The Indian Councils Act, 1909

Author(s): Courtenay Ilbert

Source: Journal of the Society of Comparative Legislation , 1911, Vol. 11, No. 2 (1911),
pp. 243-254
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law

Stable URL: https://www.jstor.org/stable/752520

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 THE INDIAN COUNCILS ACT, 1909o.
[Contributed by SIR COURTENAY ILBERT, K.C.B., K.C.S.I.]

THE Indian Councils Act, 1909 (9 Ed. VII. c. 4), the passage of which will
always be associated with the name of Lord Morley of Blackburn, made
important changes in the constitution and functions of the Indian legislative
councils, and gave power to make changes in the executive governments of
the Indian provinces.
The introduction of the measure was preceded by discussions and
correspondence, which began in Lord Morley's first year of office as Secretary
of State for India, and extended over a period of nearly three years.
In 19o6 the Viceroy, Lord Minto, drew up a minute in which he reviewed
the political situation in India, and pointed out how the growth of education,
encouraged by British rule, had led to the rise of important classes claiming
equality of citizenship, and aspiring to take a larger part in shaping the policy
of the government. He then appointed a committee of his council to
consider the group of questions arising out of these novel conditions. From
the discussion thus commenced was developed a tentative project of reform,
which was outlined in a Home Department letter to local governments dated
August 24, 1907. This letter, after having received approval by the Secretary
of State in Council, was laid before Parliament, and was published in England
and India.2 The local governments to whom it was addressed were instructed
to consult important bodies and individuals representative of various classes
of the community before submitting their own conclusions to the Government
of India. The replies were received in due course, and are to be found in
the "colossal blue-books" appended to a letter from the Government of
India, dated October I, 19o8, in which the situation is again reviewed, and
revised proposals are formulated. The views of the Secretary of State on
these proposals are expressed in a dispatch dated November 27, 1908,3 and
were expounded by Lord Morley in a speech delivered in the House of Lords
on December 17, 1908.
I This article is taken from a supplementary chapter to the second edition of the author's
Government of India. The chapter, which contains corrections and additions, bringing
the book up to date, was published by the Clarendon Press in Ig9o, and may be obtained
either separately or bound up with the volume to which it is appended.
2 East India (Advisory and Legislative Councils, etc.), 1907, Cd. 371o.
S The letter of October I, 1908, and the dispatch of November 27, 9go8, are to be
found in voL i. of the blue-book entitled East India (Advisory and Legislative Councils,
etc.), 19o8, Cd. 4425. The replies from the local governments are embodied in separate
volumes.

243

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 244 THE INDIAN COUNCILS ACT, 1909.

Reference was made to the subject in the King's Speech which

the session of 1909, and in the debates on the address in rep
embodying the proposals of the Government, so far as they requ
mentary authority, was presented by Lord Morley on February
was read a second time, after a debate of two days, on Febr
passed through committee on March 4, and was considered on re
third time, and passed by the House of Lords on March 9. In
Commons the Bill was read a second time on April i, was co
committee on April 19, and on April 26 was considered on re
third time, and passed with amendments. The Commons' amendm
considered on May 4 and agreed to with an important modification
accepted by the Commons. The Act thus passed received the R
on May 25, 1909-
The only important change in the Bill during its passage thro
ment related to the creation of executive councils for prov
lieutenant-governors. Clause 3 of the Bill as introduced e
Governor-General in Council, with the approval of the Secretary
Council, by proclamation, to create an executive council for any su
This clause was struck out by the House of Lords, restored by th
Commons, and eventually agreed to in the modified form in whi
stands as s. 3 of the Act.
In the course of the debates on the Bill much was said about Lord
Morley's announcement of his intention to appoint a native of India to a
on the Governor-General's council. This subject was not strictly relevant
the Bill, because, as was explained, the power of making these appointmen
is free from any restriction as to race, creed, or place of birth. Effect w
given to Lord Morley's intention by the appointment of Mr. Sinha, in Ma
1909, to the post of law member of the Governor-General's council. T
appointment carried a step further the policy adopted in 1907, when
natives of India were placed on the Secretary of State's council. In pu
suance of the same policy a native of India has been placed on the executiv
councils for Madras and Bombay respectively, and is to be placed on
new executive council for Bengal.
Under s. I of the Act the " additional" members of the Indian legislativ
councils, i.e. those other than the members of the executive councils, mus
instead of being all nominated, include elected members.
By s. 2 power is given to raise the number of members of the executiv
councils for Madras and Bombay to a maximum of four, of whom two at le
must be persons who at the time of their appointment have been in the serv
of the Crown in India for at least twelve years.
Under s. 3 there is power to constitute an executive council for an
province having a lieutenant-governor. But, except in the case of Beng
the draft of any proclamation proposed to be made in pursuance of this pow
must be laid before each House of Parliament, and the proclamation may b

