could not veto the budget nor could they ask supplementary questions.

They could not even move resolutions. Thus the Legislative Councils constituted

under the Indian Councils Act, 1892 was nothing more than mere debating societies

having no influence to determine the decisions of the Government. This was a cause

of great dissatisfaction which accelerated the political agitation in India. The years

that followed were of “great turmoil and unrest” in the history of India. It was during

1892-1909 that the Indian National Congress was split into two camps, the extremists’

and the moderates. This British Government in order to stem the tide of extremism

and revolution, devised the po1icy of rallymg the moderates and muslims and

mitiated rermsofthe Cunifspularly known as Morley-Minto Reforms.

The Background:

The political unrest gathered momentum due to certain unpleasant

developments in India and abroad. Lord Curzon, in his zeal for efficiency, initiated

 

 

certain measures which resulted into provincial inequalities and financial burden on

the Government. His bureaucratic policies widened the gap between the rulers and the

ruled. He overhauled the entire administrative machinery of the government in the

name of efficiency and imported men directly from England to fill high posts. This

caused great resentment among the educated Indians. The partition of Bengal effected

on October 16, 1905 ostensibly for reasons of administrative convenience and

efficiency proved “a subtle attack upon growing solidarity of Bengal nationalism” and

was vehemently opposed throughout the country. Particularly, the Bengaiis

denounced it as a direct attack on their history, tradition and language.

During 1892-1909 a series of unpopular Acts were passed and enforced by the

British Government which aroused a storm of opposition in India. For instance, the

Age of Consent Act, 1891 which raised the age of consent from 10 to 12 years, was

resented by the orthodox people throughout the country though it was called a

measure of reform by the British Government.

The Calcutta Corporation Act, 1899 reduced the size of the Corporation from

75 to 50 members with a view to giving a definite majority to British element. This

measure was resented by the people and 28 Indian members of the Corporation

resigned in protest. Similarly, the Universities Act, 1904 was passed “to Europeanize

the Senates, and Syndicates of the Universities and to turn them into completely

Government Universities.”

The Official Secrets Act, 1904 which extended the provisions of the Indian

Official Secrets Act, 1889 to those disclosure of secrets relating to the civil affairs and

newspaper criticisms making them punishable under section 153-A of the Indian

Penal Code aroused suspicion in the minds of Indians about British designs.

 

 

The reforms introduced in the Indian Army by Lord Kitchner who was the

Commander-in-Chief in India during 1902-1909 also led to dissatisfaction among the

Indian soldiers. The scheme for the unification and reorganization of Indian Army

was submitted by Lord Kitchner to the Government of India in November, 1903 but it

could not be actually implemented till 1908. As early as 1893 certain changes were

effected in the Indian Army with a view to ensuring efficiency. The offices of the

Commanders-in-Chief of Madras and Bombay Armies were abolished by the Madras

and Bombay Armies Acts, 1893, and whole Army in India was placed under a single

Commander-in-Chief. In 1908, the Indian Army consisted of two parts, namely, the

Northern Army with its Headquarters at Murree and the Southern Army with

headquarters at Pune. Each of these parts was headed by a General Officer who was

responsible for command, inspection and training. But both these Armies were

directly subordinated to the Army Headquarters for Administrative purposes. A staff

College was started at Quetta for training Army personnel. As a result of this

reerganization of the Army; there was a considerable increase in the military

expenditure while the position of Indians in the Army remained unchanged. The

British troops performed the functions of an occupation army rather than of a defence

force and they were mainly used for internal security and not so much for protection

of Indian frontiers. This partisan spirit on the part of the British Government alienated

the susceptibilities of masses and injured the feelings of Indians working in the Army.

The happenings outside India also provided new stimulus to the Indian

national movement. Abyssinia defeated Italy in 1896 and Japan defeated Russia in

1905. Both these events dispelled the false belief in the invincibility of the European

superiority and inspired Indians to follow the example. They wire greatly impressed

by the partiotic adventure of Japan in fighting out her freedom and liberating herself

from the foreign yoke. The European wave of liberalism had already exerted its

influence on the Indian national leaders who were struggling hard for liberation of the

country from British domination.

 

 

The humiliating treatment meted out to Indians in South Africa during the first

decade of twentieth century was yet another cause of unrest in India. The Indians had

been expelled from the Orange River Colony and many restrictions were imposed on

them. They were ill-treated in Figi, Natal, Kenya and Cape Colony and the Asiatic

Registration Act, 1907 touched the climax of the humiJiating treatment Consequently,

Mahatma Gandhi launched Styagraha,’ and the struggle lasted for years which

seriously undermined the economic and civic life of Indians.

The Indian leaders were also unhappy with the policy pursued by Lord Curzon

of frontiers and towards Afghanistan and Tibet. Indian Troops weve despatched to

China and South Africa to expand the British Imperialism. Indians resented this

measute.

Among the other causes of national rising during 1892-1909 were anti-

national policies pursued by the Government in the quest of efficiency, the economic

depression, changes of Indian currency and exchange favouring Britain, natural

calamities and above all the arrogant and insolent behaviour of Britishers and Anglo-

Indians towards Indians and anti-Indian propaganda by the Anglo-Indian press. These

developments cumulatively led to anti-British campaign in India.

The failure of the British Government to combat the situation arising out of

the natural calamities in India during closing decade of nineteenth century also

contributed to the anti-British compaign. The famine of 1896-97 ended into

catastrophic results this was followed by outbreak of plague in the Presidency of

Bombay in which millions of persons died. Failure of rain in 1899 again resulted into

a severe draught and famine in 1899-1900 which affected a much larger number of

people than the previous one. The measure initiated by the Government and the

methods of enforcing them did not satisfy the Indian masses and people attributed

their suffering to British misrule.

 

 

The cumulative effect of these unhappy developments in the country during

1892—1909 was that it provided a fillip to the cause of national movement in India

and extremists launched a violent crusade against the British rule. The freedom of

press and platform also contributed to the political awakening in India. Important

leaders like Lokmanya Tilak, Bipin Paul and Lala Lajpat Rai led the popular

movement in Maharashtra, Bengal and Punjab and Northern India respectively.

From the foregoing account it is evident that the spirit of nationalism was born

out of the disgust and resentment of the people due to atrocities and the policy of

high-handedness adopted by Lord Curzon during 1899-1905. Even the moderates in

the Indian National Congress shared this view. Mr. Gokhle in his Presidential address

at the Benaras Session of the Indian National Congress in 1905 made it clear that a

solution to the problems was the attainment of self- government in India by an

increase in the proportion of the number of elected members of the Supreme Council

to the extent of fifty per cent of its total membership; appointment of three Indians to

the Secretary of State’s Council, creation of Advisory Boards in districts, and reforms

in the working of the Indian Judiciary. Mr. Gokhle reiterated these demands of the

Congress in the Supreme Council during the Budget debated in 1906. He personally

met Mr. Morley, the Secretary of State and emphasized the need of substantial

concessions to Indians. Dadabhai Naoroji amplified the demand of self- government

in 1906’ at Calcutta Session of the Indian National Congress. He pleaded the ‘Swaraj’

or self-government was the only remedy to end the chaos. According to Dr. Keith

‘swaraj’ to moderates meant parliamentary self- Government, to the extremists the

independence, to English sympathisers the self-government of colonial type.

Lord Curzon resigned his office due to serious differences in his Executive

Council over a constitutional issue, namely, the position of Commander-in- Chief in

the system of Government in the country. Lord Kitchner, who was the Commander-

 

 

in-Chief wanted that he should also be the War-Minister but Lord Curzon did not

agree to this proposal. The Government of Britain wanted to favour Lord Kitchner. A

compromise was, however, proposed by the Secretary of State who suggested that

besides the CommanderjnChjef there will be a member of Supply who will act as a

second Adviser to the Government of India on Military Affairs and he will look after

the technical matters of military supplies. The compromise was accepted by the

Viceroy but when the question of appointment of Member of Supply came, the

Secretary of State rejected Viceroy’s nominee, General Barrow being appointed to

that post and appointed a more technically qualified person instead. Consequently,

Lord Curzon tendered his resignation on August 12, 1905 telegraphically which was

accepted and Lord Minto came to India as a Governor General in November 1905.

The Indian Councils Act, 1909:

While conditions in Indian were taking a fateful turn, the liberals who believed more

in freedom and autonomy than in discipline and efficiency came in power in England.

John Morley, a staunch advocate of reforms and concessions became the new

Secretary of States in December 1905. He firmly believed that some constitutional

reforms were immediately needed to suppress the rising tide of nationalism and anti-

British feelings in India. He, therefore, took up this matter with the Viceroy Mr.

Minto who after a good deal of correspondence suggested that the official initiative

for moderate reforms should come from the Government of India. In consequence,

Lord Minto appointed a Committee of his Executive Council with Sir A.T. Arundal as

Chairman in August 1906. The terms of reference of the Committee included further

expansion of the Supreme Legislative Council and Provincial Legislative Councils

prolongation of the Budget debate and power to move amendments, inclusion of an

Indian member in the Governor General’s Executive Council and creation of a

Council of Princes or their representation in the Supreme Legislative Council.

The Arundal Committee Report:

 

 

The Arundal Committee submitted its report in October 1906. The Governor

General in Council discussed the proposals and sent them to the Secretary of State in

March 1907. Mr. Morley immediately consulted his Council and returned them to the

Government of India for reference to the local Governments to invite their opinion. It

took a period of one year to know the views of the local Governments and the public.

At last the Secretary of State drew up final proposals which received approval of the

British Cabinet in February 1909. Thereupon, a short bill incorporating these

proposals was introduced in the House of Lordc which became the Indian Councils

Act of 1909 on May 15. The Act, however, came into operation from January 1, 1910.

The Indian Councils Act, 1909, like the preceding Act of 1892 was an

amending Act. While it was being enacted, Morley categorically stated that the Act

did not aim at establishing a parliamentary system of Government in India directly or

indirectly. He made it clear that this scheme of reforms was a “well-guarded

expansion of principles that were recognized in 1861.”

Main Features of the Indian Councils Act, 1909:

The Indian Councils Act, 1909 otherwise known as Morley-Monto Reforms,

constufs a landmark in the constitution history of India The Act was definitely a step

forward in the establishment of provincial autonomy and self-government in India at a

latter date. It introduced some significant changes in the administrative set-up of the

country. The enlargement of legislatures both at the Centre and the Provinces, the

expansion of the Executive Councils, the introduction of the principle of election side

by side with that of nomination and the appointment of Indians to the India Council

and Viceroy’s Executive Council, were some of the outstanding features of the

reforms introduced by the Act. Minto-Morley reforms are also significant for

 

 

introducing separate nd communal electorates alongwith narrow franchise and

indirect elections The main provisions of the Act may be analyzed under the

following heads:

1. The Enlargement in the size of the Supreme Legislative Council.—The

Indian Councils Act, 1909 greatly increased the strength of the Supreme Legislative

Council. The number of “Additional Members which was not more than sixteen under

the Act of 1892 was now raised to sixty. The total strength of the Supreme Council

was thus fixed at sixty-nine including the Governor- General, six ordinary members

of his Council, the Commander-in-Chief and the Governor of the Province where the

meeting took place. The break up of the total membership of the Council was as

follows:—

 

 

The thirteen elected non-official members from general electorate consisted of eight

members sent by Bengal, Madras, Bombay and United Provinces two each, and five

by the Legislative Councils of Punjab, Bihar, Assam, Central Provinces and Burma,

one each.

The six elected non-officials from the class, electorates consisted

members from Landlord’s constituencies of Bengal, Bombay, Madras, United

Provinces, Central Provinces and Bthar Orissa, one each.

The two elected non-officials from the Special Electorates were

representatives from Presidency Corporations, Chamber of Commerce and trade

interests.

The Muslim electorate consisted of six Muslim members including two from

Bengal and one each from Bombay, Madras, Bihar-Orrisa and United Provinces.

Thus the Additional Members of the Supreme Councils, instead of being all

nominated by the Governor General as provided in the Indian Councils Acts of 1861

and 1892 were to include members some nominated and some elected in accordance

with the Regulations under the Act of 1909.

The Governor General-inCouncjl subject to the approval of the Secretary of

State was empowered to make Regulations as to the conditions under which and the

maimer in which persons residents in India might be nominated or elected to the

Supreme or Local Legislative Councils and the qualifications for the elected and

nominated members. Regulations so made could not be altered or amended by the

Supreme or Local Legislative Councils.

 

 

2. Enlargement in the size of the Provincial Legislative Council.__Like the

Supreme Legislative Council, the strength of the Provincial Legislatures was also

increased. The number of ‘Additional Members’ in the Provincial Legis1atures

Councils of Bengal, Madras, Bombay, United Provinces and Bihar Orissa was raised

to fifty, while those of Punjab, Burma and Assam and Central Provinces to thirty.

Each Council was to consist of both official and Ofl-official members The former

were further classified into ex-officio and nominated officials while the latter into

nominated and elected members. In addition to the number fixed under the

Regulations, the Governor or the Lieutenant Gov was empowered to appoint one or

two experts to their respective Councils when legislation relating to some expert

advice was under Consideration. The break-up of the memberships of the various

Provincial Legisij Councils is summarised below:

Province

Ex-

officio

Nominated

Members

Elected

Members

Expert

Members

Total

strength of

membership

Bombay

Madras

Bombay

5

5

5

20 (not more

than

16 officials)

21 (not more

than

16 officials)

21 (not more

28

21

21

2

2

2

55

49

49

 

 

United

Provinces

Bihar-

Orissa

Punjab

Burma

Assam

Central

Provinces

1

4

1

1

1

1

than

15 officials)

26 (not more

than

20 officials)

19 (not more

than

15 officials)

16 (not more

than

12 officials)

14 (not more

than

6 officials)

13 (not more

than

9 officials)

21

21

8

1

11

7

2

1

2

2

1

1

50

45

27

18

26

26

 

 

17 (not more

than

10 officials)

The Regulation fixed the number of the elected members for each Provincial

Legislative Council, for instance, for Bengal it was 28 while for Madras, Bombay,

United Provinces and Bihar-Orissa, it was 21 each and for Burma, it was only one.

These elected members were returned by different categories such as General

electorates, Class electorates and Special electorates. The object was to give

representation to all possible categories of persons residing in the Province.

3. Introduction of the system of indirect Election.— The Indian Councils Act, 1909

introduced the principle of election in the Supreme and the Provincial Legislative

Councils. This was undoubtedly an outstanding feature of the Act. As already stated,

twenty-seven out of sixty-nine members of the Central Legislative Council were

elected from different electorates. Similarly the Provincial Council were also to have

a fixed number of elected members as was determined by the Regulations. Thus the

elective principle which was hitherto cautiously and deliberately avoided was now

conceded to Indians by the Act of 1909.

The system of election introduced by the Morley-Minto reforms wa5,

however, indirect instead of being direct. The people elected the members for their

local bodies like municipalities, District Boards, etc. These local bodies in turn

elected the members for the Provincial Legislative Councils. The members so elected

to the Provincial Councils, further chose the members for the Supreme Legislative

Councils. Thus the election to the Supremt Legislative Council was by a double

indirect method and people had no direci contract with these members

 

 

4. Separate and Special Electorate.— Another important feature of the Indian

Councils Act, 1909 was the introduction of separate and special electorates for

Providing representation to certain classes and communities with a view to

safeguarding their interests. Thus, twentySeyen elected members of the Supreme

Legislative Council consisted of Six members of special landlord constituencies, six

of separate Muslim Constituencies two of special electorates and thirteen of general

electorates. Likewise, the elected members of the Provincial Legislares were returned

from different groups of constituencies called the general class and the special

constiencies

5. Qualification and Disqualifjj0 for the Membership and narrow Franchjse—

The franchise, as provided by the Act of 1909 was extremely narrow and limited. The

number of voters was disappointingly small. In some cases the number of voters in a

Constituency did not exceed nine or ten. Women were completely barred from

Voting. The qualification for the voters for Supreme Legislative Council were rigid.

Only the landlords with specified income or minimum land revenue payment of Rs.

10,000 or more, or those with high titles or honorary offices were conferred Voting

right. The qualification fixed for Voting in case of Provincial Councils were also rigid

and comparatively restricted.

Besides the aforesaid restrictions, certain general qualificai for candidates

contesting election were also prescribed by the Regulations Persons who were (a) not

British subjects; (b) minors and below the age of twentyfive; (c) adjudged to be of

unsound mind; (d) bankrupt; (e) sentenced by a criminal court for an offence

punishable with imprisonment for a term exceeding six months’ or to transportation;

(f) debarred from legal practise; (g) dismissed from Government servjceand (h) of

doubtful antecedents, were not eligible to contest election. The candidates Contesting

 

 

from the class Constituencies were requir to Possess some special qualificati0 in

addition to the general qua1 ificatjons

6. Retention of the principle of nomination side by side with that of

election. — Though the princioal of election was introduced by the Indian Councils

At, 1909 the system of nomination was not altogether abandoned. Certain members

were still appointed to the Supreme Legislative Council as well as the Provincial

Legislatures by nomination. No special qualifications were, however, laid for the

nomination of non-official members. In case of nominated official members some

were to be ex officio members like the Head of the Government and Members of the

Executive Council and some were to be nominated by the Head28 of the Government.

7. Appointment of Indians to India Council and Viceroy’s Executive

Council.—The Councils Act of 1909 provided for the first time the appointment of

Indians to India Council and the Governor General’s Executive Council. Accordingly,

Mr. K.C. Gupta, a Hindu civilian and Syed Hussain Bilgrami, the principal Adviser of

the Nizam of Hyderabad, were admitted to the Indian Council. Lord Sinha, the

Advocate-General of Bengal was appointed by the Secretary of State to the Governor-

General’s Council as a Law-Member of the Government. The Muslims led a

deputation to the Secretary of State and requested for the appointment of a Muslim

member to the Governor-General’s Councils but Morley did not accept their request.

