Early Constitutional Reforms in India

Report on Indian Constitutional Reforms by Edwin S. Montagu and Lord Chelmsford, 1918

EXTENT OF THE ADVANCE PROPOSED IN LOCAL BODIES

188. Let us now consider the principles on which our proposals are based. We have surveyed the existing position; we have discussed the conditions of the problem: and the goal to which we wish to move is clear. What course are we to set across the intervening space? It follows from our premises, and it is also recognized in the announcement of August 20, that the steps are to be gradual and the advance tested at each stage. Consistently with these requirements a substantial step is to be taken at once. If our reasoning is sound, this can be done only by giving from the outset some measure of responsibility to representatives chosen by an electorate. There are obviously three levels at which it is possible to give it–in the sphere of local bodies, in the provinces, and in the Government of India. Of certain other levels which have been suggested, intermediate between the first and second of these, we shall speak in due course. Also, since no man can serve two masters, in proportion as control by an electorate is admitted at each level, control by superior authority must be simultaneously relaxed. If our plans are to be soundly laid, they must take account of actual conditions. It follows that the process cannot go on at one and the same pace on all levels. The Secretary of State’s relaxation of control over the Government of India will be retarded, if for no other reason, by the paramount need for securing Imperial interests; the Government of India have the fundamental duty to discharge of maintaining India’s defence; the basic obligation of provincial governments is to secure law and order. As we go upwards, the importance of the retarding factors increases; and it follows that popular growth must be more rapid and extensive in the lower levels than in the higher. Let us state, the proposition in another way. The functions of government can be arranged in an ascending scale of urgency, ranging from those which concern the comfort and well-being of the individual to those which secure the existence of the State. The individual understands best the matters which concern him and of which he has experience; and he is likely to handle best the things which he best understands. Our predecessors perceived this before us, and placed such matters to some extent under popular control. Our aim should be to bring them entirely under such control. This brings us to our first formula:

There should be, as far as possible, complete popular control in local bodies and the largest possible independence for them of outside control (1).

IN PROVINCIAL GOVERNMENTS

189. When we come to the provincial governments the position is different. Our objective is the realization of responsible government. We understand this to mean first, that the members of the executive government should be responsible to, because capable of being changed by, their constituents; and, secondly, that these constituents should exercise their power through the agency of their representatives in the assembly. These two conditions imply in their completeness that there exist constituencies based on a franchise broad enough to represent the interests of the general population, and capable of exercising an intelligent choice in the selection of their representatives; and, secondarily, that it is recognized as the constitutional practice that the executive government retains office only so long as it commands the support of a majority in the assembly. But in India these conditions are as yet wanting. The provincial areas and interests involved are immense, indeed are on what would elsewhere be regarded as a national scale. The amount of administrative experience available is small; electoral experience is almost entirely lacking. There must be a period of political education; which can only be achieved through the gradual but expanding exercise of responsibility. The considerations of which we took account in chapter VI forbid us immediately to hand over complete responsibility. We must proceed therefore by transferring responsibility for certain functions of government while reserving control over others. From this starting point we look for a steady approach to the transfer of complete responsibility. We may put our second formula thus:

The provinces are the domain in which the earlier steps towards the progressive realization of responsible government should be taken. Some measure of responsibility should be given at once, and our aim is to give complete responsibility as soon as conditions permit. This involves at once giving the provinces the largest measure of independence, legislative, administrative and financial, of the Government of India which is compatible with the due discharge by the latter of its own responsibilities (2).

IN THE GOVERNMENT OF INDIA

190. But, as we shall see, any attempt to establish equilibrium between the official and popular forces in government inevitably introduces additional complexity into the administration. For such hybrid arrangements precedents are wanting; their working must be experimental, and will depend on factors that are yet largely unknown. We are not prepared, without experience of their results, to effect like changes in the Government of India. Nevertheless, it is desirable to make the Indian Legislative Council more truly representative of Indian opinion, and to give that opinion greater opportunities of acting on the Government. While, therefore, we cannot commend to Parliament a similar and simultaneous advance both in the provinces and in the Government of India, we are led to the following proposition:

The Government of India must remain wholly responsible to Parliament, and, saving such responsibility, its authority in essential matters must remain indisputable, pending experience of the effect of the changes now to be introduced in the provinces. In the meantime the Indian Legislative Council should be enlarged and made more representative and its opportunities of influencing Government increased (3).

