APPENDIX B
A BRIEF COMPARATIVE STATEMENT OF THE
PRESENT INDIAN CONSTITUTION, THE MONTAGU-CHELMSFORD
SCHEME OF REFORMS
AND THE CONGRESS-LEAGUE REFORM
PROPOSALS.
THE PRESENT CONSTITUTION OF INDIA
Under the Government of India Act, 1915 (5 & 6 Geo. 5, c. 61).
I. The Secretary of State in Council
(1) His Majesty’s Secretary of State for India superintends, directs, and controls all acts relating to the government or revenues of India. He is responsible to Parliament. He or his Council has no legislative powers.
(2) The Council of India consists of 10 to 14 members, appointed by the Secretary of State for a term of seven years; and the majority of Council must sanction expenditure of revenue and certain other specified matters. In practice two of the members have been Indians since 1907.
(3) The salaries of the Secretary of State, the Under-Secretaries and the Office establishment are paid out of Indian revenues.
II. The Government of India
(1) General.—The Governor-General of India is appointed by the Crown. He has the absolute power of adopting, suspending or rejecting measures affecting safety, tranquillity and interest of India.
(2) Executive Council.—The Executive Council consists of five or six ordinary members appointed by the Crown generally for five years, with the Commander-in-chief as an extraordinary member. Governor-General in Council is the supreme autocratic authority in India in all administrative matters, and it directly administers certain Imperial Departments. One member of Council is now an Indian.
(3) Legislative Council.—For the purpose of legislation the Council consists of all Executive members with 60 additional members, of whom only 27 are elected by specified electorates by a method of indirect election. There is separate representation for Mohammedans. The Governor-General is the President of the Council.
The members of the Legislative Council can discuss the Budget, move resolutions or ask questions, but the Executive Government is not bound thereby. In other words the Legislative has no control over the purse or the acts of the Executive.
Every act of the Legislative requires the assent of the Governor-General, and the Crown may also disallow the same. Besides in cases of emergency the Governor-General has the power to promulgate laws in the shape of ordinances, without reference to the Legislative Council, on his own initiative or on the recommendation of Provincial Governments. These ordinances to be in force for six months.
MONTAGU-CHELMSFORD SCHEME OF REFORMS
I. The Secretary of State in Council
(1) His Majesty’s Secretary of State to be retained, but his salary to be transferred to British Estimates.
(2 & 3) A Committee is appointed to examine and report on the present constitution of the Council of India as well as the Office establishment. (The report of the Committee is not yet made.)
(4) The House of Commons to be asked to appoint a Select Committee for Indian affairs.
(5) Control of Parliament and the Secretary of State to be modified.
II. The Government of India
(1) General.—The Government of India to preserve indisputable authority on all matters relating to peace, order, and good Government. It is to remain fully autocratic as at present.
A Privy Council to be established in India.
(2) The Executive Council.—To continue as before with maximum limit removed, but the Indian element is to be increased to two members.
Government to be empowered to appoint a limited number of members (not necessarily elected) of the Legislative Council as Under-Secretaries, similar to Parliamentary Under-Secretaries in England.
(3) Legislative Council.—There will be two legislative Bodies. One to be called Legislative Assembly (with elected majority), and the other the Council of State (with official majority).
The Legislative Assembly is to consist of 100 members, two-thirds of whom would be elected. Of the nominated not less than one-third should be non-officials. President to be nominated by the Governor-General.
The Council of State to consist of 50 members, of whom 21 are to be elected. The Governor-General is to be the President.
Bills passed by the Assembly must also be referred to the Council of State, the differences, if any, being settled by a joint session. But in cases where the interests of peace, order and good Government, including sound financial administration, are concerned, Governor-General shall have powers to refer a Bill to the Council of State and it will become law in the form approved by the Council of State even though it is not acceptable to the Assembly.
Legislative Assembly and the Council of State may discuss the Budget, ask questions, and pass resolutions, but they are not binding on the Executive.
The Governor-General to retain his power of assenting to Acts and promulgating ordinances on his own authority. The Crown may disallow any Act.
The Montagu-Chelmsford Scheme proposes periodical (decennial) Parliamentary inquiries to revise the constitution, both for the Central and the Provincial Governments.