The appointment of Indians to the Executive Council was undoubtedly a significant

development in the constitutional history of India.

8. Enlargement of Provincial Executives.—Under the Act, the number of

members of the Executive Councils of Bengal, Madras, and Bombay was increased

from two to four, or whom atleast two were to be the persons who had been in the

service of the Crown for atleast ten years.3° The Governor Generalin-Council was

 

 

also empowered to constitute an Executive Councils for Lieutenant Governor’s

Province.

9. Expansion of the functions of the Councils.—The Act of 1909 did not

make any alteration in the powers of the Councils. It simply expanded their functions.

The functions of the Supreme Legislative Council and the local Legislative Councils

were mainly enlarged in three aspects; discussion of the annual financial budget,

discussion on any matter of general public interest, and asking of questions. The

Councils could however, not be allowed to discuss political and military affairs. The

resolutions on matters of general public could be discussed in the Supreme Legislative

Council but ordinarily fifteen days notice was required for moving such resolutions

which were to be in a prescribed form.

An Appraisal of Morley Minto Reforms:

The reforms introduced by Morley-Minto through the Indian Council’s Act,

1909 were welcomed by the moderates who were dominating the Indian national

Congress at the time. Expressing their gratefuiness to the Government for the reforms

proposed in the Act of 1909, Surendranath Baneqee in the Madras Session of the

Congress of 1908 observed, “the reforms were the crowning triumph of the

constitutional agitation.” In his view the rights of asking supplementary questions and

moving of resolutions were most Valued concessions. Gokhle said that reforms

introduced by Morley-Mmto had conferred an opportunity to Indians for a responsible

association with the admmistration. According to Kidwai, the proposals made a

headway towards parliamentary government. Muslims were satisfied with the reforms

as almost all their demands had been accepted and incorporated in the Act of 1909.

They were particularly happy with two principles embodied in the Reforms, namely,

that there was always to be a standing official majority in the Supreme Legislative

Council and that the different classes and interests of muslim community were given

ample representation in the Legislative Councils. )

 

 

Shortcomings of the Act:

Despite this appreciation, the reforms introduced by the Indian Councils Act,

1909 were strongly denounced by quite a large number of critics. P.E. Roberts

described them “only a half way house” while Muzumdar dubbed them as “mere

moonshine”. The critics pointed out that the reforms had given the people “the

shadow rather than substance” The Reforms contained in the Act of 1909 suffered

from many serious defects which may be sunimaris

foilows:-

(1) The Morley-Mint0 Reforms attempted to divide the people of India into

water-tight compartments much against their interests of solidarity and unity. The

reforms were politically motivated and devised on the principle of ‘divide and rule’.

As Roberts rightly pointed out, “the principle of class representation created

differences among different sections of the community and made the fusion of their

interests impossible” The representation given to various classes of minorities like

Muslim landlords and mill owners forsaked all the principles of justice and fairness

and encouraged sectional interests to the detriment of national unity.

(2) The communal and separate electorates created by the Act of 1909 Proved

disastrous for India. It was Opposed to history and political life of the country. The

demands of the communities for separate electorates became more and more pressing

in subsequent years. Some based their claim on backwardness, Some on their

advanced conditions and some on their minority strength in a particular Province.

Similarly, the Reforms introduced in 1909 allowed separate communal representation

of Muslims but ten years later, similar concessions were extended on other minority

communities34 in India. The dreadful consequence of these separate electorates was

 

 

partition of India in 1947 which ended into massacre of thousands of people leading

to utter chaos and sufferings.

(3) Minto-Morley reforms established a system of indirect or rather a doubly

indirect election. The rent paying citizens were to first elect their representatives in

the municipal committees who in turn were to act as voters for those who contested

for Provincial Legislatures. The representatives in the Provincial Legislatures were

then to elect members of the Supreme Legislative Council. Thus, there existed no

direct relation between the citizens and the members of the Supreme Legislative

Council. In consequence, the representatives elected to the Legislative Councils felt

no sense of responsibility to those whom they represented.

(4) The reforms embodied in the Act of 1909 narrowed down the right of

franchise to such an extent that only a few privileged persons could enjoy the voting

right. The Legislatures at the centre as well as the Provinces thus lacked true

representative character.

(5) That apart, the creation of strong official majority in the Supreme

Legislative Council against the non-officials made the Reforms unpopular. Thus the

reform almost negatived the idea of introducing non-officials in the Supreme

Legislative Council as the latter had no voice in the decision of the Government.

Even in the Provincial Legislative Councils where there existed non- official

majority the position was in no way better. The nominated non- officials members

often sided the Government, thus the elected members were always reduced to a

minority. Moreover, the non-official thajority in the Provincial Legislatures did not

matter much because the powers of those Councils were very limited and the Heads of

the Government had the power to veto the measure. The position was well explained

 

 

by Lord Sinha who in an interview in 1917 observed, “the Minto-Morley Reforms

though a distinct advance gave Indians in the Legislative Council only influence and

not power.

(6) The provisions of the Act of 1909 enabled the Government to tighten its

hold over the official members by imposing restrictions that they could neither ask

any questions nor move any resolution. They could also not intervene in debate or

raise points of order without Government’s approval. Summarising their position

K.V. Puniah aptly remarked that “their main function was to vote, to vote with the

Government and to vote against the non-official opposition.”

(7) Lastly, the Reforms introduced by Morley-Minto through the Indian

Councils Act, 1909 failed to establish a reasonable government in India. The power of

the Legislative Council to ask questions to the Executive were strictly limited. They

were nothing more than requests for information. The President could disallow any

question. The true power, observes Dr. Zacharjas, “remained safely in British hands.”

Dr. Zacharias while summing up his criticism of the Reforms of 1909

observed, “the essence of these Reforms lay in conceding what at once was evacuated

of all meaning. Thus the elective principle of democracy was adopted: yet at the same

time anti-democratic communal representation was added. The official majority was

done away with, but the elected members remained in a minority. The membership

was considerably enlarged but an emphatic disclaimer was issued simultaneously

clarifying that the new Council in no way meant the introduction of a parliamentary

system.”

In a nutshell, the reforms introduced changes of degrees rather than of kind.

The result was that people of India soon realized that the Act was an attempt of

 

 

British rulers to make unjust and humiliating distinction between Muslim and non-

Muslim subjects of His Majesty in the matter of electorates, franchise and

qualification of candidates. There was a general distrust against educated classes

running through the Regulations. Thus, the Indian people, on the whole remained

unsatisfied with the Morley-Minto Reforms of 1909.

The scheme of Reforms of 1909 was notable atleast for one reason that it

provided opportunities for ventilating the public grievances on the “highest forum.”

The indian representatives could atleast appraise the British Government about their

views on matters of public interests. Moreover, the Reforms were also significant in

the sense that they furnished ample Opportunities for the Indian politicians and

officials to gain experience and training in the techniques of government and

administration. The greatest achievement of the scheme of Reforms introduced by the

Indian Councils Act of 1909 was thai it conceded the principle of election to the

Legislative Council which was hitherto being cautiously avoided by the British rulers.

The scheme also paved a way for future changes in the constitutional history of India.

But there being no place for the popular government in these reforms, they offered no

solution to the political problems with the result the nationalist leaders intensified

their anti-British campaign through the demand of “swaraj” or self-government.

During the first decade of the 18th century, the Indian national movement had

spread to various parts of the country. It had stirred the minds of educated classes.

This greatly helped in awakening the national consciousness of the Indian youth to

rise against the British mis-rule. Swadeshi and Swaraj became the battle-cries of the

new Hindu nationalism and the Indian press launched a vigorous national propaganda

against the British policy of creating hatred and communal enmity among different

communities of the Indian society. Though the British government resorted to

suppressive measures to contain the national movement, but persistent demand from

Indian leaders compelled them to concede to the Indian demand for further

decentralization of political institutions.

 

 

The Indian Decentralization Commission, in February 1909, had

recommended delegation of powers at the divisional and district levels of the

Provincial Governments; financial devolution; and further expansion in the sphere of

local self-government. These recommendations were made by the Commission to

remove partially, if not wholly, the defects of over- centralization of political power in

the official members of the Legislative Councils and to enable Indians greater

participation in the governance of the country. But unfortunately, the Government of

India took so long in considering these proposals that when they came up for

deliberation in 1915 it was realized that most of them had become obsolete and

outdated.

 

 

CHAPTER XI

MONTAGU-CHELMSFORD REFORMS

The Morley-Minto policy envisaged by the Indian Councils Act, 1909 failed to

satisfy the aspirations of the extremists who were persistently making a demand for

self-government. The moderates were also not very happy with the excessiVe’ iontrdI

of the Central Government over the local Governments. The separate representation

of Muslims caused resentment among the Indian leaders and a motion was proposed

in the Imperial Legislature on January 24, 1911 asking for the discontinuance of the

scheme. In consequence, the partition of Bengal was annulled. The attitude of Britain

in the Balkan Wars and the lining up of Turkey against the British in the War of 1914

 

 

had already weakened the loyalty of Muslims to the British Government. The

annulment of partition of Bengal further infuriated the Muslims against the British

bureaucracy and at the same time it led to extremists wing of the Congress to

conclude that they could extort more concessions from the British Government by

resorting to terrorism. All these factors brought pressure on the British Government to

abandon the policy of repression and concede to the Indian demand of responsible

government.

Background to the Government of India Act, 1919:

The policy of repression and reforms followed under the Morley-Minto

Reforms of 1909 generated a feeling of extreme bitterness among the Indian

nationalists and they started a revolutionary movement which gradually spread

throughout the country. The extremists like Lokmanya Tilak, Lala Lajpat Rai and

Bipin Chander Paul carried on vigorous propaganda against British bureaucracy.

Consequently, there were terrorist outrages in various parts of the country.2 Lord

Mirtto tried to suppress. the extremists and revolutionaries by resorting to enactment

of representative laws. He sought the sanction of the Secretary of State for India for

arrests and detentions on a large scale and even suggested promulgation of Martial

Law. But the Secretary of State Mr. Morley disagreed with Lord Minto and even

warned him against such repressive measures as they were likely to jeopardise the

British interests in India. He, however, reluctantly accepted Viceroy’s proposal for the

enactment of drastic press-laws.

The Press Act of 1910 was more stringent and comprehensive than the earlier

Newspapers (Incitement to Offences) Act, 1908. The Act widened the definition of

seditious publications so as to leave no scope for the expression of even the most

honest opinion. Moreover, it was the local Government and not the Courts which

were to adjudge as to what was seditious and what was not. Mr. Gokhile, strongly

opposed the Bill in the Supreme Legislative Council and warned the Government that

 

 

“force may afford temporary relief but it can never prove a permanent remedy.” The

Act was, however, passed and proved to be a terrible weapon in the hands of the

Executive and was so frequently used that it added to the long list of “indictments

against British rule.”

By this time, the Seditious, Meetings Act, 1907 was to expire in 1910.

Therefore, its life was further extended till March 31, 1911 with a view to providing

sufficient time to the new Governor General who was to succeed Lord Minto, to study

the situation and decide whether to continue the Act or to repeal it. Lord Hardinge, the

new Viceroy replaced the Act by the Seditious Meetings Act, 1911, which was

equally repressive like the previous one.

The incident of bomb-throwing on Lord Hardinge in December 1912,

eventually led to the enactment of Criminal Law (Amendment) Act, 1913 which

included “conspiracy” as an independent offence in the Indian Penal Code. The World

War I brought in its wake the Defence of India Act, 1915 which empowered the

Government to intern people without charge or trial. The Government took advantage

of this law and made arbitrary use of this power. It became apparent that the Defence

Act was not only a war measure but was essentially intended to repress political

movement and even to supersede the ordinary criminal law in some cases.

The developments and circumstances which preceded immediately before the

enactment of the Government of India Act, 1919, otherwise known as Montagu

Chelmsford Reforms, may be briefly summarised as follows:—

1. Failure of the Repressive Measures.— The repressive policy adopted by the

Government of India miserably failed to suppress the revolutionaries. On the contrary,

it encouraged the terrorists to resort to terrorism, riots and conspiracies as a result of

 

 

which the number of political murders and outrages increased considerably. The

revolutionaries organised themselves into several secret societies throughout the

country. The revolutionary movement gathered momentum outside India as well. The

Indian Home Rule Society was established by Shyamji Krishnavarma in 1905. This

society in its publications vehemently criticised the Government policies land

encouraged Indians to strengthen the Swaraj-movement. One of the staunch

supporters of this society was Vinayak Domodar Sawarkar, who was keen to intensify

revolutionary activities in India. He took initiative in supplying literature to freedom-

fighters in Maharashtra and arranged arms and ammunition for them from London.

The Muslim resentment against the annulment of partition of Bengal in 1911

also contributed to the spirit of revolt. They characterised this act of the Government

as a great concession granted to Hindus and gross injustice to the Muslims in India.

The declaration of war against Turkey led to Khi!afat Movement. Some Indian

students from Lahore left their college studies in February, 1915 and entered the tribal

territory beyond North-West Frontier to join the German and Turkish mission at

Kabul in an attempt to overthrow the Indian Government. The Muslim League in its

Session at Karachi in 1913, had already resolved to patch up its differences with the

Indian National Congress which paved the way for communal unity and common

action for the attainment of self-Government for India. The Indian National Congress

in its Madras Session in 1914 welcomed the attitude of Muslim League and

emphasised the need for united action.

2. The Congress-League Concord.— In 1915, Mr. Mohammad Au Jinnah, a

staunch nationalist at that time, took initiative of inviting Muslim League to hold its

annual Session at the same time and place as the Congress and both the organisations

synchronised their session at Bombay in December same year. The Congress and the

League resolved to co-operate in formulating a scheme of post war reforms and urge

upon the British Government to accept the same. They adopted a joint scheme of

constitutional reforms known as Congress- League Scheme or the Lucknow Pact,

 

 

1916, which, according to MontaguChelmsford Report was “the latest, most complete

and most authoritative presentation of the claims of the leading Indian political

organisations” and worthy of praise as a testimony to the growing force of national

feeling.5

3. Humiliating treatment to Indians in South Africa and other British

Colonies.—AnOther reason that aroused the feeling of indignation among Indians

against British regime was the humiliating treatment meted out to them in South

Africa, Canada and other British Colonies. The Asiatic Registration Act, popularly

known as the Black Act was passed by the Transaval Parliament in March 1907.

Another Act6 of the same year completely barred the entry of Indian newcomers in

Transaval. These humiliating measures forced Mahatma Gandhi to launch a

satyagraha campaign in South Africa. The treatment meted out to Satyagrahis in jail

was most inhuman and a number of them died of pneumonia and severe cold. Greatly

perturbed by the loss of Indian life in South Africa, Mr. Gokhle urged the Secretary of

State for India to visit South Africa and study the conditions on the spot.

While efforts were being made to repeal the Black Act and “the £ 3 tax law”,

another event again forced Indians in South Africa to agitate. Mr. Justice Searle of the

Cape Supreme Court in his judgment dated March 14, 1913 declared all marriages not

solemenised in the Christian fashion and not duly registered to be invalid. Mahatma

Gandhi requested the Union Government to exempt Indians from this law but to no

avail. Therefore, he organised a band of Sat yagrahis called ‘Army of Peace’ who

marched from New-Castle to the border of Transaval on 28 October, 1913. The

Satyagrah gathered momentum and the “whole Indian community in South Africa

rose like one man to combat the organised tyranny of the race-conscious arrogant

Europeans.” Large subscriptions were raised all over India to which rich and poor

contributed enthusiastically. Surprisingly, Lord Hardinge the Viceroy also supported

the Indian cause and demanded an impartial enquiry into the allegations of inhuman

treatment meted out to Satyagrahis. As a result of this a provisional agreement was

 

 

drawn up between General Smut and Mahatma Gandhi which eventually led to the

passage of the Indian Relief Act of 1914. The Act abolished the hated £ 3 poll-tax,

validated Indian marriages and recognised the ‘domicile certificate’ as the conclusive

evidence of the right of the holder to enter the Union. Similar efforts were made by

certain Indians from Canada who voiced the sufferings and grievances of Indians in

Canada. This created a political unrest in India.

4. Outbreak of World War 1.—The First World War which broke out in

1914, had a direct bearing on the constitutional history of India. It changed the course

of political events in the country and at the same time compelled the British

Government to survey the Indian problem from a ‘new angle of vision’. The great

majority of Indians including the Indian National Congress displayed splendid

devotion and loyalty to the British cause and naturally they expected due regard for

showing their solidarity with the British Empire in the vindication of public law and

protection of national rights.9 The Indians felt that the war was for the cause of liberty

and justice. The Indian Princes also favourably responded to the British call and

placed at the disposal of British Government all their resources. The Indian

subscription to war loans amounted to £ 7.5 crores. Thousands of Indian soldiers

suffered from muddle and misery while fighting for Britain in Mesopotamian

campaign and in Palestine and East Africa. In short, the exemplary service rendered

by India to the British Government during World War-I obliged the later to grant

some substantial concession to the Indians.

There was yet another effect of the World War-I which accelerated the cause

of constitutional reforms in India. The war had infused a new sense of self-esteem

among Indians and given new force and vitality to India’s demand for self

Government. The constant pronouncements of British and American statement that

the war for the cause of freedom, democracy and human rights made Indian masses

self-conscious and brought about a political awakening in the country. The Indians,

therefore, claimed equality of treatment and clamOured for constitutional

 

 

concessions. Taking a realistic view of these developments, Lord Chelmsford who

succeeded Lord Hardinge in 1916, found no difficulty in holding that self-

Government was the goal of British rule in India.

