Indian Legal History-The Indian Council Act,1861

Background

Our first struggle for Independence was witnessed during 1857.Out of many reason, one was that Company authority was completely unaware of ground realities. There was only one law making super authority-Governor General and Council In Calcutta !

This centralization of power was continuous process started in 1773. Regulating Act brought some changes which pushed administration towards centralization. Regulating Act provided that Governor General and his council would be responsible for civil and military matters. Madras and Bombay presidency were made subordinate to Calcutta. Governors at these presidency could not make decision regarding tax, war, peace efforts without assent from Governor General at Calcutta except in need of immediate necessity. Hence local needs couldn't be catered effectively after 1773. 

Charter of 1833 added fuel to the fire. It empowered central council even more and took away little bit of law making power of Governors of Madras and Bombay. Under this charter, laws passed by Central Council in Calcutta would be applicable to all people in territory of company.

So to deal with above problems, to make administration more effective certain changes were brought by Crown by passage of The Indian Council Act 1861.

Indian Council Act

Below are certain provisions of Indian Council Act 1861.

Devolution of powers to Governors at Madras and Bombay

Earlier Madras and Bombay presidency was subordinate to Calcutta. After this act, they were conferred with legislative powers meaning law making powers. Now Governors at Madras and Bombay could make law according to local needs. However they need to get permission of their boss seating in Calcutta.

Provincial Legislature.

After devolving power to Bombay and Madras Presidency there were two additional provincial council established in North west Province and Punjab.

North West Province was established in 1880 and Punjab in 1897.

Legislative council of such provinces would consist of Lieutenant Governor and Certain nominated Councillors. This council was empowered to make law for the peace and good Governance of the territory concerned.

Two important point to be noted in respect of provincial law making councils. First, they need to take assent of Governor General in Calcutta to pass the law. Second, they were conferred legislative power only. Executive powers, such as police, budget, military etc were still controlled by Central Executives at Calcutta.

Changes at central level.

This act introduced some changes at central level which includes central executives and central legislature.

First, earlier there were 5 member in Governor and his council. One Governor General, 3 executive councilors and one law member. This council was enlarged and number of members were increased. Now composition of executive council stand as follows:
  • Governor General
  • 3 Executive councilors who were company's servant
  • 1 law expert or jurist, with 5 years standing as barrister
  • 1 member was to be appointed by Secretary of State as Commander-in-chief.

Second, Legislative Council was also expanded. It was to consist of below members
  • Ordinary, Extraordinary and additional members
  • More than 6 but less than 12 members to nominated by Governor General.
This legislative council was kind of supreme. They could repeal, later or amend any law of the British Territories and make laws for all person and all courts of justice for all the places and things within those territories.

Third, Governor General was empowered to issue ordinance. Ordinance is in case of emergency law is law is needed which cannot be made quickly with debate. In such cases ordinance could be issued which would expire in 7 months.

Conclusion

For the first time, Indians could participate in Law making process as there were 6-12 nominated members by Governor General. This is time when our nationalism began. 45 Indians were member of this council. See List

Decentralization was also good aspect as laws could be made for local needs for effective administration.
However even after this, Governor was still too powerful. And you know what happens when one person given too much power..


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