IN ENGLAND

191. Further, the partial control of the executive in the provinces by the legislature, and the increasing influence of the legislature upon the executive in the Government of India will make it necessary that the superior control over all governments in India which is now exercised by the authorities at home must be in corresponding measure abated: for otherwise, the executive governments in India will be subjected to pressure from different sources which will wholly paralyse their liberty of action, and also the different pressures may be exercised in opposite directions. We may put this proposition briefly as follows:

In proportion as the foregoing changes take effect, control of Parliament and the Secretary of State over the Government of India and provincial governments must be relaxed (4).

LOCAL SELF-GOVERNMENT

192. We have been told that, inasmuch as local self-government has not yet been made a reality in most parts of India, we should content ourselves with such reforms as will give it reality, and should await their result before attempting anything more ambitious, on the principle that children learn to walk by learning first to crawl. We regard this solution as outside the range of practical politics; for it is in the councils that the Morley-Minto reforms have already brought matters to an issue; and Indian hopes and aspirations have been aroused to such a pitch that it is idle to imagine that they will now be appeased by merely making over to them the management of urban and rural boards. Moreover, the development of the country has reached a stage at which the conditions justify an advance in the wider sphere of government; and at which indeed government without the co-operation of the people will become increasingly difficult. On the other hand, few of the political associations that addressed us seemed adequately to appreciate the importance of local affairs, or the magnitude of the advance which our recommendation involves. But the point has been made time and time again by their own most prominent leaders. It is by taking part in the management of local affairs that aptitude for handling the problems of government will most readily be acquired. This applies to those who administer, but even more to those who judge of the administration. Among the clever men who come to the front in provincial politics, there will be some who will address themselves without more difficulty, and indeed with more interest and zeal, to the problems of government than to those of municipal or district board administration. But the unskilled elector, who has hitherto concerned himself neither with one nor the other, can learn to judge of things afar off only by accustoming himself to judge first of things near at hand. This is why it is of the utmost importance to the constitutional progress of the country that every effort should be made in local bodies to extend the franchise, to arouse interest in elections, and to develop local committees, so that education in citizenship may as far as possible be extended, and everywhere begin in a practical manner. If our proposals for changes on the higher levels are to be a success, there must be no hesitation or paltering about changes in local bodies. Responsible institutions will not be stably rooted until they become broad-based; and farsighted Indian politicians will find no field into which their energies can be more profitably thrown than in developing the boroughs and communes of their country.

PROVINCIAL EXECUTIVE

COUNCIL GOVERNMENT

214. Let us now explain how we contemplate in future that the executive governments of the provinces shall be constituted. As we have seen, three provinces are now governed by a Governor and an executive council of three members, of whom one is in practice an Indian and two are usually appointed from the Indian Civil Service, although the law says only that they must be qualified by twelve years’ service under the Crown in India. One province, Bihar and Orissa, is administered by a Lieutenant-Governor with a Council of three constituted in the same way. The remaining five provinces, that is to say, the three Lieutenant-Governorships of the United Provinces, the Punjab and Burma and the two Chief Commissionerships of the Central Provinces and Assam, are under the administration of a single official head. We find throughout India a very general desire for the extension of council government. There is a belief that when the administration centres in a single man, the pressure of work inevitably results in some matters of importance being disposed of, in his name but without personal reference to him, by secretaries to Government. There is also a feeling that collective decisions, which are the result of bringing together different points of view, are more likely to be judicious and well-weighed than those of a single mind. But above all council government is valued by Indians, because of the opportunity it affords for taking an Indian element into the administration itself. To our minds, however, there is an over-riding reason of greater importance than any of these. The retention of the administration of a province in the hands of a single man precludes the possibility of giving it a responsible character. Our first proposition, therefore, is that in all these provinces single-headed administration must cease and be replaced by collective administration.

