The Road to HMA 1955: Legislatures under the British Raj

Lawmaking was a process which was inherent to the system which the British used to govern themselves. They were nominally a democratic country, and they practiced lawmaking by the rule of the majority. It stands to reason that they wished to provide at least a facade of a certain minimum level of consultation before they promulgated laws in the territories ruled by them –and especially in the biggest country amongst the countries which were under their rule.

The system which the British used to govern India, in terms of lawmaking kept on being modified from time to time. There was, for a very long time, legislation without a legislature. Eventually a legislature was established –and it grew in its role and power till it reached the point when it became the parliament of free India.

British India at that time was defined as the territories governed directly or indirectly by the British in India plus Burma and Aden. As a matter of fact, Burma and Aden remained a part of British India till 1937. Needless to add, Pakistan and Bangladesh were parts of India at that time. That map of Bharat Mata which you see in in pictures of Bharat Mata personified is actually a map of British India. To confuse the issue further, British India was also the name given to those areas within India which were directly governed by the British.

The Calcutta Council was established in 1773 by the British government through the East India Company Act of 1773 aka Regulating Act. This act made the earliest attempt to ensure corruption-free working of a government in India which was governed at some level by elected men (albeit a highly bastardised version of democracy). Employees of the company were forbidden from taking gifts or carrying out private business. It consisted of four voting members other than the governor-general –and the governor general had a casting vote in addition to an ordinary vote. The council was a legislative as well as an executive body. The judiciary was anglicised with the establishment of a supreme court in Fort William by the same Act.

The only authority which could overrule the Calcutta Council was the court of directors of the East India Company which, in turn, could be overruled by the British government. It appears due to this fact and the fact that the court of directors of the East India Company elected the members of the council that the council members were less powerful than the directors of the East India Company.

This is not correct. Many directors of the company stood for election to the council, and they were often not elected by the rest of the directors. The great distance to India, and the resultant unsupervised governance over this nation that the members of the Council of India and the governor general exercised, ensured that these men were recognised as puissant figures even in their day. However, the governor-general remained the most powerful man in India. This fact is borne out by history. Warren Hastings did manage get rid of all the members of the council (or the Council of Four as it was known) one by one. It must however be appreciated that the men who were in government and those who were in the company came from the same aristocracy which ruled Britain.

In 1784 the powers of the East India Company were amended by the East India Company Act of 1784 aka Pitt's India Act. Legislative supremacy was formally put in the hands of the Privy Council of Great Britain. The cabinet exercised all the powers of the privy council, being nothing but its most powerful committee de jure. This is being called a formal transfer because veto power had always been in the hands of the cabinet. The governor general got the power to overrule the governing council of the East India Company, and thereby encroached in large measure on the counsellors' turf. A Board of Control was established under the cabinet to oversee the court of directors of the company.

Another East India Company Act, the Charter Act of 1793 made the approval of the monarch essential for the appointment of the governor-general, the commander-in-chief of the army, and the governors of the (two subordinate) presidencies of Madras and Bombay. The financial burden of the board of control was passed to the company from the government.

The Charter Act of 1813 again renewed the company's charter for twenty years. More powers shifted from company to crown with this Act.

All pretence of consultation in lawmaking ended with the Government of India Act of 1833 when the British government once again extended the charter of the East India Company to govern British India. The Governor-General of Bengal (Lord William Bentinck) became the Governor-General of India, and sweeping legislative powers were given to him over the presidencies of Madras and Bombay too, since they were both parts of India. The governing council was now renamed the Council of India. The governor general could carry out all his executive functions single-handedly or 'in council', but his legislative functions could be attenuated by this Council of India. Although he could do whatever he wanted to do in this role too.

The reaction to the revolt of 1857 was that the British government decided to do away with the East India Company in toto, and brought in legislation to effect this change by the name of the Government of India Act of 1858.