5. The Home Rule Movement.— The Irish rebellion had an exciting effect on

Indian politics and Mrs. Annie Besant started a Home Rule Movement” in India. She

formally established a Home Rule League in a meeting at Madras on September 1,

1916. The object of the Home Rule Movement was two-fold. Firstly, it aimed at

effecting the unity of moderates and the extremists—the two wings of the Congress

which had separated in 1907. Secondly, it aimed at launching an intensive propaganda

for Home Rule of Self-Government throughout India. Mrs. Besant carried. on her

Home Rule Movement in close cooperation with Lokmanya Tilak who had been

released from jail in 1914. Tilak established the Hom.e Rule League for Bombay

region in September, 1916 with headquarters at Pune.

As an immediate reaction of Mrs. Annie Besant’s Home Rule Movement,

nineteen elected members of the Supreme Council in October 1916, submitted a

memorandum to the British Government in India containing proposals for postWar

reforms. They expressed that they were no more content with merely the good and

efficient Government but wanted a ‘responsible Government’. The memorandum

further suggested that in the scheme of future reforms at least half the members of the

Central and Provincial Executive Councils should be Indians, who were to be selected

by the elected members of the respective Legislative Councils at both levels. The

Supreme Legislative Councils should consist of not less than 150 members whereas

the membership of the Provincial Legislative Councils should be 100 in case of a

major Province and 60 to 75 in the cases of minor Provinces. The system of direct

election should be followed and jurisdiction of the Central and Provincial Legislatures

should be clearly defined. The post of Secretary of State for India should be

abolished. The memorandum contained that the provincial autonomy should be

granted to the Provinces and India must be equated with the Dominion countries.

 

 

6. Political unrest due to Annie Besant’s internment.—The Government of

Madras and Bombay were greatly purturbed by the vigorous propaganda launched

under the Home Rule Movement. The Defence of India Act, 1915 and Press Act,

1910 were extensively used by these Governments to restrain Mrs. Besant, Mr. Tilak

and other revolutionary activists. Provoked by the activities of the revolutionaries,

Lord Pentland, the Governor of Madras observed in the K4adras Legislative Council

that “all thoughts of early grant of responsible self-Government should be entirely out

of mind.”12 He also ordered the internment of Mrs. Besant along with her two

colleagues.’3 This created great storm and the whole of the atmosphere became very

tense. The All-India Congress Committee condemned the action of the Madras

Government and made a strong representation to the Viceroy for the acceptance of

India’s demand for self-Government or Swaraj and immediate release of the interned

leaders. Viceroy turned a deaf ear to the representation made by the Indian National

Congress and, therefore, it was decided to resort to passive resistance movement

which Mahatma Gandhi had successfully experimented in South Africa. But the

Government soon realised the implications of these political events and released Mrs.

Annie Besant and her two associates. Mrs. Besant was later elected as the President of

the Indian National Congress for the Session of 1917.

The August Declaration of 1917:

“Political agitation in India”, observed G.N. Singh, “reached the highest point

in July and August, 1917”. The publication of the Report of Messopotamian

Commission,’4 condemned the Government of India and the Secretary of State for

conducting the Messopotamian campaign in a deplorable way.’5 Lord Hardinge

tactfully, succeeded in shifting a great part of the blame on British War Office. In a

speech during the debate on the Report of the Messopotamian Commission in the

House of Commons Mr. Montagu, an exUnder Secretary of State for India blamed the

Government of India for its rigidity and characterised it as “too unrealistic to be of

any use for the modern purposes.”

 

 

The statement made by Montagu in British Parliament furnished a soothing

ground for the Indian Nationalist Press to voice the demand for immediate change in

the Government of India. In the meantime the war situation grew worse and the

people of India readily offered to help but warned definite promise of szvaraj in near

future. Consequently, realising the gravity of the situation Mr. Montagu was

appointed as Secretary of State for India in place of Chamberlain who had resigned.

The Government announced removal of the ban which excluded Indians from the

Commissioned ranks in the Army. On August 20, 1917 Mr. Montagu made the

historic declaration in the House of Commons which said that “the policy of His

Majesty’s Government with which the Government of India is in complete accord, is

that of increasing association of Indians in every branch of administration and the

gradual development of self-governing institutions with a view to progressive

realisation of the responsible Government in India as an integral, part of the British

Empire…… He further announced that His Majesty’s Government had decided to

send him to India almost immediately for the purposes of consultation and enquiry.

An analysis of the Declaration, of August 20, 1917 indicates that it broadly

contained four assurances:—

(i) The self-Government within the Indian Empire was the ultimate goal

of British Rule in India.

(ii) The self-Government was not to be given forthwith but was to be given

in stages.

(iii) The successive stages were to be determined by the progress made by

the Indians.

(iv) The British Parliament and the Government of India alone were to

judge t he time and measure for each advance.

 

 

Constitution significance of the August Declaration (1917):

The Declaration of August 20, 1917 was a great landmark in the constitutional

history of India. It was the first momentous announcement of British policy towards

India. Even since the transfer of power from Company to the Crown, the Queen’s

“Proclamation” of 1858 had remained the basis of the British policy for a period of

sixty years, when it gave place to this historic declaration of Montagu in 1917. This

declaration served a basis of British policy till the Independence of India.

The declaration is also significant for it declared officially for the first time

that India would be treated like other dominions of the British Commonwealth and it

laid down in unambiguous terms that self-Government was the ultimate goal of

British policy in India. The declaration thus constituted the first milestone towards the

grant of responsible Government to the people of India.

Montagu’s Declaration of August, 1917 was indeed a revolutionary step in the

sense that it promised responsible Government to India—a concession which was

categorically denied by Mr. Morley in 1908. Mr. Morley had emphatically declared

that he had no intention of introducing a Parliamentary form of Government in India.

Thus it would be seen that the course of events during nine years (1908—17) had

taken such a turn that the British rulers were obliged to change their policy towards

India.

That apart, the August Declaration of 1917, furnished a basis for the Indian

National Congress to intensify its activities towards the achievement of Swaraj. Once

the British Government had committed itself to a formula and laid down its ultimate

policy, it could not go back from its commitments. Thus the Declaration indirectly

helped to inculcate a sense of confidence and hope among the nationalists that their

 

 

struggle for freedom had borne fruits. Encouraged by this achievement, they

intensified their freedom movement.

This does not, however, mean that the Declaration was free from defects. Its

greatest demerit was that there was no specific mention as to the time and final stage

when responsible Government would be granted to th people of India. The machinery

devised under the Declaration, observes Coupland, “was hardly calculated to pave the

way to liberty.” The fact that Indian progress was to be judged jointly by the British

Parliament and Government of India, was inconsistent with the spirit of liberty.

Moreover, the announcement provided no time limit for each subsequent progress

which rendered the Declaration vague and unsatisfactory. That apart, the Declaration

had a negative effect from the point of view of national unity. The moderates took it

as a great achievement while the extremists regarded it as a useless document. The

Muslims noticed in it at once a victory of Hindu nationalism and a direct threat to

muslim community. Despite, these shortcomings, Declaration of August 20, 1917

marked, “the end of one epoch and the beginning of a new one”18 in the process of

constitutional advancement in India.

The Montagu-Chelmsford Proposals:

Immediately after the August Declaration of 1917 was made in the House of

Commons, the Government of India in Simla and a Committee of the India Office in

London, devoted themselves to the preliminary consideration of the problem

involved. As already expressed in the Declaration of August 1917, Mr. Montagu, the

Secretary of State for India accompanied by a strong delegation, reached Bombay on

November 10, 1917. The object of the Montagu-Mission was to make an enquiry into

the political conditions in India, to hear the views of the people and of the

Government officials and to formulate proposals in consultation with the Viceroy.

Montagu conferred with the Viceroy, the Government of India and the Governors of

Provinces and several Indians representing variety of people and interest. He earnestly

 

 

desired that the whole scheme of reforms should come from the Indians themselves.

Mr. Montagu had to strain hard to make the Viceroy’s Executive Council, the Heads

of the Provincial Governments, and the European Members of the Services agreeable

to his scheme of reforms. He had to make large concessions to recalcitrant elements.

The result was that the scheme which finally emerged possessed none of that

grandeur which Mr. Montagu had intended it to

possess.

The second and the more important task before Montagu Mission was to keep

the Indian nationalists and revolutionaries engaged in deliberations and negotiations

with the Secretary of State and his associates so that their attention be diverted from

agitations and revolutionary activities and they were induced to help the British

Government in the prosecution of war which had reached a most critical state during

the year 1917. Montagu himself claimed that even if he failed to evolve an agreed

scheme he had done something for which the Cabinet at Home ought to be grateful to

him. He wrote, “I have kept India quiet for six months at a critical period of the war; I

have set the politicians thinking of nothing else but my mission.”23 While finishing

his Report on April 21, 1918, Mr. Montagu observed that the main principle involved

in his scheme of Reforms was that “instead of founding the Indian Government on the

confidence of the people of England, we are to gradually found it on the confidence of

the people of India.”

The Report on Indian Constitutional Reforms known as the Montagu

Chelmsford Report, was published on July 8, 1918. The authors of the Report

admitted in their preliminary survey that the machinery of Government in India as it

existed did not meet the needs of the time. It worked slowly. There was a pressing

demand from the educated Indians to reform the working of the Government and this

suggestion was supported by the official opinion also. The report contained four

 

 

governing principles which were to be embodied in the new constitutional structure

for the country. They were:

(1) As far as possible there should be complete popular control in local

bodies and they should be free from outside influences.

(2) The steps for the progressive realization of responsible Government

should begin from the Provinces. To make a beginning, the Provinces

should be given some measure of responsibility in legislative,

administrative and financial matters of the Government. However, the

Provinces were to be given complete responsibility as soon as the

conditions permitted.

(3) The Government of India was to remain wholly responsible to

Parliament. The Indian Legislative Council was to be enlarged and

made more representative in character.

(4) The control of the Parliament and the Secretary of State over the

Government of India and Provincial Government was to be relaxed

gradually in proportion to the constitutional changes introduced in the

light of this scheme of Reforms.

The Montagu-Chelmsford Report merely enunciated the principles on

questions relating to the functions of Central and Provincial Governments, franchise,

and the relations between the Secretary of State in Council, the Government of India

and the Provincial Governments. To complete the work, three Committees were

appointed as suggested in the Report. These were: (1) the Franchise Committee; (2)

 

 

the Functions Committee; and (3) the Committee on the Reorganisation of the India

Office.

The Franthise Committee:

The Franchise Committee under the presidentship of Lord South Boroughs

was to advise the Government on the franchise and constituencies in each Province

and was to devise a scheme of direct elections as for as possible. It was also to

consider as to how the territorial representation would give adequate representation to

various interests and minorities in the Provincial Legislative Councils. It was also to

suggest on the strength of the Provincial Councils and the number of nominated

official members to be included in each of the Provincial Council.

The Functions Committee:

The Functions Committee under the Chairmanship of Mr. Richard Feetham26

was to advise about the functions that should be transferred to the Provinces and the

extent and nature of control to be retained by the Government of India for the

discharge of its responsibilities. It was also to recommend the departments of the

administration which could be transferred to the Ministers.

The Committee for Reorganisation of India Office:

The Committee for the Reorganisation of India Office was appointed in

February 1918 under the Presidentship of Lord Crewe. It suggested that Council of

India be abolished and the Secretary of State should be assisted by an Advisory Board

to which he might refer such matters as he deemed necessary. The Board was to

consist of not more than twelve members, one-third being persons domiciled in India

and selected from a panel of names submitted by the non-official members of the

Indian Legislature. The Committee also recommended the appointment of a High

 

 

Commissioner for India who was to exercise agency functions on behalf of the

Government of India in London.

THE GOVERNMENT OF INDIA ACT, 1919

The Franchise and the Functions Committees presented their Reports to the

Government of India on March 10, 1919. To give effect to the proposed constitutional

changes a Bill was introduced in House of Commons on May 29, 1919 by Mr.

Montagu. It was referred to a Joint Select Committee of both Houses ,f parliament for

consideration. The Joint Select Committee28 examined about 5eventy witness both

official and non-official, Indians and British. The Committee proposed the inclusion

of August, 1917 Declaration as preamble to the proposed Government of India Bill,

1919. The Joint Parliamentary Committee drew up its final report which was accepted

by House of Commons and the Bill was amended accordingly. The Bill was passed by

House of Commons on December 5, 1919 and by House of Lords on December 18,

1919. It received Royal assent on December 23, 1919. Before it could come into

force, it had to be supplemented by Rules. The Rules so framed under the Act were

published by the Government of India on July 20, 1920, and the Government of India

Act, 1919 finally came into force with effect from January 1, 1921.

Main provisions of the Government of India Act, 1919:

The Government of India Act, 1919 is a great landmark in the constitutional

history of India. It marks the beginning of a responsible Government in the country. It

also brought about many remarkable changes in the administrative set up of the Indian

Government and introduced some minor changes in the Government at Home, i.e.,

India Council in Britain. The provincial autonomy, the system of dyarchy, the

bicameral system of legislature at Centre, the enlargement of Provincial Legislatures,

the consolidation of• separate electorates, the special powers of the Governors and

 

 

Governor-General, the division of subjects under two lists, and the creation of a

Chamber of Princess were some of the notable features related to the Provincial as

well as the Central Government in India. The reorganisation of India Council, the

creation of the office of the High Commissioner for India and relaxation in the control

of the Secretary of State were some other important changes effected by the Act in the

Home Government controlling Indian administration from Whitehall.

Preamble:

As stated earlier the Government of India Act, 1919 in its preamble contained

the whole part of the Declaration made by His Majesty’s Government in the British

Parliament in August, 1917. Sir Tej i3hadur Sapru analysed it as follows:—

(i) British India was to remain an integral part of the British Empire;

(ii) Responsible Government in India was the objective of the declared

policy of Parliament;

(iii) The responsible Government was capable of progressive realisation

only; and

(iv) In order to achieve responsible Government it was necessary to

provide for two things, namely, the increasing association of Indians in

every branch of administration and gradual development of self-

governing institutions.

The statement of policy and methods of its attainment as contained in the

preamble were emphasised in the Instrument of Instructions to the Governor General

 

 

who was to be vigilant in implementing these policies at Centre and in the local

governments of all Presidencies and Provinces.

I. Changes introduced in the Provincial Governments:

Before the introduction of Reforms envisaged under the Government of India

Act, 1919, British India com,rised fifteen Provinces of which three were headed by

Governors-in-Council, four by Lieutenant-Governors and eight by Chief

Commissioners. By the Act of 1919, the Provinces of U.P., Punjab, Bihar and Orissa,

Central Provinces and Assam were also to be governed by Governor- in-Council thus

raising the total number of Governor’s Provinces to eight. The Act, however, did not

raise Burma to the status of Governor’s Province. The Province of North-West

Frontier was made a Governor’s Province in 1931.

(1) Division of subjects between Centre and Provinces.—The central theme

of Montford Reforms was to make a beginning to the Provincial autonomy in local

governments in India. This implied freedom of control from above and also in a sense,

transfer of power to the people. To achieve this object, the subjects of administration

and sources of income were divided and grouped in two lists called to (i) Central

subjects, and (ii) the Provincial subjects. The subject which concerned whole of India

or more than one Province and necessitated a uniform policy were enumerated in the

Central list and included defence, foreign and political relations, public debt, customs,

post and telegraphs, currency, communication (i.e., railways, aircraft and inland

waterways), All India Services, civil and criminal law and procedures, etc. The

subjects such as, public health, sanitation, education, public works, irrigation, forests,

agriculture, excise, veterinary department, fisheries and co-operative societies, famine

relief, land revenue, police and prisons, etc. were included in the Provincial list to be

dealt with by the local governments. It is, however, to be noted that the division of

functions was not so definite as in a federation. In case of doubt whether a particular

matter lay within the competence of the Central or Provincial Government, the

 

 

decision of the Governor General was final. All matters not specially declared to be

provincial subjects were to be considered as central subjects. This, is other words,

meant that under this scheme the residuary powers were vested in the Central

Government.

The Government of India Act, 1919 also introduced division in the sources of

revenue. However, with a view to meeting the deficit of the Central Government, a

system of provincial contribution was devised which was to cease as soon as the

Government of India was able to develop its own resources to meet the entire

expenditure. The division of sources of revenue was carried out in accordance with

the recommendations of Meston Committee.33 Land revenue and income from

excise, irrigation, forests, stamps and registration fees etc. was assigned to the

Provinces while the income from customs, income-tax, railways, posts and telegraphs,

salt and opium was to go to the Centre. However, 25% of the income-tax collections

in the Provinces were to be appropriated by each of the Provinces.

The Devolution Rules framed under the Act of 1919 also provided for

legislative devolution and gave power to the Provincial Legislatures to, make laws for

the good government of the Province. The previous sanction of the Governor General

was no longer necessary to legislate on any provincial subject except in certain

exceptional cases.

The statutory rules framed under the Act provided that the Governor General

could exercise control and issue directions only for the purposes of safeguarding the

administration of central subjects, to decide questions arising between two Provinces

if they failed to settle them mutually for preserving the imperial interests.

 

 

(2) Dyarchy in Provinces.—The Montagu-Chelmsford Report emphasised that

steps towards the progressive realisation of responsible Government should first be

taken in Provinces. They were, however convinced that ‘complete responsibility was

not possible at that time and it would lead to complete breakdown. Therefore, the

scheme envisaged under the Government of India Act, 1919 contemplated the

transference of responsibility for certain functions of the Government to the elected

representatives of the people in the Provinces while reserving control of the Governor

over others. The system so introduced was known as ‘dyarchy’. The provincial

subjects were divided into two classes, viz, the ‘Transferred’ and the ‘Reserved’

subjects. Among the Transferred’ subjects were included the local self-government,

education, medical administration, sanitation and public health, public works,

agriculture, development of industries, veterinary department, fisheries and co-

operative societies. The ‘Reserved’ subjects included finance, land revenue, famine

relief, justice, police, prison, criminal law and procedure and the control of

newspapers and print media, irrigation, mines, electricity, public services, etc. The

responsibility for the proper administration of the ‘Reserved’ subjects lay with the

Governor-in-Council of the Province while the ‘Transferred’ subjects were controlled

by the Governor acting with his Minister.36 It would thus be evident that with the

introduction the system of dyarchy in eight Governor’s Provinces the executive

government of each of these Provinces consisted of two parts, one comprising the

Governor and his Executive Council and the other consisting of the Governor acting

through his Ministers.