CONGRESS-LEAGUE REFORM PROPOSALS
I. The Secretary of State in Council
(1) The Secretary of State to be retained. But his salary to be transferred to British Estimates.
(2) The Council of India be abolished.
(3) There should be two permanent Under-Secretaries, one of whom should be an Indian. The charges of the Indian Office establishment should be transferred to British Estimates.
(4) The proposed Select Committee of the House of Commons is not objected to.
(5) The Secretary of State for India should eventually occupy the same position as the Colonial Secretary. The control of Parliament and Secretary of State be modified only with the transfer of responsibility of the Government of India to the electorate.
II. The Government of India
(1) General.—The Government of India shall have undivided authority in matters concerning Peace, Tranquillity and Defence of the Country; but subject to a Statutory Declaration of the rights of the people of India as British citizens, viz., that all Indians are equal before law, equally entitled to a licence to bear arms and to have the freedom of speech, writing, and meeting, and also the freedom of the Press, and that no one be punished or deprived of his liberty except by a sentence of a Court of Justice.
That the principle of Responsible Government should be applied to the Central Administration by dividing the subjects into (1) reserved (2) transferred. The reserved subjects to be administered by Government without popular control. The reserved subjects shall be Foreign affairs (except relations with Colonies, and Dominions), Army, Navy, and relations with Indian Ruling Princes, as well as matters affecting public peace, tranquillity, defence of the country subject to the Declarations of Rights mentioned above. All other subjects should be transferred subjects—i.e., transferred to the popular control exercised by the enlarged Legislative Assembly.
There should be no Privy Council.
(2) Executive Council.—The Executive Council shall consist partly of Ministers, from the Elected members of tie Legislative Council, and in charge of the transferred subjects; and other members nominated by the Government in charge of the reserved subjects. When there are two or more members in charge of the reserved subjects, half the number shall be Indians.
(3) Legislative Council.—There should be no Council of State, but only one Legislative Assembly composed of 150 members, four-fifths of whom should be elected directly by the people. The Franchise should be as broad as possible without distinction of sex, but with a proportional and communal representation for Mohammedans as settled at Lucknow. The Assembly should have an elected President. (The Moslem League does not object to the Council of State if at least half the members thereof would be elected).
The Legislative Assembly should have the same measure of fiscal autonomy as Self-Governing Dominions, and should control the Budget, excepting the reserved subjects, the allotment for which shall be a first charge on the Revenues. All Bills must be introduced and passed in the Assembly.
Provided that in the case of reserved subjects if the Legislative Assembly does not pass measures desired by Government, the Governor-General in Council may provide for the same by regulations. Such regulations will remain in force for one year, and shall not be renewed unless 40 per cent (two-fifths of the members) of the Legislative Assembly present and voting are in favour of them.
The Governor-General to retain his existing power of making ordinances and the Governor-General in Council the power of passing regulations. The Governor-General and the Crown to have also power of assent, reservation or disallowance.
The Congress-League scheme objects to periodical Commissions for revising the Constitution, and asks for a Statutory declaration that the transfer of responsibility should be completed in a period not exceeding 15 years, when India should be placed on a footing of equality with the other self-governing parts of the Empire.
III. The Provincial Governments
(1) General.—India, including Burma, is divided into 14 provinces, each of which has its own Provincial Government.
By a system of decentralisation, revenues are allotted to all these provinces by the Government of India. The Provincial Governments administer, under the general supervision of the Central Government, without being responsible to the Local Legislatures in any way.
(2) Executive.—Bombay, Bengal, and Madras have each a Governor sent from England and three (one of whom is, in practice, an Indian) Executive Councillors appointed by the Crown, with a Legislative Council.
Bihar and Orissa governed by a Lieutenant-Governor with Legislative and Executive Councils; United Provinces, Punjab and Burma by a Lieutenant-Governor with only a Legislative Council; Central Provinces and Assam by a Chief Commissioner with only a Legislative Council, and the remaining by Chief Commissioners without any Councils.
(3) Legislative.—The Provincial Legislative Councils enjoy limited powers for legislation in the provinces. The Governor is the President of the Council.