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 THE INDIAN COUNCILS ACT, 1909. 245

disallowed in pursuance of an address from either House.

the executive council must not exceed four.1
S. 4 requires the appointment of vice-presidents of the seve
By s. 5 the Governor-General in Council, the governor
Madras and Bombay, and the lieutenant-governors or lieutena
council of other provinces are required to make rules authorisi
ing of their respective legislative councils the discussion of the
statement, and of any matter of general interest, and the aski
Under ss. i and 6 there is extensive power to make regulation
the Act into effect.
And under s. 7 certain proclamations, regulations, and rule
to be laid before Parliament when made.
It will be seen that the provisions of the Act of 1909 are, as is usual in
Acts relating to India, couched in wide and general terms, leaving all details,
and some important matters of principle, to be determined by regulations and
rules made by the authorities in India.
The regulations and rules required to give effect in the first instance to the
Act of 1909 are to be found in a blue-book which was laid before Parliament
in pursuance of s. 7 of the Act.2
The blue-book begins with a notification fixing November 15, 1909, as the
date at which the provisions of the Act were to come into operation.
Then follow, under the headings Nos. II. to IX., regulations and rules for
the nomination and election of the members of the several legislative councils
of India, other than those who are such members by virtue of being members
of the executive councils. The regulations are, in the case of each council,
of a general character, and relate to such matters as number, qualifications,
term of office, and mode of filling vacancies. The rules, which are scheduled
to the regulations, are more detailed, and prescribe the mode in which the
several elections are to be made.
In No. X. are to be found important rules regulating the business of the
Governor-General's legislative council, and relating to (i) the discussion
of the annual financial statement, (2) the discussion of matters of general
public interest, and (3) the asking of questions.
No. XI. is a Home Department resolution of the Government of India,
dated November 15, i909, which describes in general terms the nature of the
changes made by the Act of g909, and the regulations under it, and has
appended to it a table showing the constitutions of the several legislative
councils.
The changes made in the legislative councils by the Act of 1909, and the
regulations and rules under it, may be considered under the heads of (a)
Constitution and (b) Functions.

An executive council of three members is being constituted for Bengal.

2 East India (Executive and Legislative Councils) Regulations, etc., for giving effect to
the Indian Councils Act, 1909 (1910, Cd. 4987).

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246 THE INDIAN COUNCILS ACT, 1909.

A.-CONSTITUTION.

The constitution of the councils is changed in three respects:

i. Numbers;
2. Proportion of official and non-official members;
3. Methods of appointment or election.

I. NUMBERS.

The Indian Councils Act, 1892, increased the size of the legis-
lative councils constituted under the Act of i86i. The maximum
of additional members was raised from 12 to 16 in the Governor-General's
council, and from 8 to 20 in the Madras and Bombay councils. The limit of
number of the Bengal council was raised to 20, that of the United (then
North-Western) Provinces to 15. The Punjab and Burma obtained legislative
councils in 1897, and Eastern Bengal and Assam in 1905, the maximum
strength being fixed at 15 in the first two, and 20 in the third.
These numbers are now doubled or more than doubled. The additional
members of the Governor-General's council are to be not more than 60,
the additional members of the councils of Madras and Bombay, and the
members of the councils of Bengal, the United Provinces, and Eastern
Bengal and Assam, are to be not more than 50. In Punjab and Burma th
maximum is raised to 30. In computing the number of members of the
Governor-General's council, 8 must be added to the "additional " members,
namely, the 6 ordinary members of the executive council, the commander-in-
chief, and the lieutenant-governor of the province in which the counci
sits. Similarly there are now on the Madras and Bombay legislative councils
4 ex-oficio members, namely, in each case, the 3 members of the executive
council and the advocate-general; and on the Bengal legislative council
there will be the 3 ordinary members of the new executive council.
Thus the actual strength of the legislative councils under the new law is
as follows : 1