(3) The Provincial Executive.—With the introduction of ‘Dyarchy’ under the

Government of India Act, 1919 the executive government in the Province was split

into two distinct parts. One comprising the Governor-in-Council, while the other

consisting of the Governor and his Ministers, the one almost foreign the other wholly

Indian, the one in charge of reserved subjects the other of transferred subjects, the one

responsible to the Government of India the other to the Provincial Legislature. The

Governor of the Province played a pivotal role in the new system. He was appointed

for a term of five years by His Majesty. The members of the Executive Council of the

 

 

Governor were also appointed by His Majesty for five years’ and on salaries fixed by

the Act and were charged upon the revenue of the Province. The number of executive

councillors was not to exceed four, of whom one must be person who had served the

Crown in India for at least twelve years. In practice, there were four members in the

Executive Council in each of the Provinces of Bengal, Madras and Bombay with two

Indian members while in other Provinces there were two Executive Councillors, one

of whom was an Indian. All members of the Executive Council were cx officio

members of the Legislative Council but they were not responsible to the latter.

The Governor and his Council were jointly responsible for administration of

the Reserved subjects and were responsible to the Governor General-in-Council and

the Secretary of State for India and ultimately to the British Parliament. The Governor

normally presided over the meetings and in case of equality of votes he was allowed a

casting vote. The responsibility of safety, tranquillity and safeguarding the interests of

the Province lay with the Governor and he could on his own authority and

responsibility adopt, suspend or reject any measure by an order in writing.

Ministerial Responsibility.The Act of 1919 made a genuine effort to provide a

responsible Government in Provinces by appointing Ministers who were to guide the

Governor for the administration of transferred subjects. The Governor was to act on

the advice of his Ministers so far decisions relating to transferred subjects were

concerned unless he had sufficient cause to dissent from their advice, in which case he

could take action Otherwise than in accordance with that advice. There was no

statutory limit to the number of ministers. The Montagu-Chelmsford Report proposed

that every Governor should have one or more ministers but the Joint Parliamentary

Committee recommended that there should be at least two ministers in each

Governor’s Province. In actual practice there were three ministers in each of the

Presidencies, the United Provinces and Punjab, and two in each of the others four

provinces. The ministers were to be the elected members of the Provincial Legislative

Council. If they were not so elected at the time of their appointment, they were

 

 

required to get themselves elected within a period of six months. They were appointed

by the Governor and held office during his pleasure. In case of emergency arising out

of the resignation of a minister the other minister was asked to add the subject to his

charge, or when this could not be possible, the Governor himself could take charge of

these subjects temporarily.

It is significant to note that Montford Reforms made no provision for the joint

or cabinet meetings of ministers. The Instrument of Instructions issued to the

Governor did not require the Governor of the Province to consult the ministers

collectively or to convene the cabinet meetings. The ministers were appointed

separateiy by the Governor and were to be responsible individually to the Legislature.

It was left to the discretion of the Governor to choose his ministers from one single

political party or from different parties. He could even be a non-party gentleman.

Thus although the Joint parliamentary Committee had expected ministers “to act in

concert together” but in practice they acted individually.

Briefly speaking, the Government of each Province was divided into two parts

and the sphere of each was clearly demarcated. In case of doubt as to whether a

particular matter belonged to the reserved or transferred department, the Governor’s

decision was final. However, the subject of “finance” was kept common to both the

parts equally. The Governor was “to make an allocation of revenue and balance

between reserved and the transferred subject.” The proposal for borrowing or

additional taxation were to be considered jointly but the decision on them were be

taken by each part separately.

Council Secretaries.—The Governor of the Province was empowered to appoint in his

discretion, Council Secretaries from among the non-official members of the Council.

They held office during his pleasure and performed the duties of assisting members of

the Executive and the Ministers in their work.

 

 

(4) Provincial Legislature.—With the introduction of responsible

Government in each of the eight major Provinces the question of reforming the

Legislatures of these Provinces assumed great importance. Montford Report did not

favour the proposal to establish second chambers in the Provinces but instead stressed

on the need to enlarge the size, of the Legislative Council with a substantial elected

majority with such communal and special representation as may be demed necessary.

The members were to be elected by direct franchise and the size of the Legislative

Council was to depend on its population. Thus, unicameral Legislature called the

‘Legislative Council’ was set up in each of the eight Provinces under the Act of 1919.

Similar Legislative Council was formed in Burma in 1923 when it was raised to a

Governor’s Province. The Act also provided that at least 70 per cent43 members of a

Council should be elected members and not more than 20 percent should be official

members. The Montagu-Chelmsford Report did not contemplate abolition of the

‘official element’ in the Legislative Councils. The official experience of the these

members was greatly advantageous to steady discussion in the Council. ‘The

Members of the Executive Council were ex-officio members of the Legislative

Council. The official members were, however, disqualified for contesting election. If

a non-official member accepted office in the service of the Crown in India, his seat in

the Council was deemed to have fallen vacant. The Legislative Council also consisted

of non-official members nominated by the Governor. This was with a view to

redressing inequalities in giving representation to different classes or communities

which might otherwise go unrepresented.

(i) Composition.—The Montford Report did not prescribe any exact

composition of the Legislative Councils but left it to be considered by the

Franchise Committee which visited India under the Presidentship of Lord

Southborough. The actual composition of Legislative Councils of the nine

Governor’s Provinces was as follows:—

 

 

Name of

province

Statutory

Minimum

Elected Nominated

officials

plus

Executive

Councillors

Nominated

non-officials

Actual

Total

Madras

Bombay

Bengal

United

Provinces

Punjab

Bihar and

Orissa

Central

Provinces

Assam

Burma

118

111

125

118

83

98

70

53

92

98

86

114

100

71

76

55

39

80

7+4

15+4

12+4

15+2

13+2

13+2

8+2

5+2

14+2

23

9

10

6

8

12

8

7

7

132

114

140

123

94

103

73

53

103

(ii) Franchise.-Montford Report had recommended direct system of election

for Provincial Legislatures. Therefore, the Provincial Councils set up under the Act of

1919 consisted of members who were directly elected by the people. The normal

qualifications for the voter was residence within the constituency and payment of a

small amount by way of land-revenue, rent or local rates in rural areas and municipal

rates in urban areas. All persons who paid income-tax and all retired, pensioners or

 

 

discharged officers or men of regular forces had right to vote. Women were initially

denied franchise but the Provincial Councils were empowered to remove this

disqualification. Those who were not British subjects or were below 21 years of age

or of unsound mind were not eligible for voting.

(iii) Communal Represefltatioll.- As regards the communal representation

Montagu-Chelmsford Report did not favour it because it was considered injurious to

the development of responsible Government. Nevertheless, this concession had to be

extended to Muslims on account of the earlier commitments. Similar representation

was allowed to Sikhs in Punjab. The Franchise Committee further extended this

concession to Indian Christians, Europeans and Anglo-Indian. The Joint

Parliamentary Committee recommended reservation of seats in the Legislative

Council to Marathas in Bombay and non Brahmins in Madras. In addition to

communal electorates, the Act also provided for special representation to different

groups and interests such as, landlords, zamindars, universities, chambers of

commerce, plantation and mining interests and mill owner’s associations.

(iv) Duration of the Legislative Council.—The normal duration of the

Legislative Council was three years. It could be dissolved even earlier by the

Governor. He could also extend the life of the Legislative Council for a period not

exceeding one year. The Act also provided for the appointment of a President and

Deputy President for the legislative Council. Hitherto, the Governor himself used to

preside but under the Act he ceased to be a member of the Council though his right of

addressing the Council was still recognised. To begin with, the President of the

Council was to be appointed by the Governor for a term of four years but thereafter

the Council was to elect its own President

from among its members. The Deputy President was, however elected by the

members of the Council and was not a Governor’s appointee.

 

 

(v) Legislative Powers of the Provincial Legislative Courlcil.- The

Provincial Legislative Council was given the power to make laws “for the peace and

good Government” of the Province. But this power was restricted in several ways.

Firstly, the devolution rules required the sanction of the Governor-General fl several

cases. Secondly, the Governor was given the power of passing legislation Ofl reserved

subjects despite its rejection by the Legislative Council. Thirdly, the Governor was

empowered to stop, at any stage, the consideration of a bill on the ground that it

effected peace and tranquillity of the Province. Lastly, the Governor as well as the

Governor- General could veto the Bills passed by the Legislative Council or could

return the measure to the Council for reconsideration. In addition, the Crown had the

power of disallowing any enactment of Provincial Legislature.

(vi) Reserve powers of the Governor.—The Government of India Act, 1919

provided that where a Provincial Legislative Council refused leave to introduce a Bill

on a reserved subject or failed to pass it in a form recommended by the Governor, the

latter could certify that the passage of the Bill was “essential to the discharge of his

responsibility for the subject” and thereupon the Bill will become an Act of the

Legislature. But an authentic copy of the Act so passed by the Governor on his sole

responsibility was to be sent to the Governor-General who was to reserve it for

signification of His Majesty.

(vii) Financial Powers of the Legislative Council.—The Act provided that

the estimated annual expenditure and revenue of the Province should be laid in form

of statement before the Council each year and that the proposals of the Local

Government for the appropriation of Provincial revenues were to be submitted to the

vote of the. Council in the form of demands for grants. The Council might assent or

refuse to assent to a demand or reduce the amount. The financial control exercised by

the Council was subject to following limitations:—

 

 

(1) The Governor had the reserve power in relation to expenditure on

reserved subjects as he had the right to secure supplies for those

services for which he was responsible to Parliament.

(2) If the demand rejected by the Legislative Council related to a

transferred subject then the money could not lawfully be paid unless

the case fell within proviso (2) of Section 72 (D) (2) under which the

Governor was empowered to authorise necessary expenditure for the

safety and tranquillity of the Province or for carrying out the work of

any Department in cases of emergency.

(3) No proposal for the appropriation of revenues or other moneys for any

purpose could be made except on recommendation of the Governor

communicated to the Council.

(4) Proposal relating to the following heads of expenditure were not

required to be submitted to the Legislative Council:—

(i) contributions payable by the local Government to the Governor

General- in-Council;

(ii) interests and sinking fund charges on loans;

(iii) expenditure of which the amount was prescribed by or under any law;

(iv) salaries and pensions of persons appointed with the approval of His

Majesty or by Secretary of State in Council; and

(v) salaries of Judges of the High Court of the Province and of the

Advocate-General.

 

 

The members of the Legislative Council had the right to ask questions, move

resolutions, make motions of adjournment and no-confidence against the Minister,

and to introduced Bills subjects to the Standing Rules of the Council which imposed

certain restrictions in the interest of the proper conduct and for the safety and

tranquillity of the Province.

The changes introduced by the Government of India Act, 1919 in the

provincial sphere constituted the first step towards the establishment of responsible

Government. The Ac itself provided for the appointment of a statutory Commission

ten years after by the two Houses of Parliament and His Majesty, “to enquire into the

working of the system of Government, the growth of education and the development

of representative institutions in British India, and matters connected therewith”. The

Commission was also to report as to whether the principle of responsible Government

needed, to be extended, modified or restricted and whether second chambers were

desirable in the Provinces.49

II. Changes introduced in the Central Government:

Montagu-ChelmsfOrd Report did not propose any change in the character of

the Government at the Centre and wanted the Government of India to remain wholly

responsible to the British Parliament. Nevertheless, it was deemed necessary to

enlarge the Indian Legislative Council and make it more responsible. Therefore, the

Government of India Act, 1919 reconstituted the Central Legislature. There were to

be two chambers of the Central Legislature in future, namely, the Council of State and

the Indian Legislative Assembly.

(1) The Executive Council.—The Constitution of Viceroy’s Executive

Council was slightly modified. The maximum limit imposed on the membership of

the Executive Council was removed5’ and pleaders of the Indian High Courts with ten

 

 

year’s standing practise were eligible for membership52 of the Executive Council.

The Act provided for the appointment of Council Secretaries53 from among the

members of the Indian Legislative Assembly. Three members of the Executive

Council were to possess the qualification of ten year’s experience in the service of the

Crown in India. Three Indians were appointed to the Executive Council on the

recommendation of the Joint Parliamentary Committee.

(2) The Governor General-in-Council.— The Central Government

comprised the Governor-General in Council with eight members including the

Governor General and the Commander-in-Chief who looked after the Army

Department. The remaining six members were placed in charge of Home Finance,

Legislature, Commerce including Railways, Education, Health, and Lands and

Industry and Labour Departments. Each Executive Councillor was to be a member of

one or the other House of the Central Legislature. With the election or nomination of

a member to the Governor-General’s Council, his seat in the House to which he

belonged was to be deemed to have fallen vacant.

The Governor General presided over the meetings of the Executive Council. In

his absence the Executive Member whom the Governor General appointed as Vice-

President was to preside in the meetings. The Presiding Officer and one member

(other than Commander-in-Chief) formed the quorum and exercised functions of the

Government of India. The decisions in the Executive Council were taken by majority

votes. In case of equality f votes the Governor General was empowered to veto the

majority decision if in/his opinion safety or tranquility of British India or any part

thereof was aff,cted. In actual practice only more important matters were decided at

the meetings of the Executive Council and matters of routine were disposed of by the

Member in charge of the Department concerned.

 

 

Functions of the Government of India.—The Government of India was to

administer the central subjects. In addition, it had two more functions to perform

which were as follows:

(i) The Government of India was entrusted with the power of superintendence,

direction and control over Provincial Government in respect of all reserved subjects.

In regard to transferred subjects, the supervision and interference of the Government

of India was required either to safeguard the administration of central subjects or to

decide disuted questions between two Provinces or to safeguard Civil Services in

India.5

(ii) The Government of India was also responsible for administration of all

subjects within the area of British India not included within the boundaries of the nine

Governor’s Provnces. The areas were governed by the Chief Commissioner and the

local Executives were merely agencies of the Government of India. The revenue and

expenditure relating to these Commissionaries were part of the Central budget.

The Governor General held personal charge of the relations of Government of

India with Indian States and in this capacity he was called by Viceroy which signified

his position as a representative of His Majesty. Pointing out the distinction between

the Governor General and the Viceroy, Lord Curzon observed, “where the Governor

General is referred to as the statutory Head of the Government of India, he is

designated as Governor General; where he is regarded as the representative of the

Sovereign, he is spoken of as Viceroy.” Thus, it would be seen that the Viceroy was a

link between British India and the Indian Princes. He paid ceremonial visits to the

Indian States and presided at the annual session of the Chamber of Princes.

 

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The Governor General was not a member of either House but he could address

any House. The franchise qualifications for Assembly seats were also very high. Thus

in Madras only those who paid income-tax or land revenue not less than Rs. 50/- per

annum or a municipal tax not less than Rs. 20/- per annum were eligible to vote. The

allocation of seats in the Legislative Assembly among the Provinces was not on the

basis of population but upon the importance of each Province. Thus, the Province of

Bombay because of its commercial’ importance was given equal representation with

Madras though its populatioll was not even half than that of Madras.61 Similarly,

Punjab with two-third of population of Bihar and Orissa was given the same number

of seats because of the former’s military importance.

The normal duration of Legislative Assembly was three years. The Governor

General could dissolve the Assembly even earlier. But in such a case he was to hold

next session within not more than six months or with the sanction of Secretary of

State for India, not more than nine months from the date of dissolution. He could also

adjourn or prorogue the Assembly. The first President of the Assembly was

nominated by the Governor General for four years’ after which he was to be elected

by the Assembly itself.

Power of the Central Legislature.—The Indian Legislature was empowered to make

laws for all persons, courts, places and things within British India, for all subjects of

His Majesty and the servants of the Company within all other parts of India. But this

power was subject to certain restrictions.

The Act of 1919 further provided that previous sanction of the Governor

General was required for the introduction of any measure affecting the:—

(i) relation of the Government with Indian Princes;

(ii) public debt or imposing arty charge on the revenues of India;

 

 

(iii) religion or religious rites and usages of any class of British subjects;

(iv) discipline or maintenance of His Majesty’s military, naval or Air

Forces;

(v) any measure which repeals or amends any Act of Legislature or

ordinance made by the Governor General.

All Bills to become law had to pass through both the Houses and receive the

assent of the Governor General. The Governor General could withhold the assent or

send back the Bill for reconsideration by the Legislature or reserve it for signification

of His Majesty’s pleasure. If either House refused to introduce a Bill so certified or

failed to pass it in a form recommended by the Governor General, he could certify

that the passing of that Bill was essential for the safety, tranquillity or interest of

British India or any part thereof. The Act so passed was, however, required to be laid

before both the Houses of British Parliament and was not to take effect unless it

received His Majesty’s assent. In case of emergency, the Governor General could

direct that the Act should come into operation forthwith, subject to the disallowance

by His Majesty.

Financial rowers.—me Government of India Act, 1919 provided that the

Budget or the cstimated annual expenditure and revenue of the Government of India

was to be laid in the form of a statement before both the Houses each year and was to

be submitted to vote of the Legislative Assembly in the form of demands forgrants.

The control exercised by the Assembly relating to finance was subject to many

limitations. Thus, the Legislative Assembly could neither vote nor even discuss on the

following items without the Governor General’s sanction:

(i) Interest and sinking fund charges on loans;

 

 

(ii) salaries and pensions of persons appointed by His Majesty or Secretary

of State in Council;

(iii) salaries of Chief Commissioners;

(iv) expenditure classified by the Governor General-in-Council as

ecclesiastical, political or defence; and

(v) expenditure the amount of which was prescribed by or under any law.