The elected members of the Legislative Council are elected by constituencies formed of Municipal and Local Boards, and Landlords with a separate constituency for Mohammedans. They are in a minority except in Bengal, where they have at present only a small majority. The Legislative Councils have no control over the Executive or the Budget.
The Acts of the Provincial Legislature must be assented to first by the Governor, Lieutenant Governor, or the Commissioner as the case may be, and then by the Governor-General subject always to disallowance by the Crown.
Public Services
Recruitment, examination, and other matters relating to Indian services are at present under the control of the Indian Government and the Secretary of State, with no statutory limit for recruitment in India.
Local Self-Government
Half the members of Municipalities and Local Boards are generally elected, but the bodies are under official control.
III. The Provincial Governments
(1) General.—All Provinces having Legislative Councils at present (except Burma) should have a Governor with Executive and Legislative Councils. A complete separation will be made between Indian and Provincial Revenues. Provincial Governments are to have certain powers of taxation and borrowing.
Responsible Government is to be introduced in the Provinces by a division of departments into reserved (for Government) and transferred (to popular control) subject to a revision after five years. (A Committee is appointed to settle which subjects should be transferred. The report is not yet out.)
(2) The Executive would be a kind of Diarchy, consisting of the Governor and two members (one of whom is to be an Indian) who will be in charge of the reserved subjects, and responsible only to Government; and a Minister or Ministers, nominated by the Governor from the elected members of the Council, who will be in charge of the transferred subjects and responsible not to the Legislature, but to the electors who may not elect him next time. There may also be additional members without Portfolios for the purpose of consultation.
Ministers to have no voice in decisions concerning reserved subjects or about the supply for them in the Budget.
There will be Under-Secretaries and Standing Committees from the members of the Legislative Councils to assist the Executive.
(3) Legislative Councils.—These would be practically two Provincial Legislative Bodies: (1) Legislative Council. (2) Grand Committee.
The Legislative Council will have a substantial elected majority, elected on a broad franchise with Governor as President. (A Commission is appointed to inquire into the question of franchise and the composition of the Council, but the report is not yet out.)
The Grand Committee will comprise only from 40 to 50 per cent of Legislative Council, and its members will be partly elected by a ballot and partly appointed by nomination.
All Legislation and the Budget for transferred subjects only must be passed in the Legislative Councils.
But when the Governor certifies that a bill dealing with reserved subjects is essential he may refer the Bill to the Grand Committee and have it finally passed there.
The members of the Legislative Council can ask questions and pass resolutions, but the latter are not binding on the Executive, except resolutions on the Budget for the transferred subjects.
All Provincial Legislation requires the assent of the Governor and the Governor-General, and is also subject to disallowance by His Majesty.
Public Service
Racial bars should not exist. In addition to recruitment in England a system of appointment to all public services be established in India with an increasing percentage of recruitment. In the case of Indian Civil Service the percentage should be 33 of the superior posts, with annual increment of 1½ per cent.
Local Self-Government
Complete popular control in Local Bodies to be established as far as possible.
III. The Provincial Governments
(1) General.—There should be a complete separation of the Provincial from the Imperial Revenues. All Provincial Governments should have certain powers of taxation and borrowing.
(2) Executive.—Full responsible Government should be introduced into the Provinces. The Executive will thus consist of the Governor and Ministers responsible to the Legislature. There should be no distinction of transferred or reserved subjects.
(3) Legislative.—There should be only one Legislative Council, having four-fifths of its members elected on a broad franchise without distinction of sex, but with a proportional and communal representation for the Mohammedans. The Legislative Council should elect its own President, and must have control over the Budget. All Bills must be introduced and passed in this Legislative Council.
The Governor to retain his power of assent, and the Governor-General and the Crown the power of assent or disallowance.
Public Services
Services should be recruited in India in a fixed and progressive proportion. The annual recruitment in India for the Indian Civil Service should be 50 per cent to start with, and that Indians be granted at least 25 per cent of the Commissions in Army and the proportion be gradually increased. There should be no racial distinctions.
Local Self-Government
Municipal and Local Bodies should be completely under popular control.