In 1858 the rule of the East India Company was ended by the British Government, and the company was liquidated. The Secretary of State for India came to be the point man for India in the British cabinet. He headed the India office which was the office mandated to supervise the Viceroy of India, which was the new and additional title given to the Governor General of India. The role of the Council of India was now to advise the India Secretary –and this council was now shifted to London from Fort William. It was enlarged to 15 members, and the members could be appointed only by the Secretary of State for India. One member could be appointed by the monarch.

The India Secretary could bypass the council and could form committees from within the council for various special purposes. The council which remained in Fort William was renamed the Council of the Governor General of India. This council now had three members who were nominated by the India Secretary and on who was to be nominated by the monarch. An Indian Civil Service was also established to rule the territories of British India. All power came to the crown because the company was dissolved.

In 1861 the Indian Councils Act made it possible for the governor-general to nominate from 6 upto 12 members to the India Council and for the India Secretary to nominate 3 members. The monarch could nominate 2 members. The members who were nominated by the India Secretary and the monarch were more powerful inasmuch as they were given executive roles in addition to legislative powers 'in council', while the ones who were nominated were only able to debate and vote in the lawmaking process, and possessed only residual executive powers.

As can be seen from the foregoing, the growth of the legislature began to pick up speed after the 1857 revolt. In 1869 the power to nominate the five executive members of the India Council was transferred to the cabinet –and in effect, to the Prime Minister. In 1892 the new Indian Councils Act raised the number of members with purely legislative powers to a fixed number of sixteen members, from the earlier six to twelve members. Indian members were admitted to this enlarged council, which was the first time in the history of British rule in India that Indians were being given a role in lawmaking for the whole country. Pherozeshah Mehta and Gopalkrishna Gokhale were two eminent members who also happened to be members of the Indian National Congress, which had been founded by Allan Octavian Hume in 1886.

In 1909 there was a major change. The Indian Council was broken into the Viceroy's Executive Council and an Imperial Legislative Council of 60 members (including 27 elected members), with executive and legislative functions separated between them. Many eminent Indian including Mohammad Ali Jinnah, Tej Bahadur Sapru, and Bhim Rao Ambedkar were to become members of the executive council in later years. The Imperial Legislative Council went from strength to strength on the lawmaking front. It had many eminent Indians as members. This included Vithalbhai Patel, Madan Mohan Malviya, Gopal Krishna Gokhale, S.N. Bannerji, and the Raja of Pratapgarh. State legislatures were also set up by the imperial government.

In 1920 the Imperial Legislative Council was further split by the Government of India Act of 1919 into the Central Legislative Assembly and the Council of State, which were the forerunners of our present bicameral legislature. Moti Lal Nehru, Lala Lajpat Rai, Madan Mohan Malviya etc. were a few of the members of these legislative bodies.

If you look at the men who inherited power as freedom fighters in 1947, you will see that many of them already had served as legislators with limited legislative powers under British rule. Some of them were genuine freedom fighters -like Ambedkar, Rai, Bannerjee and yes, the formidable lawyer, Jinnah- who had fought for the creation of these legislatures and for the right to permit no taxation without representation. However, some of these 'freedom fighters' were not really freedom fighters, but were toadies or children of toadies. It is beyond the scope of this article to pick out who they were, but feel free to criticise as long as you do not violate laws governing slander.

In 1946 the Cabinet Mission ordered the creation of the interim Indian goverment consisting of men like Nehru, Patel, Rajendra Prasad, and Liaquat Ali Khan. This was the final step under the British Raj in the progress towards a free Indian legislature.

You may also wish to read The Road to the Hindu Marriage Act: William Bentinck and/or The Road to the Hindu Marriage Act: Laws 'Enacted' in/for India during the Victorian Era (part 1) and/or The Road to the Hindu Marriage Act: Laws 'Enacted' in/for India during the Victorian Era (part 2) and/or The Road to the Hindu Marriage Act: Laws 'Enacted' in/for India during the Victorian Era (part 3) and/or The Road to the Hindu Marriage Act: The Anand Marriage Act 1909 and/or The Road to the Hindu Marriage Act: The Indian Succession Act 1925

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Published by Manish Udar

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Last updated on 20th August 2013
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