The Governor General was to be the sole judge to decide whether any of the

items of expenditure fell within any of the items specified above. He could also

authorise any expenditure whether voted by the Legislature or not, if he considered it

necessary for the safety, tranquillity or interest of British India.

The Montague Chelmsford Reforms did not purpose a responsible government

at the Centre. Therefore, the Act of 1919 introduced responsive and not responsible

Government at the Centre. The Central Legislature exercised influence over the

Executive Government in three ways, namely, (i) through the medium of questions

and resolution; (ii) through the financial powers which the Legislative Assembly

possessed over votable items in the Budget; and (iii) through the Standing

Committees. The moving of resolution in the Legislature had been an effective device

for influencing the Government as it offered greater scope for discussion. The

Assembly made use of its financial powers to exercise effective control over the

expenditure of the Government.

The two Committees of the Legislative Assembly called the Standing Finance

Committee and the Committee on Public Accounts also exercised effective influence

on the Executive. The Standing Committee consisted of fourteen members elected by

 

 

the Assembly with the Finance Member as its Chairman. Its main function was to

scrutinize the proposals for new items of votable expenditure.

The Public Accounts Committee was to deal with auditing and appropriation

of accounts of the Government of India. It could deal with the ‘voted’ as well as ‘non-

voted’ items of expenditure. This Committee consisted of eleven members, of whom

eight were elected by the Legislative Assembly and three nominated by the Governor

General. The Finance Member was to be the ex officio Chairman of the Public

Accounts Committee.

Relation between the two Chambers of the Central Legislature.—A Bill in

order to become a law had to be passed by both the Houses. The Act of 1919 provided

that the differences between the two Houses on a particular Bill or issue could be

resolved by any of the three devices, namely, (i) by Joint Committee having an equal

number of members nominated by each House, or (ii) by a Joint Conference, or (iii)

by Joint Sitting convened by Governor General in his discretion.

III. The Indian States:

Recognising the imporfance of the native States, the Act proposed the

cOflStjtUtiOfl of a Chamber of Princes so that consultation with the Heads of these

States could be possible. The Chamber of Princes was set up at Delhi on February 8,

1921 by a Royal Proclamation. The inaugural ceremony was performed by the Duke

of Connaught in the Diwani-Am of Moghul Palace in Dethi on behalf of the King-

Emperor. The Chamber also called as ‘Narendra Mandal’ was to meet annually for

discussion on issues of common interest. The Chamber represented 108 ruling Princes

and twelve representatives of the ruling Chiefs. The Viceroy was its President. A

Standing Committee comprising four or five members of the Chamber of Princes

advised the political Department of the Government on questions referred to it.

 

 

Disputes between two States or a State and a local Government or the Government of

India were referred to for report by a Commission presided over by a Judge and

Consisting of the nominee of either side. If the Viceroy could not accept their finding,

he could refer it to the Secretary of State. Similarly, allegations and charges against a

ruler were to be entrusted to a Judge, two ruling Princes and two other persons. All

important States were placed in direct relations with the Viceroy instead of the local

Governments.

IV. Changes Introduced in the Indian Civil Services:

The Government of India Act, 1919 also contained provisions regularising the

position of the civil services in India. All existing rules relating to civil services were

retained but they could, however, be altered by the rules made in future. The power of

making rules, regarding the classifications of the civil services in India, methods of

recruitment and conditions of their services, pay and allowances, discipline and

conduct was vested with the Secretary of State in Council who could delegate his

power to the Governor General-in-Council or the local Governments. The Secretary

of State in Council could also authorise the Central or Provincial Legislatures to

regularise the public services subject to the condition that the rules so framed would

not be to the disadvantage of civil servants appointed before the commencement of

the Act of 1919. No civil Servant could be dismissed by an authority inferior to that

by which he was appointed and the Secretary of State could reinstate any dismissed

person. The Act of 1919 also authorised the establishment of a Public Service

Commission in India with not more than five members to hold office for five years

but with eligibility for reappointment and removable only by the Secretary of State in

Council Its functions extended to the recruitment and control of civil services. The

Secretary of State was to make rules to facilitate the entry of Indians to the Indian

Civil Service. Section 39 of the Act also provided that no office could be added or

taken off from the civil service list and no remuneration could be varied without

consultation by the Government concerned within the financial authority designated

 

 

in the rule and the Secretary of State could appoint an Auditor General with such

functions as assigned to him.

V. Changes in the Home Government:

The Reforms of 1919 introduced significant changes in the Home

Government. These changes mainly related to: (i) modification in India Council; (ii)

appointment of a High Commissioner for India; and (iii) relaxation of the control of

the Secretary of State.

(1) Modification in India Council.—The demand for the abolition of India

Council put forth by the Indian National Congress was rejected by the authors of

Montague Chelmsford Reforms and the Joint Parliament Committee. But the Act of

1919 modified the constitution of India-Council in many respects.

Thus, the Council henceforth was to consist of not less than eight and not

more

than twelve members. Of these, one-half were required to have not less than ten years,

service or residence in India at the time of appointment. Their term of office was also

reduced from seven to five years. The salary of the members was raised from £ 1000

to 1200 a year plus £600 for persons of Indian domicile in order to render it easier to

secure the services of well qualified Indians to serve in the Indian Council. The

meetings of the Council were henceforth to be held monthly and not weekly and wide

discretion was given to the Secretary of State in Council to prescribe matters affecting

the form of communications with India. The distinction between the secret, urgent and

ordinary communications to be exchanged between the Secretary of State and the

Government of India was done away with. The position of India Council was,

however, still recognised as clearly subordinate to the Secretary of State. Another

important constitutional change by the Government of India Act, 1919 was introduced

 

 

that the salary of the Secretary of State and his staff were henceforth to be paid out of

British Exchequer and not from the Indian revenue. The Act also provided that the

matters of purely Indian interest were to be decided by the Government of India in

consultation with legislature and in such matters the Secretary of State could intervene

only under exceptional circumstances.

(2) High Commissioner for India.—The Government of India Act, 1919

provided for the appointment of a High Commissioner for India, in U.K. who was to

perform agency functions as distinguished from political functions. The appointment,

powers and duties of the High Commissioner were to be determined by His majesty

by order in Council but he was to be directly under the Governor General-in-Council.

This introduced an important change in the functions of the Secretary of State for

India. Hitherto, the Secretary of State performed the commercial and agency functions

of the Government of India in United Kingdom in addition to his usual duties of

political administration of India. Thus, on behalf of the Government of India he could

make purchases in London to meet the requirements of Indian stores and machinery.

With the appointment of the High Commissioner, the commercial and ceremonial

functions of the Secretary of State were passed on to the High Commissioner. He was

also to protect the interests of Indian students studying in England. He was to be paid

out of the Indian revenue and his tenure of office lasted for five years.

(3) Relaxation of control of the Secretary of State.—The progressive

realisation of responsible Government in India essentially involved relaxation of the

Secretary of State’s control over the Indian affairs. The Government of India Act,

1919 reduced the powers of Secretary of State with regard to control over India to a

considerable extent. The powers with regard to Indian administration were not

generally delegated to the Governor General-in- Council. Prior to the Act of 1919, all

projects of legislation had to be referred to the Secretary of State before they were

introduced in either of the Central or Provincial legislatures. But after the

commencement of the Act only legislation relating to foreign relations, military

 

 

affairs, customs, currency and public debts, etc. were to be sent by the Central

Legislature to the Secretary of State for approval. Similarly, the Secretary of State’s

control in matters of provincial subjects was also relaxed and the rules made by him

with regard to such subject were required to be laid before both the Houses of

Parliament for approval. His Majesty in Council could annual the same. With a view

to removing the impression that India’s fiscal policy was dictated from Whitehall, the

Act of 1919 provided that the Secretary of State should, as far as possible, avoid

interference in the financial matters of India where the Government of India and its

Legislatures were in agreement. He could, however, intervene in the interest of the

safeguarding the International obligations of the Empire or any fiscal arrangements in

the Empire to which His Majesty’s Government was a party.

Critical Appreciation of the Reforms introduced by the Act of 1919:

The Reforms introduced by the Government of India Act of 1919 were not

appreciated by the Indian leaders. The people in general denounced them as a ‘poor

reward for Indian’s services’ while the Indian National Congress characterised them

as wholly ‘inadequate, unsatisfactory and disappointing’. The scheme of reforms did

not satisfy even the moderates who felt that their hopes were duped. The Reforms

suffered from many grave defects, some of them being due to the complex and

complicated system of dyarchy introduced in Provinces, the absence of responsible

Government in the Centre and consolidation of separate electorates.

(1) Failures of the system of Dyarchy:

The system of dyarchy introduced by the Act of 1919 in the Provinces was a

complex system having no logical basis and was rooted in compromise. The system

operated in a spirit of harmony, goodwill and co-operation between Legislature and

the Executive during the first three years after the commencement of the Act, but it

soon cracked down after 1924 being unsatisfactory and unworkable. The main factors

responsible for the failure of the system of Dyarchy were as follows:

 

 

(i) The division of provincial Government into two watertight compartments

as effected by the system was repugnant to the principle of efficient administration.

Every Government like an organism is a unity and, therefore, cannot be divided into

two parts separated from each other. It is well known that mutual cooperation and

organic unity are the two cardinal principles of a good and efficient government. The

two halves of the Government never cooperated together. The ministers were

responsible to the people while the members of the Executive Council belonged to

bureaucracy. There was constant clash between two as a result of which the work of

the Government badly suffered. The Governor more often than not, sided the

Executive Council because he himself belonged to that cadre.

(ii) The illogical and unscientific division of provincial subjects further added

to the inefficiency of administration. No minister was allowed complete control over

his department: Thus ‘education’ being a transferred subject was placed in charge of a

minister, but the European and Anglo-Indian education was kept, under the Reserved

subjects. The ‘agriculture’ was described as a transferred subject but irrigation,

famine relief and agricultural loans though closely connected with agriculture, were

classed as Reserved subjects. The anomaly created due to such a faulty division of

subjects has been explained by Sri Ky. Reddy an ex-Minister of Madras who

remarked, “I was a Minister for Development without forests. I was a Minister for

Agriculture minus Irrigation. As Minister of Agriculture, I had nothing to do with the

Madras Agriculturist Loans Act or the Madras Land Improvement Loans Act Famine

Relief of course could not be touched by the Minister of Agriculture.” The Minister

for Industries had not power over factories, electricity and water power, mines or

labour, all of which were Reserved subjects.

The faulty working of the system of dyarchy is well illustrated by C.Y

Chintamani, a Minister of U.P. He quoted an example that in 1921 an inquiry on

 

 

fragmentation of lands was started in the Department of Agriculture. When the Report

was submitted in 1922, it was felt that the question should have been dealt by the

Revenue Department and the case was transferred to that Department. In 1924, it was

decided that the case related to be decided by the Co-operative Department hence it

should be sent to that Department.

(iii) The entire dependence of the Ministers on Governor’s support made his

position very weak. The ministers were appointed by the Governor and could be

dismissed by him at his will. This placed ministers under an official tutelage and

domination of the Governor. The practice of ministers subsequently becoming the

“Executive Councillor”, according to Puniah “sank them to the position of glorified

Secretaries”. The minister was also responsible to the Legislature for the

administration of his Department and he could be turned out by the Legislature by a

vote of no confidence. Thus, the minister had to serve two masters at one and the

same time which made his position precarious. Moreover, the position of ministers

with regard to the administration of the Reserved subjects was highly deplorable.

They had absolutely no voice in determining the policy of the Government. Their

position, as observed by C.R. Das, was in no way better than the “silent spectators” of

the fight that was raging between the Indians and the British Government. Even in

matters relating to transferred subjects, the minister had no commanding voice.

Despite the Indian majority in the Provincial Legislatures the ministers had to depend

on the Governor and his official block to keep themselves in power.

(iv) The principle of communal and separate electorate which originated in

1909 and was carried further under the ‘system of dyarchy’ introduced by the

Government of India Act, 1919 did not yield happy results. In fact it divided the

Legislative Councils into small factional groups. The prominent and disciplined

groups in the Provincial Councils were those of Swarajists and the officials. The

swarajists, unfortunately, believed in the policy of obstruction and were bent upon

“wrecking the Legislatures from within.” They refused to co-operate with the

 

 

Government and always preferred to remain in opposition. This attitude of

indifference and non-cooperation on the part of swarajists enhanced the importance of

the nominated block which was another well organised group in the Legislative

Councils. This strengthened the position of the Government which always had at their

command the votes of official and nominated non-official members as also the votes

of Europeans, Anglo-Indians and landholders.

(v) The system introduced by Montague Chelmsford reforms avoided to

encourage the principle of joint responsibility among the ministers. Therefore, the

ministers never worked as a team. The Governor dealt with the ministers individually

and discouraged collective responsibility—a policy which caused “bickerings

between the ministers, lowered their prestige before public, weakened their position in

the Legislature and placed them entirely at the mercy of the Governor and his

nominated block.

(vi) The position of the ministers with regard to services was all the more

worse. The appointment, salary, suspension, dismissal and transfer of the members of

All-Indian Services was controlled by the Secretary of State for India. Therefore,

these persons bothered little for the minister-in-charge of the Department when they

were appointed in the “transferred” Department. These members of Services thought

that the ministers being new to their task, must take guidance from their advice and

experience while the latter believed that the members of the services being

subordinate to them must pay due obedience. The Governor often supported the

members of the civil services as against the ministers because he came of the same

stock. Thus nothing could be more irritating and humiliating for the dignity of a

minister than to see his subordinates taking an appeal against his decision to the

Governor and getting it reversed in no time. The ministers were so helpless that they

could not even fill an important vacancy under their control nor could they abolish

any superfluous post to a lower cadre.

 

 

(vii) The peculiar position of the Finance Department was also one of the

potential causes of the failure of the system of dyarchy in the Provinces. It was a

Department common to both—the Reserved and the transferred sides, but

unfortunately it was placed in charge of a member of the Executive who was bound to

favour the Reserved departments. The result was that the progress of the nation

building departments which were in charge of the ministers suffered for want of funds

and the ministers had to depend on the mercy of the Finance Secretary. As a member

of the civil services, the Finance Secretary cared little for the aspirations of Indians as

represented by the ministers and his greatest anxiety, according to Mr. C.Y.

Chintamani was “to see that his Reserved. departments got all money they required

before other departments got what they wanted.” At times, the Finance Secretary even

refused to examine the scheme forwarded by a minister on the ground that no money

was likely to be available for the same or deliberately delayed it till the end of the

financial year. This partisan attitude of the Finance Member was a great obstacle in

the progress of the departments in charge of ministers and the helpless ministers were

criticised by the public for lack of initiative and inaction. In short, the ministers faced

difficulties in getting their schemes approved by the Finance Member.

(viii) The natural calamities and the political atmosphere in the country at that

time were equally responsible for the failure of dyarchy. In 1920, the failure of

monsoons brought about catestrophic results. There was a scarcity of food-grains and

people suffered miserably. The Meston Award which required Provinces to make

substantial contribution to the Government of India irrespective of financial crisis,

further worsened the situation. Under these circumstances experiment with dyrchy in

Provinces, which largely depended on affluent finances was bound to fail. Besides

these natural calamities, the political climate of the country also contributed to the

failure of the system of Dyarchy in Provinces. The Jallianwalla Bagh tragedy76 the

Khilafat Movement and the operation of stringent Acts had caused distrust, discontent

 

 

and dissatisfaction among the Indians. They were, therefore, in no mood to accept any

Reforms coming from British quarters.

Briefly stated it can be said that Dyarchy introduced under the Government of

India Act, 1919 as a political experiment to meet the popular demand of responsible

Government in India and to train Indians in the art of self-government was a complete

failure. It was so unpopular that it was treated almost a term of abuse by the Indians.

Some authorities, however, commended the system of dyarchy as the best

suited machinery during the transitory period of the constitutional changes in India.

Thus, according to Thompson and Garratt, “the reforms were far from being a

complete failure” and the system worked smoothly for the first three years of the

working of the constitutional machinery under the Act of 1919. The process of

Indianisation of the Government was gradually taking shape. Similar views have been

expressed by P.E. Roberts who remarked. “Dyarchy was the best transitional

mechanism that appeared after a prolonged examination of alternatives.”

Other reasons for failure of dyarchy:

Besides the inherent defects in the system of Dyarchy, the Reforms introduced

by the Act of 1919 failed for certain other reasons also the more important among

them were:

(1) The powers of Governor-General under the Act of 1919, virtually

made him a constitutional dictator.—Though the reforms introduced under the Act

of 1919 added a second Chamber to the Central Legislature and increased the number

of its elected members, yet it failed to establish even partial responsible Government

at the Centre. The Central Legislature had no share in vital matters such as

contrQlling the Executive, formulating legislation and directing the finances. Almost

sixty percent of the budget was excluded from the vote of the Legislative Assembly

 

 

which constituted the lower House of the Central Legislature. Moreover, the

Governor General had wide discretionary powers in matters of finance and he could

restore any demand refused by the Central Legislature. In case of emergency, he was

the sole judge to take decision on any financial matter. Thus Legislature had no

financial powers and its legislative powers were also sufficiently curtailed. The

Governor General could withhold any Bill from his assent or could amend it the way

he liked. He could certify and Bill and sign it as a permanent law despite Legislature’s

opposition to it. The second Chamber called the Council of State was so constituted

that it provided an additional safeguard for the Government. To quote the words of

Mr. Srinivas Aiyangar, the constitution of the Council of State was so planned and

constructed that it “checkmated the Assembly and formed an impregnable citadel for

the Government.”