THE STRUCTURE OF THE EXECUTIVE

215. In determining the structure of the executive we have to bear in mind the duties with which it will be charged. We start with the two postulates that complete responsibility for the government cannot be given immediately without inviting a breakdown, and that some responsibility must be given at once if our scheme is to have any value. We have defined responsibility as consisting primarily in amenability to constituents, and in the second place in amenability to an assembly. We do not believe that there is any way of satisfying these governing conditions other than by making a division of the functions of the provincial government, between those which may be made over to popular control and those which for the present must remain in official hands. The principles and methods of such division and also the difficulties which it presents we shall discuss hereafter. For the moment let us assume that such division has been made, and that certain heads of business are retained under official and certain others made over to popular control. We may call these the ‘reserved’ and ‘transferred’ subjects respectively. It then follows that for the management of each of these two categories there must be some form of executive body, with a legislative organ in harmony with it, and if friction and disunion are to be avoided it is also highly desirable that the two parts of the executive should be harmonized. We have considered the various means open to us of satisfying these exacting requirements.

OUR OWN PROPOSALS

218. We propose therefore that in each province the executive government should consist of two parts. One part would comprise the head of the province and an executive council of two members. In all provinces the head of the government would be known as Governor, though this common designation would not imply any equality of emoluments or status, both of which would continue to be regulated by the existing distinctions, which seem to us generally suitable. One of the two executive councillors would in practice be a European qualified by long official experience, and the other would be an Indian. It has been urged that the latter should be an elected member of the provincial legislative council. It is unreasonable that choice should be so limited. It should be open to the Governor to recommend whom he wishes. In making his nominations, the Governor should be free to take into consideration the names of persons who had won distinction whether in the legislative council or any other field. The Governor in Council would have charge of the reserved subjects. The other part of the government would consist of one member or more than one member, according to the number and importance of the transferred subjects chosen by the Governor from the elected members of the legislative council. They would be known as ministers. They would be members of the executive government but not members of the executive council; and they would be appointed for the lifetime of the legislative council, and if re-elected to that body would be re-eligible for appointment as members of the executive. As we have said, they would not hold office at the will of the legislature but at that of their constituents. We make no recommendation in regard to pay. This is a matter which may be disposed of subsequently.

RELATION OF THE GOVERNOR TO MINISTERS

219. The portfolios dealing with the transferred subjects would be committed to the ministers, and on these subjects the ministers, together with the Governor, would form the administration. On such subjects their decisions would be final, subject only to the Governor’s advice and control. We do not contemplate that from the outset the Governor should occupy the position of a purely constitutional Governor who is bound to accept the decisions of his ministers. Our hope and intention is that the ministers will gladly avail themselves of the Governor’s trained advice upon administrative questions, while on his part he will be willing to meet their wishes to the furthest possible extent in cases where he realizes that they have the support of popular opinion. We reserve to him a power of control, because we regard him as generally responsible for his administration, but we should expect him to refuse assent to the proposals of his ministers only when the consequences of acquiescence would clearly be serious. Also we do not think that he should accept without hesitation and discussion proposals which are clearly seen to be the result of inexperience. But we do not intend that he should be in a position to refuse assent at discretion to all his ministers’ proposals. We recommend that for the guidance of Governors in relation to their ministers, and indeed on other matters also, an instrument of instructions be issued to them on appointment by the Secretary of State in Council.

PROVINCIAL LEGISLATURES

COMPOSITION OF THE COUNCILS

225. We will now explain how we intend that the provincial legislatures of the future shall be constituted. We propose there shall be in each province an enlarged legislative council. differing in size and composition from province to province, with a substantial elected majority, elected by direct election on a broad franchise, with such communal and special representation as may be necessary.

STANDING COMMITTEES

235. Our next proposal is intended to familiarize other elected members of the legislative council, besides ministers, with the processes of administration; and also to make the relations between the executive and legislative more intimate. We propose that to each department or group of departments, whether it is placed under a member of the executive council or under a minister, there should be attached a standing committee elected by the legislative council from among their own members. Their functions would be advisory. They would not have any administrative control of departments. It would be open to the Government to refuse information when it would be inconsistent with the public interest to furnish it. We do not intend that all questions raised in the course of day-to-day Administration should be referred to them; but that they should see, discuss, and record for the consideration of Government their opinions upon all questions of policy, all new schemes involving expenditure above a fixed limit, and all annual reports upon the working of the departments. If the recommendations of the standing committee were not accepted by Government it would subject of course to the obligation of respecting confidence, be open to any of its members to move a resolution in the legislative council in the ordinary way. The member of the executive council or minister concerned with the subject-matter should preside over the committee, and as an exception to the rule that it should be wholly non-official, the heads of the departments concerned, whether sitting in the legislative council or not, should also be full members of it with the right to vote.

