The state of things soon underwent a change. The Indian Councils Act of 1861 constituted the next landmark in the evolution of Legislative Councils in this country. It added a fifth ordinary non-official member to the Executive Council, and the power of the Secretary of State to appoint the Commander-in-Chief as an extraordinary member was continued. The powers of the Governor- General were considerably enlarged. With the sanction of his Council he could exercise all the executive powers of the Governor- General-in-Council. Further, the Act empowered him to make rules and orders for the transaction of the business of the Council. Lord Canning used this authority to introduce what is now known as the Portfolio System. By this system each member was placed in charge of one or more departments, and could finally dispose of minor matters in that department on his own authority, and matters of greater importance in consultation with the Viceroy, only the questions of general policy being referred to the Council for decision. In view of the large increase in business such a system was almost inevitable, but it resulted in a considerable diminution of the importance of the Council, and a corresponding increase in the power and influence of the Viceroy.
The legislative provisions of the Act of 1861 were far more important. For the purpose of making laws the Viceroy’s Council was enlarged by the addition of “not less than six nor more than twelve additional members”, of whom not less than half should be non-official members. These additional members were to be nominated by the Governor- General for two years.
The function of this Council was strictly limited to legislation, and the Act expressly forbade the transaction of any other business. It was empowered “to make laws and regulation for all persons whether British or native, foreigners or others, and for all places and things whatever within the said territories, and for all servants of the Government of India (afterwards extended to all British subjects) within the dominions of princes and States in alliance with Her Majesty”.
This wide legislative power was subject, however, to several restrictions. In the first place the previous sanction of the Governor- General was necessary for introducing any legislation concerning certain specified subjects, such as Public Debt, Public Revenue, Indian religious rites, Military discipline and Policy towards Indian States.
Secondly, no laws could be made which infringed the authority of the Home Government or violated the provisions of certain Acts made by the Parliament.
Thirdly, the Governor- General had not only the power of vetoing any law passed by the Council, but was authorised, in cases of emergency, to issue ordinances which should have the same authority as any law passed by the Council.
Lastly, any Act passed by the Council might be disallowed by Her Majesty.
The Act of 1861 restored to the Governments of Bombay and Madras the power of making ” laws and regulations” for the peace and good government of these Presidencies, subject, of course, to the same restrictions as put upon the Governor- General’s Council. In addition, the Provincial Councils had to obtain previous sanction of the Governor- General before making regulations on such all India subjects as currency, copyright, posts and telegraphs Penal Code, etc. For the purpose of legislation the Executive Council of the Governor was enlarged by the addition of the Advocate-General, and ” not less than four nor more than eight” members, nominated by the Governor, of whom at least half should be non-official members.
The Act authorised the Governor- General-in-Council to create similar Legislative Councils not only in the remaining provinces such as Bengal, the North-Western Provinces (now the United Provinces), and the Punjab, but also in new provinces, if any, which it was empowered to constitute. In pursuance of this a Legislative Council was established in the three provinces, in 1862, 1886 and 1898 respectively.
It must be admitted that the Act of 1861 was retrograde in many respects, and deprived the Legislative Council of any independent power. It ceased to exercise any control or check upon the Executive, and even its legislative functions were circumscribed by too many restrictions. But in spite of all its defects the Indian Councils Act of 1861 must always be regarded as a memorable one. It gave the framework to the Government of India, which it retained up to the very end, and all the subsequent changes were made within that framework. It ushered in one of the great developments that distinguished the subsequent reforms of administration in this country, viz., the admission of Indians into the higher Councils of the Government. Although not expressly provided for in the Act, there was no definition of the nonofficial element of the Legislative Council, which accordingly could include Indians. Dalhousie had urged the inclusion of Indians in the Council created by the Act of 1853, but without success. Evidently the Revolt of 1857-59 changed the views at home in this respect, and in 1862 Canning nominated the Maharaja the Raja of Benares, and Sir Dinkar Rao to the newly constituted Legislative Council.
It is not necessary to describe in detail the various legislative measures during the thirty years that followed (1861-1891). Among the notable changes may be mentioned the considerable increase of legislative authority both of the Viceroy and his Council. By the Indian Councils Act of 1870, the Governor- General-in-Council was empowered to pass regulations without reference to the Legislative Council. The same Act also repeated and more clearly defined the power of the Viceroy to override the decisions of the majority of his Council and to adopt and carry into execution or suspend or reject, even against the opinion of the majority, any measure affecting “the safety, tranquillity or interests of the British possessions in India, or any part thereof”.
The Act of 1874 provided for the addition of a sixth ordinary member to the Viceroy’s Council, “the member for Public Works”.
The same period of thirty years, however, witnessed the first great national movement in India and the foundation of the Indian National Congress, to which detailed reference will be made later. The newly-roused political consciousness of the Indians manifested itself in demands for constitutional rights formulated by the Congress. The Congress put in the forefront of its programme the reform of the Legislative Councils, both local and central, especially on the following lines:
I .The establishment of councils in provinces, other than Bengal, Bombay and Madras.
2.The expansion of the councils with a large proportion of elected members.
3.Grant of additional powers to the councils, especially the right of discussing the Budget and of eliciting information by means of interpretations.
To meet these demands, at least partially, Lord Dufferin suggested some measures to the Home Government, which led to the Indian Councils Act of 1892, another great landmark in the history of constitutional development in India.
By this Act the number of additional members, both in the Supreme and local Councils, was slightly increased, the maximum being fixed at sixteen in the case of the Supreme Council, twenty in the case of Bombay, Madras, and Bengal, and fifteen for the North Western Provinces and Oudh, where a Legislative Council had been established in 1886. The increase was much below the expectations not only of the Congress, but even of many English politicians who sympathised with the political aspirations of the Indians.
Far more important was, however, the change in the mode of appointing these members. The principle of election demanded by the Congress was not directly conceded. But the Act authorised the Governor- General-in-Council to prescribe the method of appointing the additional members, and the Government members explained, in the course of the discussion of the Bill in the House of Commons, that under this clause it would be possible for the Governor- General to provide for the election of additional members. As a matter of fact, Lord Lansdowne (1888-1894) utilised this power in having eight members of the local councils elected by Municipalities, District Boards, Chambers of Commerce, Universities, etc., and four members of the Supreme Council elected by the non-official members of the local councils.
The Act of 1892 also conceded to the members of the Legislative Councils the right of discussing the Budget and asking questions on matters of public interest.
Although the Act of 1892 fell far short of the demands made by the Indian National Congress, it was a great advance upon the existing state of things. By conceding the principle of election, and giving the Legislative Councils some control over the executive, it paved the way for further reforms on these lines which were destined to place in the hands of Indians a large measure of control over the administration of the country.