(2) Absence of responsible Government at the Centre.—The Government

of India Act, 1919, no doubt contained provisions regarding the additional of a few

more Indian members to Viceroy’s Executive Council but they tended to be merely,

yes-men to the Executive Council in order to retain their position. Commenting

adversely on the absence of even a partially responsible Government at the Centre, Pt.

Motilal Nehru in his Presidential address at Amritsar Congress held in 1919 remarked

that the most serious omission in the Act was that it failed to provide for any

transference of administrative or political power to the representatives of the people in

the Central Government.

(3) The system of communal electorate encouraged fractionalism among

the Indians.—The Act of 1919 extended communal representation to Sikhs, Indian-

Christians, Europeans and Anglo-Indians besides the Muslims. Provisions were also

made for electorates representing special interest, such as universities, trade and

commerce, landholders etc. This obviously led to clash of interest between the

different groups of India society. The communal representation originated by Morley-

Minto in 1909 and consolidated by Montague Chelmsford Reforms widened the

 

 

differences between the Hindu and Muslim communities in India which eventually

paved way to partition of India in 1947.

(4) Restricted franchise was against the principle of democracy and

selfGovernment.—The franchise for both the Houses of the Central Legislature was

extremely restricted. High property qualifications, such as payment of land revenue

worth Rs. 1300/- or income-tax on not less than Rs. 20,000/- a year in Province of

Madras, or membership of University-Senate, prescribed by the Act for Council of

State made the “Upper House the representative and custodian of the vested interests

of zamindars and the capitalist classes”. Similar restrictions on franchise also existed

for the Legislative Assembly. These limitations and undemocratic character of the

Legislature were a glaring defect in the Reforms introduced by the Act of 1919.

(5) The political atmosphere of the country at the time of the introduction

of the Montague-Chelmsford reforms was not favourable.—One of the main

causes which accounted for the breakdown of the system of reforms envisaged by the

Act of 1919 was that they were introduced at a time when the conditions in India were

not suited to any political reforms. The Defence of India Act which was a war-time

measure, expired in 1917 and the Government wanted a fresh measure to suppress

anti-British propaganda and revolutionists in India. Therefore, a Committee under the

leadership of Rowlatt was appointed which submitted its report in October, 1918. The

recommendations of Rowlatt Committee came in the form of Rowlatt Bill which soon

became an Act despite strong opposition from the Indians. To add to the distrust and

discontent of the Indian masses, and Jallianwala Bagh incident79 at Amritsar on April

13, 1919, created horror and hatred for British rule in the minds of Indians.

Another unlucky state .that cast an evil eye upon the inauguration of Reforms

was the Khilafat Movement organised by Muslims in India in protest against the

treaty of SevereS,8° in 1920. The Muslims thought that their loyalty to British during

 

 

World War-I “counted for nothing in the day of victory”. The Congress also joined

hands with Muslims in the Khilafat Movement with a view to embarrassing the

British Government.

The cumulative effect of these events completely destroyed the goodwill

which alone could have animated the inauguration of Reforms of 1919. The new

Indian Legislatures could not function properly in an atmosphere of agitation and

attitude of indifference towards the British.

The phraseology of the Preamble of the Government of India Act, 1919 made

it clear that the British rulers themselves were not very sure about the successful

working of the Reforms. They considered the constitutional changes introduced by the

Act of 1919 as experiment rather than a beginning of a well- defined Constitution.

The Act clearly provided that a Statutory Commission, should be appointed within ten

years for the purpose of enquiring into the working of the system of Government, the

growth of education, and the development of representative institutions in British

India, and for reporting as to whether and to what extent it is desirable to establish the

principle of responsible Government or to extend, modify or restrict, the degree for

responsible Government, then existing therein

Be that as it may, the fact remains that the Montague ChelmsfOrd Reforms

introduced revolutionary changes in the sense that it promised responsible

Government which was categorically denied to Indian people by the MorleyMinto

Scheme of 1909.

 

 

CHAPTER XIII

THE FEDERAL SYSTEM OF GOVERNMENT

(Government of India Act, 1935)

The Government of India Act, 1935, laid down a federal form of Government

for India. Prior to this Act, the constitutional structure of the Government was unitary

wherein the Provincial Governments were derived their powers by devolution from

the Central Government and discharged their functions subject to the authority of their

respective Legislatures under the superintendence, direction and control of the

Cvernor General-in-Council and ultimately of the Secretary of State for India. The

only sphere in which the Provincial Governments enjoyed some measure of autonomy

was the administration of ‘transferred’ subjects. The Indian States were autonomous

within their own territories and their relations with the Governor General-in-Council

were governed by the rule of paramountcy. The Government of India Act, 1935,

envisaged a federal system of Government. It was a very elaborate and lengthy Act

comprising 321 sections and ten Schedules. Some of the provisions, however, did not

directly concern the constitutional problem and were, therefore, not of much

importance from the constitutional stand-point. The basic features of the Act were; (1)

All India Federation; (2) Dyarchy in the Centre; (3) Provincial autonomy; and (4)

Safeguards provided in the Constitution to the responsible Government in India.

 

 

Indian Federation under the Government of India Act, 1935:

The Government of India Act, 1935 contemplated the establishment of an

Indian Federation composed of the Governor’s Provinces and the Chief

Commissioner’s Provinces in British India and such of the Indian States, as may

voluntarily accede to it. The tribal and excluded areas were also to be subject to the

jurisdiction of the Federal Government of India, but they were not given a

representation on its various organs. The Governor’s Provinces and the Chief

Commissioner’s Provinces were to join the Federation compulsorily while the

princely States could enter the federation voluntarily if their ruler signed an

Instrument of Accession. Thus, any State could keep out of federation, if it so desired.

But the Act imposed a condition precedent for the establishment of the Federation.

The Federation could be established by the Crown only when the States representing

not less than one-half of the aggregate population of the States and entitled to not less

than fifty-two seats allotted to them in the Federal Upper Chamber (Council of State)

signified their assent to accede to the Federation. When the necessary number of

States assented to join the Federation and their Instruments of Accession were

accepted by the Crown, the two Houses of Parliament, the House of Lord and the

House of Commons, were to present an address to the Crown praying that a

Proclamation might be issued establishing a Federation. Then only His Majesty was

to issue a Proclamation,3 announcing the establishment of the Federation on a

specified date. Thus, there could be no Federation without the States joining it. The

ruler of the State desiring to joint the Federation in his Instrument of Accession had to

specify the matters in which the State agreed to federate and thereby be accepted with

in the jurisdiction of the Federal authorities on all such matters. Outside these limits

the autonomy of the State and its relations with the Crown as a paramount power

remained unaffected. A Ruler could, by a supplementary Instrument, vary the

Instrument of Accession by extending the subjects for which he had federated. The

Crown was not bound to accept any Instrument of Accession of a supplementary

Instrument if he considered that the terms thereof were inconsistent with the scheme

of Federation. In that case, the Instrument was to be rejected. Having once joined the

Federation, no State could get out of it nor could it diminish the subjects for which it

 

 

had acceded. Thus, the Federation of India, says K.V. Punniah was “a perpetual union

between the State and the Provinces.” The States were allowed a time limit of twenty-

years to make up their minds whether to join the Federation or to keep out of it.

Division of Powers under the Indian Federation:

The division of powers between the Federal Government and the federating

units is a characteristic feature of all the federations. Some of the Federations as those

of U.S.A. and Switzerland provide for the division of powers into two lists only—one

Federal and the other of the Units. Experience has shown that many a times such a

div.sion proves inconvenient because of its rigidity. At times it becomes necessary in

the interest of the nation as a whole to formulate a uniform policy on a subject

assigned to units. In that event it becomes constitutionally impossible for the

Federation to legislate on that subject unless an amendment of the Constitution is

affected to transfer that subject to the Federal list. To obvitate this difficulty, the

modern federations prefer to divide the powers into three lists, one Federal, the other

of the Units, and the third Concurrent. The concurrent list includes those subjects

which are local from the administrative standpoint, but in respect of which national

regulation and control becomes necessary from time to time.

In relation to the Provinces there was a three-fold division of functions and the

subjects were divided into federal, provincial and concurrent Lists. The Federal List

contained in all 59 items which were exclusively the federal subjects. The more

important of these subjects were defence, foreign relations including relations with

Indian States, extradition, railways, posts and telegraphs, foreign trade, shipping,

navigation, explosives, arms and ammunition, federal services, etc. The matters which

were of all-India interest and needed uniform policy were included in this List. The

federal sources of revenue mentioned in this List included customs, salt, opium,

income-tax, succession duties, stamp and excise duties on certain items, corporation

taxes, etc.

 

 

The subjects enumerated in the Provincial List were within the exclusive

jurisdiction of the Provincial Legislatures. This List contained matters of Provincial or

local interest, such as education, land revenue, local-self Government, public health,

police, prison, forests, irrigation, industries, etc.

Finally, the Concurrent List consisted of 54 items on which both Federal

Legislature and the Provincial Legislatures were competent to make laws. Some of

the subjects enumerated in the Concurrent List were civil and criminal law and

procedure, marriage and divorce, wills and trusts, bankruptcy, newspapers and press,

mines, faciories, labour welfare, etc. The Act provided that if a law passed by the

Federal Legislature on any subject contained in the Concurrent List, the Provincial

Legislature could not make a law on the same subject. The Governor-General was the

arbiter of the conflicting claims of the Federal and Provincial Legislatures in the

sphere of the concurrent subjects.6The residuary powers, including power of taxation

not covered by the Federal, Provincial and Concurrent Lists, was left to the discretion

of the Governor General. This statutory demarcation of the jurisdiction of the Federal

and Provincial Governments was, however, subject to following reservations:

(1) In case of emergency threatening the security of India due to war or

internal disturbance, the Governor General might authorise the Federal

Legislature to legislate on any subject included in the Provincial List.8

(2) The Federal Legislature could legislate on any provincial subject it the

Legislatures of two or more Provinces so desired. I3ut an Act so

passed could be amended to repealed by the Legislature of the

Province to which it applied.

(3) If a law made by the Provincial Legislature or a federated State was

repugnant to a federal law, which the Federal Legislature was

 

 

competent to make for the Province or the State concerned, the federal

law shall prevail and the law of the Province or State shall be void to

the extent of such repugnancy.

(4) The Federal Legislature was authorised to delegate power to tne

Provincial Legislatures even in respect of matters outside the

provincial list. This was an excellent provision which provided for

elasticity in law-making.

As regards the division of powers between the Federal Government and the

federating Indian States, the latter were left with far greater powers in their hands than

the Provinces. Thus, out of total 59 items included in the federal list, the federating

States were expected to accept only 47 items. Particular States would make few

reservations in their Instrument of Accession. Moreover, even in matters relating to

subjects which the States accepted as exclusively federal, they could retain concurrent

jurisdiction over them. Lastly, the subjects mentioned in the concurrent list were

wholly within the sphere of States authority and the Federal Legislature had no

jurisdiction over them. Thus within the States the Federation had no power to regulate

such matters as civil and criminal law and procedures factories, labour welfare, etc.

though in case of Provinces, it could regulate these concurrently with the Provincial

Government. The financial powers of the Federation over the States were also

extremely limited.

Peculiar features of the Indian Federation under the Act of 1935:

The Federation as contemplated by the Act of 1935, no doubt, possessed

certain basic principles of Federation. As rightly pointed out by A.B. Keith the Indian

Federation exhibited all the characteristics of a Federal Government,10 namely, a

written and a rigid Constitution, an elaborate division of powers and a Federal Court

to act as an umpire in constitutional disputes. These features were borrowed from the

Canadian and Australian models, which in their turn, had largely been influenced by

 

 

the American pattern. Nevertheless, the Indian Federation as envisaged by the

Government of India Act, 1935, had several peculiar or rather abnormal features

which distinguished it from every other federation of the world. These peculiarities of

the Indian Federation can briefly be stated as follows :—

(1) The first distinguishing feature of the Indian Federation was the

heterogefliety of its units. The federating units were dissimilar in size, populations

importance1 status and political character. It was a union of eleven Governors

Provinces which were partially democratic Institutions and five hundred and odd

autocratic States at varying stages of mediaeval feudalisfll. The disparity in legal

status and in the internal political structure of the federating units, namely, the

Provinces and the Indian States, presented a peculiar problem in forming the Indian

Federation. In theory, the Provinces had no original or independent power to

surrender to the Centre. In their case federation meant accession of powers for the

Centre. The Indian States, on the other hand, were not part of His Majestys dominion

though they were under his suzerainty. In their case, the federation meant transference

of power to the federal authority. This meant that the Federation was a gain to

Provinces and loss to the States.

Again, normally a federation is formed voluntarily by certain independent and

autonomous units desirous of a union for certain common purposes. But in the scheme

of federation proposed in the Government of India Act, 1935 the Provinces were to

join it compulsorily whereas the entry of the Princely States into the Federation was

purely voluntary to be signified by the execution of an Instrument of Accession. The

State became a unit of the Federation only after the acceptance of that Instrument by

the Crown.

(2) Another peculiarity of the Indian federal system was to be found in the fact

that the States differed not only from the Provinces but among themselves as to the

 

 

extent of their powers in the federation. The scope of federal jurisdiction in the States

depended solely upon the transfer made by the respective rulers through the

Instrument of Accession. This differential treatment of the units of a federation had no

rational basis and was likely to be a cause of mutual jealousy among the federating

States.

(3) Unlike a normal federation, the residuary power under the Indian

Federation was vested with the Governor General who had the discretion to decide

whether a particular subject not enumerated in any of the three legislative Lists,

should belong to the Federation or the Province. This made Executive, the supreme

power in the federation rather than the Constitution itself.

(4) One more abnormality of the Indian Federation was that it sought to bring

together units of varying political status and character. The British Provinces had a

semi-democratic framework and a constitutional Government. The Indian States, on

the other hand, were pure autocracies without any internal constitutional check on the

power and authority of the ruler. These States were represented in the Federal

Legislature by their nominees and this obviously meant that people of the State were

not properly represented in the Federal Legislature as they had no legal voice in the

selection of nominees. The composition of the Federal Assembly was contrary to the

basic principles of federation as the representatives from the Provinces were to be

indirectly elected on the basis of separate communal electorates while those from

States were the nominees of the rulers. In case of Council of States also there was a

departure from the normal practice of federalism. The representatives to this upper

House were elected by the method of direct election instead of indirect one. The

allocation of seats to the Provinces varied from province to province and specific

seats were assigned to Europeans, Anglo-Indians and Christians.

 

 

(5) The federation envisaged by the Government of India Act, 1935 stressed

on communalism as the seats in the Legislatures were to be filled in on the basis of

communal award. The Muslims, the Sikhs, the Hindus and even the depressed classes

were given separate representation and this broke down the solidarity of the nation.

(6) One of the accepted principles of federation is the concept of free and

limited Government. The two sets of the Government, the Central and the Regional

are autonomous and irLdependeflt within their assigned spheres of jurisdiction. Thus,

it recogniSeS the sovereignty of the people. But the Indian Federation proposed under

the Government of India Act, 1935 envisaged no real transfer of power to the people.

The Federal Legislature besides being improperly constituted, was to have very

limited powers. The Governor- General was vested with so vast a reserve of powers

that he was nothing short of a dictator in the federal sphere. More than 80 per cent of

the items in the budget were not votable and the Legislature had no control over such

expenditure.

(7) The provisions relating to amendment of the Constitution were sufficiently

rigid and complex and were contrary to basic principles of federal policy. Unlike the

Canadian and Australian Federalism where the Parliamentary sanction was a mere

formality, the Indian Federation made the parliamentary sanction a grim reality. The

Indian Legislatures could not even propose amendments except in certain minor

cases13 specified in the Act of 1935. The provisions of the Government of India Act,

1935 could be amended or altered only by the British Parliament.

(8) The Indian Federation unlike other federations, derived its authority from a

foreign source, namely, the British Parliament. Even the coming into existence of the

Indian Federation depended on the vote of the House of Parliament. The Government

of India Act, 1935 contained no provision for any automatic growth of the

Constitution and every thing was to depend on the whims of the British Parliament.

 

 

Thus, one critic has rightly remarked that “prior to 1947, India was governed neither

from Delhi nor from Simla, but from White-Hall.’

1. THE FEDERAL GOVERNMENT

The Federal Government as contemplated by the Act of 1935 comprised three

organs namely, (a) the Federal Executive; (b) the Federal Legislature; and (c) the

Federal Judiciary.

(a) The Federal Executive

The executive power and authority of the Federation was vested in the

Governor General as the representative of the King. The Governor General was

appointed by his Majesty by a Commission under the Royal Sign Manual; and he

exercised all the powers conferred on him by or under the Act of 1935, provided that

such powers were not connected with the exercise of the functions of the Crown in its

relations with the Indian States. The extent of the executive authority of the

Federation was defined in Section 8 of the Act. The Governor General,15 as the head

of the Federal Executive was supreme command of the military, naval and air forces

in India. This command was, however, subject to the power of his Majesty to appoint

a Commander-in-Chief to exercise in relation to those forces such functions as might

be assigned to him.

Prior to the Government of India Act, 1935, the Governor General also used to

be the Viceroy of India representing in the latter capacity the Crown in relation to the

Indian States Section 3 of the Government of India Act, 1935 separated these two

offices so that hereafter they could be held by two different persons. Now the

Governor General as such was not the Viceroy. But there was nothing in the section to

prevent both these offices to be held by one single person. Thus, His Majesty could

appoint one single person to hold both the offices of the Governor General and the

Viceroy.

 

 

Dyarchy in the Federal Government of India:

It is significant to note that whereas the Government of India Act, 1935

abolished dyarchy in the Provinces, it introduced the same in the Centre. The Act

dissolved the long established unity of the Government ot India represented by the

Governor General-in-Council and established ‘dyarchy’ in its place. The federal

subjects were divided into twb parts namely (i) Reserved, and (ii) Transferred

subjects.