APPENDIX C
REPORTS OF COMMITTEES ON FRANCHISES
AND DIVISION OF FUNCTIONS
(London Times May 13, 1919)
The reports of the two Committees which sat in India from early in November to the end of February last to fill out the framework of the Montagu-Chelmsford Report published last July were issued last night.
The Franchise Committee, of which Lord Southborough was chairman, recommend a scheme of territorial constituencies, urban and rural, the latter based on the existing land revenue districts, together with communal representation for Mohammedans and Sikhs (as contemplated in the original scheme) and for Indian Christians, Europeans, and Anglo-Indians: and the representation of special interests, including commerce and industry.
The other Committee, of which Mr. R. Feetham was chairman, make detailed recommendations as to the division of functions between the Government of India and the provincial Governments, and also between “reserved” and “transferred” subjects in the provinces. Proposals are made for the modification in some important respects (notably in the powers conferred on the Governor) of the “diarchial” system in the provinces set forth in what is conveniently called the “Joint Report.”
As was indicated in The Times on April 5, Lord Southborough’s Committee have not accepted the appeals addressed to them in the interest of woman suffrage. They found it advocated “rather on general grounds than on considerations of practicability.” They are satisfied that the social conditions of India would make such a step now premature. They are of opinion, however, that at the revision of the constitutions of the councils proposed in the Joint Report 10 years after their reconstitution the matter should be reconsidered in the light of the experience gained and of social conditions as they then exist.
Franchise Qualifications
The general proposals for the franchise are based upon the principle of residence and the possession of certain property qualifications. In addition the enfranchisement of all retired and pensioned officers of the Indian Army, whether of commissioned or non-commissioned rank, is recommended. This step was universally and strongly recommended in the Punjab, and it is to extend to all provinces. The property qualification is adapted to local conditions and is guided by the principle that the franchise should be as broad as possible, consistently with the avoidance of any such inordinate extension as might lead to a breakdown of the machinery of election through weight of numbers. The large proportion of illiterate voters, in the absence of a literary test, may cause difficulty, but it has already been faced successfully in municipal elections in India by the use of coloured ballot-boxes and other like devices.
No rigid uniformity of property qualification has been sought, but the committee have proposed the same qualification for all communities within the same area. A substantially higher proportion of the urban than of the rural population will be enfranchised. At present the total number of electors for the provincial councils is 33,007, and of these no fewer than 17,448 are Mohammedans, since that community enjoys direct representation on an individual basis. The number of voters will be raised under the scheme to 5,179,000, being 2.34 per cent of the total population in the eight provinces, which is nearly 220,000,000.
The long established administrative unit of the “district” is made the territorial area for constituencies but the relatively few cities with large populations are to be separately represented. Occasionally towns are grouped into separate urban constituencies. Single-member constituencies are the general rule, but latitude is left to the local Governments. Plural voting is to be forbidden, but this does not apply to electors in constituencies formed for the representation of special interests.
Special Communities
In conformity with the recognition of the Joint Report that separate Mohammedan representation cannot be abandoned, the scheme provides for Mohammedan constituencies. The compact of the joint session of the National Congress and the Moslem League at Lucknow in December, 1916, is accepted as a guide in allocating the proportion of Mohammedan seats. In the Punjab this facility is to be extended to the Sikhs. Beyond this the framers of the Joint Report did not propose to go; but Lord Southborough’s Committee recommend separate electorates, where the numbers justify that course, for Indian Christians, Europeans, and the domiciled “Anglo-Indians”—i.e., country-born Europeans and Eurasians. It is observed that candidates belonging to these communities would have no chance of being elected by general constituencies. The hope is expressed that it will be possible “at no very distant date to merge all communities into one general electorate.”
Other claims for separate electorates are not conceded. Regret is expressed that the organized non-Brahmans of the Madras Presidency refuse to appear before the Committee. It is pointed out that there the non-Brahmans (omitting the depressed or “untouchable” classes) outnumber the Brahmans by about 22 to one; and on the basis of enfranchisement taken in Madras the non-Brahmans would be in the proportion of four to one. It is held to be unreasonable to adopt the proposed expedient for a community which has an overwhelming electoral strength.