CONTROL OF BUSINESS

236. Bearing in mind the facts that the legislative councils will in future be larger bodies and will contain a certain number of members unversed in discussion, we feel the importance of maintaining such standards of business as will prevent any lowering of the council’s repute. The conduct of business in a large deliberative body is a task that calls for experience which cannot be looked for at the outset in an elected member. We consider therefore that the Governor should remain the President of the legislative council, but inasmuch as it is not desirable that he should always preside, he should retain the power to appoint a Vice-President. He should not be formally limited in his selection, but we suggest that for some time to come it will be expedient that the Vice-President should be chosen from the official members.

Power to make its own rules of business is a. normal attribute of a legislative body. But a simple and satisfactory procedure is of the essence of successful working; and it is advisable to avoid the risk that inexperience may lead to needless complication or other defect in the rules. We think therefore that the existing rules of procedure should, for the time being, continue in force, but that they should be liable to modification by the legislative council with the sanction of the Governor.

One or two points in connection with the rules require notice. Any member of the legislative council and not merely the asker of the original question should, we think, have power to put supplementary questions. Power should be retained in the Governor’s hands to disallow questions, the mere putting of which would be detrimental to the public interests. If a question is not objectionable in itself but cannot be answered without harm to the public interests, the Governor should not disallow the question, but his Government should refuse to answer it on that ground. We have not considered in what respect existing restrictions upon the moving of resolutions should be modified; but here also it seems inevitable that some discretionary power of disallowance should remain in the Governor’s hands.

EFFECT OF RESOLUTIONS

237. We do not propose that resolutions, whether on reserved or transferred subjects, should be binding. The Congress-League proposal to give them such authority is, open to the objections which we have already pointed out. If a member of the legislative council wishes the Government to be constrained to take action in a particular direction, it will often be open to him to bring in a Bill to effect his purpose; and when ministers become, as we intend they should, accountable to the legislative council, the council will have full means of controlling their administration by refusing them supplies or by means of votes of censure, the carrying of which may in accordance with established constitutional practice, involve their quitting office.

DIVISION OF THE FUNCTIONS OF GOVERNMENT

(See the related entry here)

SETTLEMENT OF DISPUTES

239. We realize that no demarcation of subjects can be decisive in the sense of leaving open no matter for controversy. Cases may arise in which it is open to doubt into which category a particular administrative question falls. There will be other cases in which two or more aspects of one and the same transaction belong to different categories. There must therefore be an authority to decide in such cases which portion of the Government has jurisdiction. Such a matter should be considered by the entire Government, but its decision must in the last resort lie definitely and finally with the Governor. We do not intend that the course of administration should be held up while his decision is challenged either in the law courts or by an appeal to the Government of India.

POWERS OF INTERVENTION

240. Further, inasmuch as administration is a living business and its corpus cannot be dissected with the precision of an autopsy, we must, even in the case of matters ordinarily made over to non-official control, secure the right of re-entry either to the official executive government of the province, or to the Government of India in cases where their interests are essentially affected. For instance, the central Government must have the power, for reasons which will be readily apparent in every case, of intervening effectively, whether by legislation or administrative action, in matters such as those affecting defence, or foreign or political relations, or foreign trade, or the tariff; or which give rise to questions affecting the interests of more than one province; or which concern the interests of all-India services, even if serving under provincial governments. Similarly the Governor in executive council must have power to intervene with full effect in matters which concern law and order, or which raise religious or racial issues, or to protect the interests of existing services. We do not claim that this list of reservations is exhaustive or definitive; we look to the committee to assist in making it so. Our aim must be to secure to the official executive the power of protecting effectually whatever functions are still reserved to it and to the Government of India, of intervening in all cases in which the action. of the non-official executive or council affects them to their serious prejudice. For otherwise the official Government which is still responsible to Parliament may be unable to discharge its responsibility properly.

MEANS OF SECURING THE AFFIRMATIVE POWER OF LEGISLATION

247. We now turn to a consideration of the work of the legislative councils. Assuming that they have been reconstituted with elective majorities, and that the reserved and transferred subjects have been demarcated in the way suggested, let us consider how the executive government is to be enabled to secure the passing of such legislation or such supplies as it considers absolutely necessary in respect of the reserved services. For we must make some such provision if we are going to hold it responsible for the government of the province.