The reserved subjects included defence, external affairs ecclesiastical affairs

and the administration of tribal areas. They were to be administered by the Governor

General with the assistance of not more than three Councillors to be appointed by

him. For rest of the subjects known as ‘transferred subjects’, the Governor General

was to be ‘aided and advised’ by a Council of Ministers, not more than ten in

number.’7 These Ministers were to be appointed by the Governor General and were

responsible to the Federal Legislature. The Governor General was to select his

ministers in consultation with the person commanding a stable majority in the Federal

Legislature. He was instructed to include in his Ministry, as far as practicable, the

representatives of the federated States and members of important minority

communities.

Despite this division of Federal Executive into two distinct halves, the

Governor General had wide discretion to act against the advice tendered by the

Ministry on ‘transferred subjects.18 Special Responsibilities of the Governor General:

The Governor General having been made the ‘key stone of the federal edifice’ under

the Act of 1935, he was armed with some extraordinary powers and entrusted with

certain special responsibilities. The special responsibilities’9 of the Governor General

extended to

 

 

(i) Prevention of any grave menace to the peace of tranquility of India or

any part thereof;

(ii) safeguarding of the financial stability and credit of the Central

Government;

(iii) safeguarding of the legitimate interests of minorities;

(iv) safeguarding of rights and legitimate interests of the members of the

spublic service or their dependents;

(v) prevention of commercial discrimination against British or Burmese

goods;

(vi) protection of the right of any Indian State and rights and dignity of

Ruler thereof; and

(vii) securing the due discharge of his functions with respect to matters in

relation to which he was required to act in his discretion under the

Government of India Act, 1935.

The Governor General was empowered to appoint a Financial Adviser to assist

him in discharge of his special responsibility for safeguarding the financial stability

and credit of the Federal Government. The Governor- General could also appoint an

Advocate General and fix his salary in the exercise of his individual judgment.

The Act further provided that in all matters in which the Governor- General

was required to act in his discretion or to exercise his individual judgments he was

under the control and direction of the secretary of State for India. All the executive

actions of the Federal Government were expected to be taken in the name of the

Governor General who made rules for the more convenient transaction of the business

of the Government and for the allocation of the business among the ministers. He

 

 

might require a minister or an appropriate secretary to bring to his notice any matter

which appeared to involve his special responsibility as a Governor General.

(b) Federal Legislature

The Federal Legislature under the Government of India Act, 1935 consisted of

His Majesty represented by Governor General and two Chambers to be known as the

Council of State and the Federal Assembly respectively.

The Council of State, which was the Upper Chamber was to consist of 156

representative of British India and not more than 104 representatives of the Indian

States. The quorum for the Council of State was fixed at 1/6th of the total

membership. The Council of State was to be a permanent body, not subject to

dissolution but one-third of its members were to retire every third year.

The Federal Assembly was to consist of 250 representatives of British India

and not more than 125 representative of the Indian States. The Federal Assembly

unless dissolved earlier, had a life of five years from the date of its first meeting. The

Governor General, might in his discretion, from time to time, summon, prorogue, and

address the Chambers or send messages, or dissolve the Federal Assembly provided

that the Chambers would be summoned to meet at least once in every year. The

representative of the Indian States in the Federal Assembly were all nominees of the

Rulers while those from Provinces were to be indirectly elected. The allocation of

seats among the indian States was proportionate to their respective population.

The Council of State and the Federal Assembly were to select from among

their members respectively a President and a Speaker to preside over these Chambers.

A member after having been chosen as a President or as a Speaker, was to vacate his

 

 

office if he ceased to be a member of the Chamber over which he presided. He could

resign his office any time or be removed from his office by a vote of no confidence

for which fourteen days prior notice was necessary. The Joint Session of the two

Chambers was to be presided over by the President of the Council of State.

Powers of the Federal Legislature:

The powers of the Federal Legislature related to legislation, finance and

control of administration. The Federal Legislature as envisaged by the Government of

India Act, 1935 was a non-sovereign body, and the Executive could legislate by itself.

Accordingly, the powers of the Federal Legislature were neither unlimited nor

exclusive. In other words, its powers were severely restricted by the following

limitations:—

(1) Despite distribution of power, which is an inevitable feature of a federal

Constitution, there were certain matters on which the Indian Legislature (Federal as

well as Provincial) had no power to legislate. Thus, the Indian Legislatures were

debarred from making any law affecting the sovereign or the Royal family or the

succession to the Crown of the sovereignty, domain or suzerainty of the Crown in any

part of India, or the law of British nationality; or the Army, Air Force and the Naval

Discipline Acts of the Law of Prize or Prize Courts or the Government of India Act,

1935 itself except insofar as permitted expressly by the Act itself.

(2) There were certain other subjects on which the Indian Legislature could

legislate only with the previous consent of the Governor General. No Bill or

amendment could be moved in the Federal Legislature on the followmg matters unless

previous consent of the Governor General was obtained:

 

 

(a) for repealing, amending any provision of any Act of Parliament

extending to British India;

(b) for repealing or amending any Act, order or rule promulgated by tile

Governor General or Governors in their discretion;

(c) any matter in respect of which the Governor General is required to act

in his discretion;

(d) anything that affects any Act relating to any police force;

(e) anything that affects the procedure or criminal proceedings in which

European British subjects are involved;

(f) for subjecting any person not resident in British India or companies not

wholly controlled or managed in British India to greater taxation than

persons residing in British India or companies controlled or managed

in British India;

(g) anything which affects the grant of relief from any federal tax in

respect of income taxed or taxable in United Kingdom.25

(3)The Federal Legislature was empowered to legislate on the subjects which

were exclusively within the Provincial jurisdiction. However, in case of a grave

emergency whereby the security of India was threatened whether by war or by

internal disturbance, the Federal Legislature was given power to make law for a

province or any part thereof on any subject in the provincial list. But before doing so,

prior consent of the Governor-General had to be obtained. Such laws ceased to

operate six months after the revocation of the proclamation. Section 103 of the Act

also empowered the Federal Legislature to legislate for two or more Provinces on a

certain subject, if the Legislatures of those Provinces requested it to do so by a

resolution.

 

 

Subject to the above limitations, the Federal Legislature could legislate on

all the federal and concurrent subjects. It could delegate its powers and duties to

Provincial Legislatures even in respect of matters outside the Provincial list.27

Legislative Procedure:

The two Chambers had nearly equal powers and any Bill, except a

financial Bill, could be introduced in either Chamber. The demand for grants

were to be submitted first to the Assembly. Both the Chambers had the power

assent or refuse to assent to any demand or to reduce it. Where the Assembly

Governor General so directed; and where the Assembly reduced a demand, the

Council of the State was to be asked to sanction the reduced demand, unless the

Governor General directed otherwise. If the Chambers differed with respect to any

demand, the Governor General was to summon a joint sitting of the two Chambers to

resolve the deadlock and the decision of the majority was to prevail.

A Bill was regarded as having been passed when it was passed by both the

Chambers. In case a Bill after being passed by one Chamber was rejected by the other

or was amended in a form not agreeable to the former, or a period of six months had

elapsed from the date the Bill was sent to the other Chamber, in that event the

Governor General could summon a joint sitting of both the Chambers.29 After the

Bill was passed by both the Chambers it came for the assent of the Governor General.

He could assent to it, or veto it or send it back for reconsideration or reserve it for His

Majesty’s consideration. Any Act assented to by the Governor General could be

disallowed within a year by the King-in-Council.

Financial Powers of the Federal Legislature:

 

 

The Government of India Act, 1935, empowered the Governor General to

make rules for the timely completion of the financial business. No demand for a grant

could be made except on the recommendations of the Governpr General. A Bill of

amendment for (i) imposing or increasing any tax, or (ii) for regulating the borrowing

of money, or (iii) for declaring any expenditure charged on the revenues of the

Federation, or (iv) for increasing the amount of any expenditure, could be introduced

or moved except with the previous sanction of the Governor General. No Bill or

amendment which affected coinage and currency of the Federation could be

introduced or moved in either Chamber of the Federal Legislature without the

previous sanction of the Governor General in his discretion.

The Federal Budget was to be divided into three parts, namely:—

(i) Non-votable part which was not to be submitted to the vote of the

Legislature at all. This included salary and allowances of the Governor- General and

other expenditure relating to his office, salaries and allowances of Ministers,

Counsellors, Financial Advisers, Advocate-General etc., salaries, allowances and

pensions of Judges of the Federal Court and High Courts; sum payable to Crown for

discharging functions of paramountcy; grants connected with the administration of

Excluded Areas; sums required to satisfy any judgment, decree or award of any court

or arbitral tribunal and expenditure declaredby the Act to be so charged. These heads

estimated to cov about 80 percent of the total Federal Budget.

(ii) That part of the Budget which was to be submitted to the vote of the

Legislature but in respect of which the Governor General could restore any reduced or

rejected demands. This part contained Budget proposals which the

 

 

Governor General might regard as essential to the fulfilment of his special

responsibilities. Thus, this part of the Budget was voted upon but the decision of the

Legislature could be set aside by the Governor General.

(iii) That part of the Budget which was to be submitted to the vote of the

Legislature and in respect of which the decision of the Legislature was final.

In conclusion, the powers of the Federal legislature were severely restricted due to

executive legislation, ordinance-making by the Governor General and restrictions as

to finance, currency and tariff policy, etc.

(c) Federal Judiciary (Federal Court):

The Government of India Act, 1935 provided_for the establishment of a

Fed1rf1EIi1aat Delhi. Th’urt was to act as the interpie’ter and &nd as a tribunal for

the determination of disputes between the constituent units of the Federation. Thus, it

was to act as an umpire in the constitutional disputes arising between the Federal

Government and its component units regarding their spheres of jurisdiction.

The Composition of the Federal Court:

The Federal-Court of, India was to consist of a Chief Justice and not more

were to be to remam rn office till they attained the ae of 65 A Judge of the Federal

court cIrEremoved froiit office even earlier, on the ground of misbehavIour or

infirmity of mind if the Judicial Committee of the Privy Council, on a reference riade

to them by His Majesty, reported his removal.

In order to ensure the judicial independence of the Federal Court, the salaries

and allowances of the Judges were made non-votable b, the Legislátüre al-id were to

 

 

be fixed by His Majesty in Council. The emoluments and the conditions of seivice of

the Judges could not be varied to their disadvantage during their term of office.

Qualifications for the Judges of the Federal Court:

No person could be appointed as a Judge of the Federal Court unless he

possessed the following qualifications:—

(a) He had served as a Judge of High Court in British India or a Federated State

for at least five years; or

(b) He was a Barrister of England or Northern Ireland or a Member of the Faculty

of Advocates of Scotland, of at least ten-year’s standing; or

(c) He had been a Pleader of a High Court in British India or a federated State or

of two or more such Courts in succession for at least ten years.

For appointment as a Chief Justice of Federal Court, it was necessary that he

should be a Barrister or Pleader of at least fifteen year’s standing.

It is significant to note that the qualifications for Judgeship of the Federal Court

were deliberately so kept in order to exclude members of Indian Civil Service from

this august office.

Jurisdiction of the Federal Court:

The Federal Court of India had three-fold jurisdiction, namely, original, appellate

and advisory.

(1) Original Jurisdiction.— The original jurisdiction of the Federal Court

extended to all the disputes Federation and any of its units or been two or more

 

 

component units of the Federation, if it involved any question of law or fact on which

the existence of a legal right depended, if however, any federated State was a party to

a dispute, then the original jurisdiction of the Federal Court did not extend to it,

unless:—

(a) the dispute related to the interpretation of the Act or order in Council or it

related to the legislative or executive authority vested in the Federation by

virtue of the Instrument of Accession; or

(b) it related to administration of a Federal Law in the State; or

(c) it related to an arrangement made after the establishment of the Federation

with the approval of His Majesty’s representative for the exercise of the

functions of the Crown in its relations with Indian States being an agreement

which expressly provided that the jurisdiction of the Federal Court would

extend to such a dispute.

Briefly speaking, while the original jurisdiction of the Federal Court in case of

British Provinces, the Chief Commissioner’s Provinces and the Federation extended

to any dispute involving a legal right, in case of Indian States it extended only to the

cases which were strictly constitutional in nature, but not to others, unless by express

agreement with a State. Even constitutional disputes to which a federated State was a

party could be excluded from the jurisdiction of the Federal Court by an express

agreement between the State and the Federal Government.

(2) Appellate Jurisdiction.—The appellate jurisdiction of the Federal Court

extended to appeals from any judgment or decree or final order of the High Court in

British India, if the Court certified that the case involved a substantial question of law

as to the interpretation of the Government of India Act, 1935 or any order in Council

made thereunder. In such cases, no appeal lay directly to the Privy Council with or

without special leave.

 

 

The appellate jurisdiction of the Federal Court also extended to some civil cases

where the claim or subject-matter in dispute was not less than Rs. 50,000/- or such

other sum not less than Rs. 15,000/-.

Finally, an appeal on any other case could also be brought to thu Federal Court by

special leave.

These provisions for appeal to the Federal Court in civil cases were in applicable

to the Federal States.

The Federal Court had no appellate jurisdiction over criminal cpses.

(3) Advisory Jurisdiction.—The Advisory jurisdiction of the Federal Court

extended to such questions as were referred to it by the Governor General acting in

his discretion for its opinion. The questions for opinion invariably involved

interpretation of the Constitution. The Governor General was, however, not bound by

the advice tendered to him by the federal Court: -

The Federal Court possessed extensive powers for exercise of its judicial

functions. The Court could summon and examine witnesses and order production of

any document. It could punish for its own contempt and make rules for regulating its

own procedure and legal practice at Bar.

Appeals to the Privy Council:

 

 

The establishment of Federal Court in India did not affect the final appellate

jurisdiction of the Privy Council. In constitutional cases coming under the original

jurisdiction of the Federal Court, an appeal still lay to the Judicial Committee of the

Privy Council as a matter of right and without the leave of the Federal Court. In other

cases, however, an appeal lay to the Privy Council by special leave.

CHAPTER XV

THE INDIAN INDEPENDENCE ACT, 1947

 

 

Arrangements having been made for the transfer of power in accordance with

the scheme laid down in the Mounbatten’s Plan, the British Government lost no time

in implementing the Plan. A Draft of the Indian Independence Bill was prepared and

circulated to the leaders of the Congress and the Muslim League for their

consideration. The Bill was then introduced in the British Parliament on July 5, 1947

which finally became an Act on July 18 to be operative on August 15, 1947.

The Indian Independence Act was thus the legislative culmination of the

announcement made by His Majesty’s Government on June 1947. It was an outcome

of the British Governments untiring efforts to establish constitutional Government in

India comprising solely of the Indian representatives. It is well known that the

principle that India should have its own new Constitution was recognised for the first

time by the coalition Government of Britain in 1940. To accomplish this purpose, a

series of efforts were made by the British Government, the beginning of which can be

traced from the Cripps Commission of 1942 followed by the Cabinet Delegation

Mission in 1946. With a view to completing the process, His Majesty’s Government

made two significant Declarations on December 6, 1946 and February 20, 1947

respectively. Finally, in their historic declaration of June, 3, 1947, His Majesty’s

Government announced their decision to divide India into two Dominions, namely,

India and Pakistan and to transfer the power on August 15, 1947.

Background:

The Indian Independence Act, 1947 was drafted in India and was shown to

Indian leaders before being presented in the British Parliament. It was more in a

‘nature of enabling measure as it enabled, “the Indian representatives in the

Parliament to draft their own Constitution” and until the Constituent Assembly of

these two Dominions (India and Pakistan) framed their own Constitutions, they were

to have equal partnership of the British Commonwealth and their administration

during the transitional period was to be carried on according to the provisions of this

 

 

Act which were elastic and progressive. The life of the Act was till such time as

Constituent Assembly for each of the Dominions does not supersede it by its own

legislation. It gave unlimited powers to Constituent Assemblies to adopt any form of

the Constitution. In short, the object was to transfer power in shortest possible time.

The Act consisted of twenty sections in all and came into force with effect from

August 15, 1947. However, with the coming into force of the Constitution of India on

26th January, 1950, the Indian Independence Act, 1947 stood repealed by Article 396

of the Constitution. The main of the Indian Independence Act are as follows:—

1. Creation of two Dominions—India and Pakistan.—The Act provided for

the partition of India and establishment of two independent Dominions— India and

Pakistan from August 15, 1947. The word “independent” signified the absence of any

external restraint.

Clause (2) of the Act defined the territories of the two new Dominions and

made it possible to bring about necessary adjustments in the existing boundaries.

Clauses (3) and (4) provided for the partition of Bengal, Punjab and Assam keeping in

view the aspirations of the people of these territories and fixing of the boundaries of

these divided Provinces by the Boundary Commission.

The Dominion of Pakistan consisted of two non-contiguous partitions, West

Pakistan and East Pakistan which were severed from old India. It is important to note

that the Act for the first time brought about the division of India into two independent

States on communal basis which was hitherto unknown to the history of India.

2. Legislative Supremacy of the Dominions of India and Pakistan.—The

Act provided for the legislative supremacy of the two Dominions. The Governor

General of either Dominion was empowered to promulgate ordinances to meet

 

 

emergencies as provided under the Government of India Act, 1935. Such ordinances

were to remain in force only for six months until superseded by an Act of the

Dominion Legislature. But the authority of provincial Government under Section 93

of the Government of India Act, 1935 was done away with. The provisions requiring

the Governor General or any Governor to act in his discretion or exercise his

individual judgment would ceased to have effect from August 15, 1947. The

Governor General was, however, invested with plenary powers until March 1948, to

issue orders for the effective implementation of the Indian Independence Act, 1947

and the division of the assets between the two Dominions, to adopt or modify the

Government of India Act, 1935 and to remove any difficulties that might arise during

the transitional period.