The alternative of reserving a considerable number of seats for non-Brahmans in plural member constituencies did not commend itself to a section of the non-Brahmans, though evidence went to show that such a proposal might be accepted by the Brahmans “if it were the price of an enduring peace.” It is suggested that his Majesty’s Government might afford the parties to the controversy an opportunity, before the electoral machinery for the Presidency is completed, of agreeing upon some solution—e.g., the provision of plural member constituencies and of a certain proportion of guaranteed non-Brahman seats.
The separate representation of zamindars and landholders granted under the Morley-Minto scheme is extended and provision made for university seats. The election by accredited bodies of representatives of commerce and industry is also continued and amplified. There is to be nomination for the representation of the “depressed classes,” for in no case was it found possible to provide an electorate on any satisfactory system of franchise. Labour is to be represented by nomination where the industrial conditions seem likely to give rise to labour problems. The majority of the Committee are of opinion that dismissal from Government service should constitute a bar to candidature if it has taken place in circumstances which, in the opinion of the Governor in Council, involve moral turpitude; but Lord Southborough, Mr. S. N. Bannerjea, and Mr. Sastri dissent, considering it improper to limit the choice of the electorate by a disqualification based on the decision of an executive authority.
The size of the Provincial Legislatures will vary from 53 in Assam to 125 in Bengal. The eight Councils will comprise 796 members, made up as follows:—
Elected by general constituencies, 308.
By communities, 185.
By landholders, 35.
By universities, 8.
By commercial, industrial, and planting interests, 45.
The nominated representatives will number 47, and the officials, 128.
The “All-India” Body
For the Indian Legislative Assembly, the Committee propose 80 elected members, instead of the 68 suggested in the Joint Report. Fourteen representatives appointed by nomination and 26 officials (including seven ex-officio members) will bring up the total, exclusive of the Governor-General, to 120, as compared with 68 at present. A statement of the manifold difficulties in the way of direct election for this All-India body leads to the conclusion that there must be indirect election for all general and communal seats by the members of the Provincial Legislatures. “We trust that, in progress of time, a growing sense of political organization will enable indirect election to be superseded by some direct method.”
A scheme for the creation of the “Council of State” on the lines of the Joint Report is set forth, on the basis of election thereto by non-official members of the Provincial Councils. There would be 24 elected and 32 ex-officio or nominated members, exclusive of the Governor-General. The electors should be left free to choose any person qualified to be a member of a Provincial Legislature.
THE DIVISION OF FUNCTIONS
The first duty of Mr. Feetham’s Committee was to consider what were the services to be appropriated to the provinces, all others remaining with the Government of India. The Committee proceeded on the basis that there is to be no such statutory demarcation of powers as to leave the validity of Acts passed to be challenged in the Courts. In other words, no alteration is proposed in the system under which the All-India Legislature as regards British India, and each of the Provincial Legislatures as regards its own province, have in theory concurrent jurisdiction over the whole legislative field.
In framing the lists the Committee have treated as All-India subjects certain large general heads, such, for instance, as commerce and laws regarding property, but have taken out of these and allotted to the provinces important sections—e.g., in the case of the first Excise, and in the case of the second laws regarding land tenure. Any matter included in the provincial list is to be deemed to be excluded from any All-India subject of which otherwise it would form part. Subjects not expressly included in either list are regarded as All-India subjects, but the Governor-General in Council may add to the provincial list “matters of merely local or private interest within the province.” It is claimed that the scheme has been devised on such a basis as to leave the way open for the process of development.
The list of subjects to be transferred to Indian Ministers is on the whole more extensive than the suggested list attached to the Joint Report. With certain reservations University education is to be transferred, as well as primary, secondary, and technical, on the ground that the educational system must be regarded as an organic whole. But European and Anglo-Indian education, which is organized on a separate basis is excluded from the transfer.
The decision of the functions of the Provincial Government, popularly known as diarchy, has been criticized as likely to lead to friction, and sometimes to deadlock. To mitigate these difficulties, the Committee propose important changes in the relations of the Governor with both sections of the Government. It is to be the duty of the Governor in Council in the case of reserved departments, and of the Governor and Ministers in the case of transferred departments, to take care that the administration is so conducted as not to prejudice or occasion undue interference with the working of any department falling in the other category. The Governor has to decide whether a particular matter falls within the scope of a reserved or a transferred department, and to take care that any order given by the Governor-General in Council is complied with by the department concerned.