Legislative Council of- Number tions

underofRegula- Maximum
90o9. Act of gog9.number under

India . . . . . . . . 68 68
Madras . ...... 48 54
Bombay . ...... 48 54
Bengal . . . . . 53 53
United Provinces . . . . 48 50
Eastern Bengal and Assam . . . 42 50
Punjab ....... 26 30
Burma .. ......17 30

' Excluding in each case

Governor, or Lieutenant-Go

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 THE INDIAN COUNCILS ACT, 1909. 247

2. PROPORTION OF OFFICIAL AND NON-OFFICIAL MEMBE

Under the Act of 1861 at least one-half of the additional m

legislative councils of the Governor-General's council and
Madras and Bombay, and at least one-third of the membe
legislative councils, must be non-official. An official ma
required by statute, but in practice was always maintained be
1909, except in Bombay, where the official members had been
in a minority.
Under the regulations of 1909 there must be an official m
Governor-General's legislative council, and a non-official
the other legislative councils. The existing proportions, a
regulations, are as follows:

Legislative Council of- Officials. Non-Officials. Majority.

Official.
India . . . . . . 36 32 4
Non-official.
Madras ..... 20 26 6
Bombay . . . . . I8 28 Io
Bengal 20 31 II
United Provinces 20 26 6
Eastern Bengal and Assam. 17 23 6
Punjab Io 14 4
Burma 6 9 3

These figures e
Governor-Gen
out of account t
to time as occas
Any alteration
proportions.
It will be observ
by statute. Th
by the Secretary
maintain an off
necessary or d
provincial coun
of the power ve
part of India. U
reserved to the head of the Government.

I There is no provision for the appointment of experts, as such, on the Governor-

General's legislative council, but experts could be placed on the council, when occasion
requires, under his powers of nominating members.

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248 THE INDIAN COUNCILS ACT, 1909.

3. METHODS OF APPOINTMENT OR ELECTION.

Under the Act of i861 the "additional" members of the le

councils were nominated by the Governor-General, Governor, or L
Governor, the only restriction on his idiscretion being the requir
maintain a due proportion of unofficial members.
By the Act of 1892 the nominations were required to be in
with regulations made by the Governor-General in Council and ap
the Secretary of State. Under the regulations so made a certa
of these nominations had to be made on the recommendation o
persons, bodies, and associations, the intention being to give a rep
character to the persons so nominated. There was no obligation
the recommendation, but in practice it was never refused. In
other nominations regard was to be had to the due and fair repre
of the different classes of the community.' Under the Act of
additional members must include not only nominated member
members elected in accordance with regulations made under the A
regulations of November 1909 give effect to this requirement.
There is a separate set of regulations for every legislative
and scheduled to each set are detailed rules as to the method of
election.

The provisions of the regulations themselves are of a more general

character, and those framed for the Governor-General's council may be
treated as typical.
They begin by fixing the number of" additional" members, classifying
them as elected or nominated, describing in general terms the classes or
bodies by whom the elected members are to be elected, and defining
by reference to the schedules the constitution of the electorate and the
method of election.
The substitution of a system of election for a system of nomination
obviously involves the imposition of certain disqualifications for election.
These qualifications are laid down for the Governor-General's council by
Regulation IV., which provides that-
No person shall be eligible for election as a member of the Council if such
person
(a) is not a British subject; or
(b) is a female; or
(c) has been adjudged by a competent civil Court to be of unsound
mind ; or
(d) is under twenty-five years of age; or
(e) is an uncertificated bankrupt or an undischarged insolvent; or
(f) has been dismissed from the Government service; or

See Government ofIndia, pp. II5, 116, 19.