The Act provided that until a new Constitution was framed for each of the

Dominions, the Constituent Assemblies were to act as Dominion Legislatures and

were to exercise all powers which were formerly exercised by the Central

Legislature.2 This power was to be exercised by the Constituent Assemblies in

addition to their power of framing of a new Constitution for their respective

Dominions. This was indeed a unique feature which the Constituent Assemblies of

India and Pakistan were conferred under the Indian Independence Act, 1947 as

compared with other Dominions of the world.

No Act of British Parliament passed on or after August 15,1947 was to extend to

either of the Dominions as part of the law of that Dominion unless it was passed as a

law of the Legislature of the Dominion.

3. Freedom From British Rule. — The most epoch-making effect of the Act

was that India no longer remained a dependency of British Empire. Like other

dominions, it now got the status of an independent nation. Thus the British period in

India came to an end after nearly three and half centuries of trading, two centuries of

political power and 130 years of general supremacy.

 

 

The Crown now became the King of India and Pakistan and lost his Royal title

of Emperor of India.

After the coming into force of the Act, the British Government had no control

over the affairs of the Dominions of India and Pakistan or any part thereof.

4. Continuance of the Government of India Act, 1935 until the framing of

a new Constitution by the Dominions of India and Pakistan.—The Indian

Independence Act, 1947 specifically laid down that the new Dominions shall continue

to be governed by the provisions of the Government of India Act, 1935 insofar as they

are consistent with Dominion status. It empowered the Governor General of each of

the two Dominions to make necessary omissions, ‘additions or modifications in the

Government of India Act, 1935 and the Orders-in- Council, Rules and other

Instruments made thereu9der till March, 31, 1948. After that day, it was open to the

Constituent Assemblies to modify or adopt the same Act.

5. Termination of the Crown’s Paramountcy.— With the transfer of power

to the Dominions of India and Pakistan in accordance with the Indian Independence

Act, 1947 the paramountcy and suzerainty of the British Crown over the India and the

Indian States came to an end. Consequently, all treaties and agreements between His

Majesty and the rulers of the Indian States and all functions exercisable by His

Majesty with regard to Indian States and their rulers, and all powers, grants, rights,

authority or jurisdiction of His Majesty over Indian States lapsed from August 15,

1947. The Act, however, enabled the States to accede to any of the two Dominions by

agreement for their defence and some other matters of common interest such as

external affairs and communications.

 

 

The Instrument of Accession relating to Dominion of India laid down that the

acceding States have agreed to give to the Legislature and authorities of the Dominion

of India, jurisdiction over matters, namely, defence, external affairs and

communications.

6. Agreements with N.W.F.P. Tribes. — The Act provided that agreements

with the tribes of the North-West Frontier Province of India were to be negotiated by

the successor Dominions.

7. Office of the Secretary of State for India abolished.—The Government

of India was transferred from East India Company to the Crown by the Government

of India Act, 1958. By this Act the British Parliament became the direct guardian of

India and office of the Secretary of State for India was created for the administration

of Indian affairs. The Secretary of State was responsible to the Parliament while the

Governor General and the Provincial Governors remained under the direct control of

the Secretary of State until the Indian Independence Act of 1947. The constitutional

position of His Majesty’s Government in United Kingdom in relation to India having

been altered from August 15, 1947, their responsibility as regards the Government of

the territories included in British India ceased and the sovereignty of British Crown

over Indian States came to an end. Consequently, the office of the Secretary of State

for India and his advisers was abolished by the Indian Independence Act, 1947.

8. Continuance of the Civil Service of the Crown under the Government

of the new Dominions of India and Pakistan.—Section 10 of the Indian

Independence Act, 1947 contained that the persons who were appointed by the

Secretary of State in Council to the Indian Civil Service were to continue on and after

August 15, 1947 under the Government of either of the new Dominions or any

Province or part thereof and their conditions of service in respect of remuneration,

leave pension, tenure and rights relating to disciplinary matters, etc. could not be

 

 

altered to their detriment. The provisions in respect of the Indian Armed Forces and

Naval Force were contained in Sections 11, 12 and 13 of the Act.

9. The Governor-General for each Dominion and his powers.—The Indian

Independence Act, 1947 provided that each of the two Dominions of India and

Pakistan was to have a Governor General appointed by the King for the purpose of the

Government of the Dominion. The Act also provided that same person could be

appointed Governor General for both the Dominions. Accordingly, Lord Mounbatten

was appointed as the first Governor General for the Dominions of India5 and

Pakistan, both. However, after the Pakistan Constituent Assembly came into

existence, Mr. Jinnah the leader of Muslim League was elected as Governor General

of Pakistan. The Indian Congress however, preferred to continue Lord Mounbatten as

Governor General of India for sometime. The main responsibility of the Governor

General was to set out the machinery for bringing the Indian Independence Act, 1947

into operation. He had also to make the adaptations required in the Government of

India Act, 1935 in order to make it a new Constitution for the time being. Particularly,

he had before him the task of carrying on for the time being on behalf of the new

Dominions or on behalf of any Province, certain vital services such as railways and

other communications, Reserve Bank, the monetary and fiscal System, defence and

the like, which were hitherto being operated in the interests of whole of India. These

wide powers6 were given to the Governor-General for carrying out the various

governmental activities during the transition period. The powers of the Governor

General were to terminate on March 31, 1948 and could be ended even earlier by the

Dominion Legislatures.

The right of the King to veto or to reserve law for his pleasure came to an end

with the passing of the Government of India Act, 1947 and the Governor General was

given the right of assent in the name of His Majesty to any law to the Dominion

Legislature made in its ordinary legislative capacity.

 

 

10. Lapse of the Instrument of Instruction.—Section 18 of the Indian

Independence Act provided that the existing Instrument of Instructions to the

Governors and Governor General shall lapse with the coming into effect of this Act.

The reason being that the Governors and Governor General were now required to act

as the constitutional heads in future and, therefore, Instruments of Instructions were

no longer necessary for them.

EFFECTS OF THE INDIAN INDEPENDENCE ACT, 1947

The Indian Independence Act, 1947 marked the end of ninety years British

rule in India beginning from 1858. The British Crown severed its paramountcy atone

stroke. The Indian States regained their status which they enjoyed prior to the British

sovereignty. The source of the Constitution of newly created Dominions of India and

Pakistan was the Government of India Act, 1935, but subject to modifications made

by the orders passed b the Governor General under Section 9 (1) of Indian

Independence Act, 1947.

Section 6 (2) of the Indian Independence Act, 1947 vested in the Legislature

of either Dominion, the power to repeal or amend any Act of British Parliament

existing or future one. Even the Indian Independence Act, 1947 itself could be

repealed or amended under this clause of the Act.

By this Act, the British Parliament renounced its sovereignty once for all and

no further imperial legislation was necessary for validating the future Constitution of

India or Pakistan, as the case may be.

 

 

The Dominions of India and Pakistan were not to derive their authorities from

British Crown. The officers of these Dominions were to take oath of allegiance not to

the British Crown but to the Constitution of their respective Domjnions. So also, the

granting of honours by British Crown to people of India came to an end. Even in the

flags of the two Dominions there was no place for Union Jack.

There was no longer any Executive Council as under the Government of India

Act, 1919 or Counsellors as under the Government of India Act, 1935. The Governor

General or the Provincial Governor was not to act on the advice of the Council of

Ministers enjoying confidence of Dominion Legislature i.e. the Constituent Assembly

or the Provincial Legislature, as the case may be. The Governor General was

empowered to promulgate ordinances to meet emergencies as provided under the

Government of India Act, 1935. Such ordinances could remain in force for six months

only until they were superseded by an Act of the Dominion Legislature. The authority

of the Provincial Governments under Section 93 of the Government of India Act,

1935 came to an end with the enforcement of the Indian Independence Act. One

extraordinary power which the Governor General of Pakistan assumed was that he

could interfere in the provincial affairs and in respect of most vital matters of

appointment and removal of the ministers themselves. But, in relation to the Indian

Dominion, the Governor General did not have any such direct authority in the matter.

So far as the Constituent Assembly of Dominion of India was concerned, it

was to have separate sittings when functioning as the Dominion Legislature and the

members representing Indian States were entitled to participate in business relating to

subjects in respect of which they had acceded to the Dominion. While sitting as

Legislature, the Constituent Assembly was to have a Speaker and a Deputy Speaker.

The sovereignty of Dominion Legislature, as envisaged by the Indian Independence

Act, 1947 was complete and no sanction of the Governor General was required to

legislate on any matter and there was no repugnancy by reason of contravention of the

Imperial law.

 

 

As a result of the partition of Bengal and Assam, the size of the new Province

was diminished considerably. Hence, they were to have unicameral Legislature, the

Legislative Council of these Provinces having been abolished from August 15, 1947.

The European territorial constituencies were abolished in the Legislatures of all the

Provinces.

The provisions requiring the proceedings of Central and Provincial Legislature

to be conducted in English, were deleted.

No person was entitled to remain a member of a Provincial Legislature of one

Dominion and also be a member or Constituent Assembly of another Assembly.

Under the scheme contemplated by the Indian Independence Act, the existing

division of Legislative powers was retained and, the power of Central Legislature to

legislate on provincial matters in case of proclamation of emergency by the Governor

General, was also retained.

The Federal Court Order, 1947, passed by Governor General on August ii,

1947 restricted the jurisdiction of existing Federal Court to India. A similar provision

was also made for proceedings until their final disposal. By an order passed by the

Governor General, the jurisdiction of High Court of Calcutta and Lahore was

restricted to the Provinces of West Bengal and West Punjab respectively and new

High Court with similar powers and procedure was established for East Bengal and

astPunjab.

 

 

The members of All India Service lost the protection of Secretary of State and

they were now fully under the control of Dominion or Provincial Government, as the

case may be. Thus, they were now not the agents of the British Government but

employees of the Dominion which they served.

Change effected by the Indian Independence Act, 1947 in the Government of

India Act, 1935:

The Indian Independence Act necessitated some changes in the provisions of

the Government of India Act, 1935, Certain clause5 of this Act had to be amended to

suit the requirement of the new constitutional arrangement for the newly formed

Dominion of India. To achieve this end, the “India (Provisional Constitution) Order,

1947” was 1assed which introduced the following changes in the Government of India

Act, 1935.

(1) After Independence India no longer remained a “Government by the

Crown” hence Section 2 of the Act was omitted.

(2) Section 3 of the Act which provided for a Governor General to be

appointed by His Majesty by a Commission under the Royal Sign

Manual was amended.

(3) Section 5 was amended to provide for the establishment of the

Dominion of India from August 15, 1947 which was to comprise a

union of the Governor’s Provinces, Chief Commi55i0flar5, the existing

Indian States and any other area which may be included in it with the

consent of the Dominion.

 

 

The existing definitions of “Indian State” and “Ruler” in the Act were omitted

as any territory could be recognised by the Dominion Government as a State for the

purposes of accession to Indian Union.

(4) Section 6 of the Act provided for the accession of Indian States. An

Indian State was to be deemed to have acceded to the Dominion of

India if the Governor General signified his acceptance of an Instrument

of Accession executed by the ruler thereof. Provision was also made

for supplementary Instrument of Accession to be executed by the rulers

and accepted by the Governor General. When an instrument of

Accession was accepted by the Governor General, copies of the

Instrument and the acceptance of the Governor General were to be

placed before the Dominion Legislature and all courts were required to

take judicial cognizance of every such instrument and acceptance.

(5) The Governor General became the ‘constitutional head’ and was

required to act only on advice of the ministry. Section 9 of the Act

provided for the establishment of a separate Federal Court for Pakistan

but the Indian Federal Court was to retain jurisdiction over pending a

Council of Ministers to aid and advice the Governor General in the

exercise of all his functions. What was formerly known as the

‘Executive Council of the Governor General’ now came to be known

as the ‘Cabinet’ consisting of sixteen Ministers. The old Departments

of the Central Government were re-named as ‘Ministries’. The Cabinet

was a homogeneous body and the Ministers were collectively

responsible for all governmental actions.

(6) Sections 11 to 15 of the Act of 1935 which contained provision

relating to Reserved Subject, special responsibilities of the Governor

 

 

General, Instrument of Instructions. Superintendence of Secretary of

State and Financial Adviser to the Governor General, were omitted

being obsolete in the changed context.

(7) The Constituent Assembly became the Dominion Legislature and it

was required to frame a new Constitution and to pass laws for the

country. The Central Legislative Assembly and Council of State were

abolished. The restrictions which existed on the legislative powers of

the Central Legislature were removed. The Legislative powers of the

Governor General were taken away. He could, however, promulgate

ordinances only in case of emergency. The provisions relating to the

breakdown of constitutional machinery were omitted.

(8) The provisions relating to the Federal Court; its powers, authority and

jurisdiction substantially remained unchanged. The Court was mainly

to function was a Court for deciding constitutional issues. Appeals

from the Federal Court still lay to the Privy Council. The threefold

jurisdiction of the Federal Court, namely, original, appellate and

advisory, was retained unchanged. The Dominion Legislature was

empowered to enlarge the civil appellate jurisdiction of the Federal

Court.

(9) The Indian Independence Act, 1947, introduced significant changes in

the Provincial Administration. The Governors now became the

constitutional head of their Provinces and ministers were appointed for

their aid and advice. The ministers were to be jointly responsible to the

Provincial Legislature. The Provincial Legislatures thus became

supreme in their field. While the legislative powers of the Governor

were taken away, he could promulgate ordinances at the time when the

 

 

Legislature of his Province was not in session. The provisions in

respect of special responsibilities of the Governor and constitutional

breakdown in the province were omitted being obsolete.

(10) The distribution of powers between the Union and the Provinces

remained more or less the same as under the Government of India Act,

1935.

Constitutional Position of the Indian States After the Indian Independence Act,

1947:

As a result of the Indian Independence, the British treaties came to an end and

with it, the British paramountcy also terminated. Though in theory each Indian state

became independent but they were strongly advised by the departing British Crown

that they should associate themselves with one or the other Dominion. Some of the

rulers, however, declined to join either of the two Dominions. The Indian Congress

was of the opinion that the lapse of British Paramountcy would not make the Indian

states sovereign and independent while Mr. Jinnah held a contrary view.

Lord Mounbatten made an earnest effort to solve this constitutional problem

arising on account of the hostile attitude of some of the States to join either of the two

Dominions. He tried to convince the ruling Princes that it was in their own interest to

accede to a Dominion at least for the purposes of defence, external affairs and

commuflicati01 He felt that it would not be expedient for every State to have their

own arrangements in respect of these matters. Moreover, the accession of States to the

Dominion for these specified purposes was not going to burden them with any

additional financial liability nor was it going to effect their sovereign status in any

way. Responding favourably to Mounbatten’s appeals the Princes of all the States

 

 

except those of junagarh, Hyderabad (Nizam)’ and Kashmiru announced their

accession to India.

India’s Status in the Commonwealth of Nations:

After the Indian Independence Act, 1947, the status of Dominion was virtually

one of Independence. The link that existed between them and the British Crown was

for their own benefit and not a burden in any way.

The Judicial Committee of Privy Council in their decision in a Canadian case

had observed: “Since the statute of West Minster, 1931, there is no limit to the

sovereignty of Dominion Legislature and so it seems that the questions whether the

Dominion can legally secede from British Commonwealth must be answered in

affirmative.” So far as the status of the Dominions of India and Pakistan were

concerned there was no room for any such doubts for the Independence Act had given

them a blank cheque.

Commenting on the nature of the British Commonwealth, Mr. Henderson the

Under-Secretary of India during second reading of the Indian Independence Bill,

observed. The British Commonwealth of Nations is not static but constantly

developing and it has throughout the years steadily changed from an people inspired

by common ideals and united by common interest.”3 These observations helped to

remove doubts of the Indian people that the membership of the Commonwealth meant

subjugation and subordination to the British rule. They were convinced that the

membership of Commonwealth was only a mutual relationship based on deep-rooted

affinities in ideas and institutions of the two countries—India and United Kingdom.

India, therefore, joined’4 the Commonwealth in April 1949 which was ratified by the

Constituent Assembly by India’5 in May 17, 1949. Consequent to Indian’s joining the

 

 

British Commonwealth it no longer remained the “British Commonwealth”, but came

to be known as the “Commonwealth of Nations” with U.K., Canada, Australia, New

Zealand, South Africa, India, Pakistan and Ceylon united as free and equal members,

co-operating in the “pursuit of peace, liberty and progress”. It was Pandit Jawahar Lal

Nehru who made substantial contribution to this new nomenclature of the

commonwealth by suggesting that the word ‘British’ should be dropped and it should

be known only as the “Commonwealth of Nations”.

At the time of joining the membership of the Commonwealth of Nations, the

Government of India declared and affirmed their acceptance of the King as a symbol

of the free association of independent member-nations and as such the heads of the

Commonwealth.

+It must be stated that member-nations have no rigid commitments between

them nor does the Commonwealth have any written Constitution, but its members

have broad ideals and abide by common interest for the maintenance of peace,

freedom and security. It is not a contractual association like the United Nations.

Commonwealth countries have a common heritage that they are generally

parliamentary democracies and they have respect for aspirations for freedom and self-

government. The member countries have free and frank exchange of views and there

is a broad measure of agreement on world problems. Initially, Pakistan had joined the

Commonwealth but it withdrew from it in 1971 to rejoin again in 1989. At present

there are more than fifty members in the Commonwealth and majority among them

are from Asian, African and the American sub-continent.

 

 

ASSIGNMENT

LEGAL HISTORY - K-113 Unit – I Q.1. Write a short note on the early administration of justice in Madras before the

establishment of Mayor’s court. Q.2. The charter of 1726 was inferior to that of the charter of 1689. Do you agree

with this statement? Q.3. Discuss the charter of 1753 and give its defects. Q.4. Give in short the history of British settlement of Bombay and give in brief

development of its administration of justice before 1726.