Governor’s Increased Powers
In the case of disagreement between the Executive Council and Ministers as to action which appears to the Governor to affect both a reserved and a transferred department, the Governor is to give such decision as the interests of good government may seem to require, provided that, in so far as circumstances admit, before such decision is given the matter should be considered by both sections of the Government sitting together. If the Minister remains obdurate, it will be for the Governor to dismiss and find another Minister.
If, owing to a vacancy, there is no Minister in charge of a transferred department, the Governor will certify that such emergency exists and that immediate action is necessary. On such certificate being given, the Governor in Council will have authority to take action, subject to the obligation of reporting to the Governor-General in Council. In other words there will be re-entry for a temporary and limited purpose during an interregnum. This is a considerable departure from the proposal of the Joint Report that Ministers shall hold office for the lifetime of the Legislative Council. The power of the Governor to dismiss a Minister, says the report, “seems essential if deadlocks are to be avoided.” The over-ruling of a minister will depend in the last resort on the Governor’s personal judgment of the situation.
Finance
The Committee felt themselves precluded from considering any modification of the proposals of the Joint Report for the separation of the finances of the Government of India and of Provincial Governments. No opinion is expressed on memoranda received at a late stage from Sir James Meston making proposals for substantial departure from the plan of dealing with provincial finance set forth in the Joint Report.
It may be recalled that Mr. Montagu and Lord Chelmsford proposed that, if the residue of the provincial revenues is not sufficient, it should be open to Ministers to suggest fresh taxation. The Committee take the view that when any new provincial tax or any proposed addition to an existing tax requires legislation to give effect to it, the decision whether that legislation should be undertaken must rest with the Governor and Ministers. Since the whole balance of the revenues of the province will be at the disposal of the Ministers for the administration of the transferred departments, the Committee consider that when an existing tax cannot be reduced or remitted without legislation, the decision whether legislation should be undertaken must also rest with the Governor and Ministers. To that extent taxation for provincial purposes should be regarded as a transferred subject.
The assessment or collection of the tax would be reserved or transferred, according as the agency employed belonged to a reserved or to a transferred department. The view is also taken that, when alterations in taxation can be effected without any change in the law, the decision whether any alteration should in fact be made must be recognized as resting with the Governor in Council if the department is reserved, and with the Governor and Ministers if it is transferred.
In respect to the powers of borrowing on the sole credit of provincial revenues which are to be conferred, the Committee propose that, if after joint deliberation there is a difference of opinion between the Executive Council and the Ministers, the final decision whether a loan should be raised and as to the amount of the loan must rest with the Governor.
The Public Services
Detailed proposals are made in relation to the public services, to be classified as Indian (All-India), provincial and subordinate, No service is to be included in the first of these categories without the sanction of the Secretary of State, while the demarcation between the provincial and subordinate services is to be left to the provincial Governments.
General approval is given to a scheme prepared by the Government of India providing that legislation should be undertaken in Parliament to declare the tenure and provide for the classification of the public service. It should secure the pensions of the All-India services, and should empower the Secretary of State to make rules for their conduct and rights and liabilities, and to fix their pay and regulate their allowances. Similar legislation should be passed by the Government of India in respect to the provincial services, and to empower the provincial Governments to make rules for the subordinate services. The Committee does not express any opinion on the proposal of the Government of India to set up a statutory Public Service Commission on lines somewhat wider than those of the Civil Commission in Great Britain.
Among the clauses suggested for insertion in the instructions for each provincial Governor is one enjoining him to “protect all members of the public services in the legitimate exercise of their functions and enjoyment of all recognized rights and privileges.”
The instructions are to charge him with the duty of safeguarding the legitimate interests of the Anglo-Indian or domiciled community, and “to take care that no change in educational policy, affecting adversely Government assistance afforded to existing institutions maintained or controlled by religious bodies, is adopted without due consideration.” The Governor is also to be instructed that he “shall not sanction the grant of monopolies or special privileges to private undertakings which are inconsistent with the public interest, nor shall he permit any unfair discrimination in matters affecting commercial or industrial interests.”