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 THE INDIAN COUNCILS ACT, 909o. 249

(g) has been sentenced by a criminal Court to imprison

an offence punishable with imprisonment for a term exc
six months, or to transportation, or has been ordered
security for good behaviour under the Code of Criminal
Procedure, such sentence or order not having subsequently been
reversed, or remitted, or the offender pardoned; or
(k) has been debarred from practising as a legal practitioner by order
of any competent authority; or
(i) has been declared by the Governor-General in Council to be
of such reputation and antecedents that his election would, in the
opinion of the Governor-General in Council, be contrary to
the public interest.
But in cases (f) (g) (h) and (i), the disqualification may be removed by
an order of the Governor-General in Council in that behalf.
Identical provisions are embodied in all the other sets of regulations,
except that the powers exercisable by the Governor-General in Council
may be exercised by the Governor in Council or Lieutenant-Governor.
The positive qualifications both of electors and of candidates are fixed
by the scheduled rules, but by the regulations females, minors, and persons
adjudged to be of unsound mind are disqualified from voting.
Every person elected or nominated must, before taking his seat, make an
oath or affirmation of his allegiance to the Crown.
The ordinary term of office of an "additional" member, whether
nominated or elected, is three years. But official members and members
nominated as being persons who have expert knowledge of subjects con-
nected with proposed or pending legislation are to hold office for three years
or such shorter period as the Governor-General may at the time of nomination
determine. A member elected or nominated to fill a casual vacancy sits only
for the unexpired portion of his predecessor's term. The effect of these
provisions, which are repeated in substance in all the sets of regulations,
is that for elected members of the legislative councils there must be a general
election every three years.
The regulations provide for declaring seats vacant, for choice or
determination of seat in case of a candidate elected by more than one
electorate, and for the case of failure to elect.
An election is declared to be invalid if any corrupt practice is com-
mitted in connection therewith by the candidate elected, and provision is
made for the determination of disputes as to the validity of elections.
The elaborate rules scheduled to the regulations under the Act of 1909
show the number and diversity of the electorates to the legislative councils,
and the variety of methods adopted for constituting the electorates, and
for regulating their procedure in elections. The object aimed at was to
obtain, so far as possible, a fair representation of the different classes and
interests in the country, and the regulations and rules were framed for this
I?

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250 THE INDIAN COUNCILS ACT, 1909.

purpose in accordance with local advice, and with reference to

conditions of each province. The consequent variety of the rul
impossible to generalise their provisions or to summarise their con
of them may be regarded as experimental, some of them are
temporary and provisional. For instance, it has not yet been
practicable to constitute satisfactory electorates (i) for the represen
Indian commerce, except in the Bombay council, (2) for the repres
of the Punjab landholders and Muhammadans on the Governor
council, or (3) for the representative of the planting commun
Bengal council. Under the existing regulations each of these
is represented by nominated members, but election is to be su
for nomination as soon as a workable electorate can be formed.
The most difficult of the problems to be faced was the represe
Muhammadans, who claimed to be represented as a separate c
community. This problem has been attacked in various ways. O
adopted is a system of rotation. The representative of the Bom
holders on the Governor-General's council was elected at the fi
is to be elected at the third and subsequent alternate election
landholders of Sind, a great majority of whom are Muhammad
at other elections he is to be elected by the Sardars of Gujerat or
of the Deccan, a majority of whom are Hindus. In the Punjab the n
of the Muhammadan and non-Muhammadan landholders are ab
and the representative of this constituency is expected to be alter
Muhammadan and a non-Muhammadan. When these two seats, the
seat and the Punjab seat, are held by non-Muhammadans, the
be two members elected by special electorates consisting of Mu
landholders in the United Provinces and in Eastern Bengal an
respectively.
In some provinces there are special interests, such as the tea
industries in Eastern Bengal and Assam, and the planting com
in Madras and Bengal, for whom special provision has been made.
The representation of smaller classes and minor interests will h
met by nomination, in accordance with the needs of the tim
importance of different claims.
Where the electorates are scattered, as in the case of the landho
the Muhammadans, provision is made for the preparation and pub
electoral rolls containing the names of all persons qualified to vote.
The qualifications prescribed for electors in the case of landhold
Muhammadans vary greatly from province to province. Landholde
usually possess a substantial property qualification. In some cases t
honorary distinctions, fellowships of Universities, and pensions fo
service are recognised as qualifications.
The qualifications for candidates are, as a rule, the same as
electors, but in some cases, where such restrictions would be inapp

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 THE INDIAN COUNCILS ACT, 1909. 25r
other qualifications are prescribed. Thus a person elected to the Governor-
General's council by the unofficial members of a provincial council is
required to have a place of residence within the province, and such
practical connection with the province as qualifies him to represent it.
The election is either direct, or indirect through elected delegates. In
some cases the electors or delegates vote at a single centre before a
returning officer, in others they vote at different places before an attesting
officer, who dispatches the voting paper to the returning officer.
In Bengal each delegate has a varying number of votes, the number
depending in the case of district boards and municipalities on the income
of these bodies, and in the case of the Muhammadan community on the
strength and importance of the Muhammadan population of a district or
group of districts. Elsewhere the same object has been obtained by vary-
ing the number of delegates on like grounds, each delegate then having
one vote.

The member of the Governor-General's council chosen to repre

Muhammadan community of Bombay is elected by the Muha
members of the Bombay council. The Government of India w
that this method would secure better representation than el
delegates ad hoc.
The procedure for voting is generally similar to that prescribe
English Ballot Act. But in some cases, such as the elections by the
corporations of the presidency towns, the chambers of commerce and the
trade associations, the voting is regulated by the procedure usually adopted
by these bodies for the transaction of their ordinary business.

B.-FUNCTIONS.

The functions of the legislative councils fall into three d

(a) legislative, (b) deliberative, and (c) interrogatory.

(a) LEGISLATIVE.

The Act of 19o09, and the regulations under it, make no altera
legislative functions and powers of the provincial councils. Th
mainly regulated by the Act of 1861.1

(b) DELIBERATIVE.

Between 1861 and 1892 the powers of the legislative councils w

fined strictly to legislation.2 The Act of 1892 introduced no
functions by empowering the head of the government in every
rules authorising the discussion of the annual financial statemen
that no member might propose a motion or divide the council. U

I See Digest, ss. 63-7, 76-8. 2 See Digest, ss. 64, 77.

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252 THE INDIAN COUNCILS ACT, 1909.

power one or two days were allotted annually in every coun

discussion of a budget already settled by the executive governmen
The Act of 1909 repealed the provisions of the Act of 1892 on
and required rules to be made authorising at any meeting of the
councils the discussion of the annual financial statement and of an
general public interest.'
The rules made under this direction introduce two important
(i) The discussion of the budget is to extend over several days,
place before the budget is finally settled, and members have t
propose resolutions and to divide the council upon them :
(ii) At meetings of the legislative councils matters of gene
importance may be discussed, and divisions may be taken on
proposed by members.
In each case the resolutions are to take the form of recommend
the government, and the government is not bound to act upon the
The rules framed for the Governor-General's council are print
blue-book of 1910,2 and are of much interest and importance.
useful to summarise here some of their leading provisions.
Financial Statement or Budget.-The rules distinguish betw
financial statement and the budget. The first means the pr
financial estimates of the Governor-General in Council for the f
next following. The second means the financial statement as fina
by the Governor-General in Council. On a day appointed in ea
the Governor-General, the financial statement, with an explanato
andum, is to be presented to the council by the finance me
a printed copy is to be supplied to each member. No discuss
place on this day.
The first stage of discussion takes place on a subsequent day
finance member has made any explanations he thinks necessa
day any member may move any resolution entered in his name i
business relating to any alteration in taxation, new loan, or addit
to local governments proposed or mentioned in the financial
or explanatory memorandum, and a discussion takes place on any
so moved.
The second stage of discussion begins after these resolutions have been
disposed of. The member of council in charge of a department explains the
head or heads of the financial statement relating to his department, and
resolutions may then be moved and discussed.
The range of discussion is subject to important restrictions. There is a
schedule to the rules defining which heads of the financial statement are open
to or are excluded from discussion. Among the excluded heads are military,

1 8 Edw. VII. c. 4, s. 5. 2 I9io, Cd. 4987.

3 The rules for the other councils are not included in the blue-book, but are framed
on similar lines.

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 THE INDIAN COUNCILS ACT, 1909. 253

political, and purely provincial affairs, under the heading "reven

customs, assessed taxes, and courts, and, under the heading " exp
assignments and compensations, interest on debt, ecclesiastical ex
and state railways. Besides these the rules themselves exclud
cussion any of the following subjects :

(a) Any subject removed from the discussion of the Go

General's legislative council by s. 22 of the Indian Act, 1
(b) Any matter affecting the relations of His Majesty's Gov
or of the Governor-General in Council with any foreign
any native State in India; or
(c) Any matter under adjudication by a court of law having j
in any part of His Majesty's dominions.

Any resolution moved must comply with the following conditio

(a) It must be in the form of a specific recommendation add
the Governor-General in Council;
(b) It must be clearly and precisely expressed and mus
definite issue;
(c) It must not contain arguments, inferences, ironical expr
defamatory statements, nor refer to the conduct or
of persons except in their official or public capacity;
(d) It must not challenge the accuracy of the financial state
(e) It must be directly relevant to some entry in the financ
ment.

Two clear days' notice of any resolution must be given. The president
may disallow any resolution or part of a resolution without giving any reason
other than that in his opinion it cannot be moved, or that it should be moved
in a provincial council, and his decision cannot be challenged.
The budget as finally settled must be presented to the council on or
before March 24 by the finance member, who then describes any changes
made in the figures of the financial statement, and explains why any resolu-
tions passed by the council have not been accepted. No discussion takes
place on this day, but on a subsequent day there is to be a general discussion
at which observations may be made, but resolutions may not be moved.
Nor is the budget as a whole to be submitted to the vote of the council.
Many of the rules for regulating procedure in debate are of a kind with
which members of the House of Commons are familiar, but some of them
present distinctive features. No speech may exceed fifteen minutes, except
those of the mover and the member in charge, who may speak for thirty
minutes. Any member may send his speech in print to the secretary not
less than two clear days before the day fixed for the discussion of a resolu-

I.Le. matters which the Governor-General in Council has not power to repeal or affect
by any law. See Digest, s. 63.

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254 THE INDIAN COUNCILS ACT, 1909.

tion, with as many copies as there are members, and one cop
supplied to every member. Any such speech may at the discret
president be taken as read.
Matters of General Public Interest.-Discussions on these matters
raised by resolution, and must take place after all the other busine
day has been concluded. The general rules regulating the for
resolutions, and the discussions upon them, are, in the main, th
those for the discussion of resolutions on the financial statement,
difference being that the range of discussions is wider and that am
are allowed. The only subjects specifically excluded from discu
those belonging to the three classes mentioned above in connection
financial statement, namely, matters for which the councils cannot
matters relating to foreign and native States, and matters under ad
by a court of law. But the president has the same discretion
of disallowing resolutions as he has in the case of resolutions on the
statement.

The right to move amendments on resolutions is made subject t

restrictions which are intended to provide safeguards against abuse of th
right. Fifteen days' notice of a resolution is required, and priority depen
on the time of receipt. When a question has been discussed, or a resoluti
has been disallowed or withdrawn, no resolution or amendment rais
substantially the same question may be moved within one year.

(c) INTERROGATORY.

Since I892 members of the legislative councils have had the right to a
questions under conditions and restrictions prescribed by rules. This rig
is now enlarged by allowing a member to put a supplementary question "
the purpose of further elucidating any matter of fact regarding wh
request for information has been made in his original question." But
president may disallow a supplementary question, and the member to wh
it is addressed may decline to answer it without notice. The rules w
now govern the asking of questions in the Governor-General's cou
are printed in the blue-book of I9 to.
The quorum for the transaction of business, legislative or other, at me
ings of the Governor-General's legislative council is fixed by one of
regulations of November 15, 90o9, for the constitution of that cou
Regulation XIII. provides that, in addition to the Governor-General, Presid
Vice-President, or other member appointed to preside, there must be pres
fifteen or more members of the council, of whom eight at least mu
additional members. There are similar provisions in the regulations for
other councils.

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