Now in respect of legislation there are several possibilities. We might leave it to the Government of India to pass the laws which a provincial government has failed to carry in the Indian legislature where, as we shall show, we intend to leave it in a position to pass the laws which it deems essential: or we might leave it to the Governor-General, or preferably perhaps to the Governor-General in Council, to make and promulgate ordinances, having effect either for a specified period, or else until such time as the life of the provincial legislative council which refused the desired legislation was cut short or expired, and a new council was elected in its place: or we might arm the provincial government with a similar power of ordinance-making. We shall explain why we reject all these alternatives.

OUR PROPOSALS. GRAND COMMITTEES

252. Because, as we shall show in paragraph 258, we have decided not to recommend the institution of second chambers in the provinces we cannot apply to the provinces the scheme which. we propose hereafter for the Government of India; and we must turn to some form of unicameral arrangements. The solution which we propose is as follows. For the purpose of enabling the provincial government to get through its legislation on reserved subjects, we propose that the head of the Government should have power to certify that a Bill dealing with a reserved subject is a measure ‘essential to the discharge of his responsibility for the peace or tranquillity of the province or of any part thereof, or for the discharge of his responsibility for the reserved subjects’. In employing these words we are not assuming the function of a parliamentary draughtsman: we merely mean to indicate that words will be needed to show that this exceptional procedure will be used only when the Government feels that its legislation is necessary if peace and tranquillity are to be secured, or more generally if it is properly to discharge its responsibility for the reserved subjects even if no question of maintaining order arises. It will be seen hereafter that we propose similar procedure for controlling non-official bills, amendments, and clauses, and for controlling budget allotments on reserved subjects. In these cases also we shall speak of certification as indicating that the Governor was using the exceptional procedure in the circumstances described above. Such a certificate as we have described would not be given without strong reason; and we suggest that the reasons justifying recourse to it might be included in the instructions to Governors which the India Office should issue; for instance, we think that the Governor should not certify a Bill if he thought its enactment could safely be left to the legislative council. The effect of the Governor’s certificate when published with the Bill will be to initiate the procedure which we now describe. The Bill will be read and its general principles discussed in the full legislative council. It will at this stage be open to the council by a majority vote to request the Governor to refer to the Government of India, whose decision on the point shall be final, the question whether the certified Bill deals with a reserved subject. If no such reference is made, or if the Government of India decide that the certificate has been properly given, the Bill will then be automatically referred to a grand committee of the council. Its composition should reproduce as nearly as possible the proportion of the various elements in the larger body. Our first intention was that the grand committee in each province should be a microcosm of the existing council. But we find that the existence of communal and special electorates makes it difficult to secure to all of these their due representation on a smaller body without at the same time sacrificing the representation of the interests represented by the general electorates, to which it is our special intention to give a greater voice in the councils than heretofore. Accordingly. we propose that the grand committee in every council should be constituted so as to comprise from forty to fifty per cent. of its strength. It should be chosen for each Bill, partly by election by ballot, and partly by nomination.

The Governor should have power to nominate a bare majority exclusive of himself. Of the members so nominated not more than two-thirds should be officials, and the elected element should be elected ad hoc by the elected members of the council on the system of the transferable vote. It is clear that the composition of the grand committee ought to vary with the subject-matter of the particular Bill; and we believe that the council and the Governor between them can be trusted to ensure that whether by election or nomination all the interests affected by the Bill are properly represented. It may be objected that such a grand committee so composed offers the official executive no absolute guarantee that its measure will get through. We agree that this is the case; but there is no such guarantee at present. In a grand committee of forty members there could be fourteen officials, and we consider that no great harm will ensue if Government defers legislative projects which axe opposed by the whole elected element and f or which it cannot secure the support of six out of the seven members whom the Governor has it in his power to select from the whole body of the non-official members in the council.

UPPER HOUSES

258. At this point we may explain that we have considered the feasibility of establishing a bicameral system in the provinces. Its advocates urge that in creating upper houses we should follow the system which generally prevails in countries where popular government has firmly established itself. We might also expect that the representation of minority interests would become more effective in an upper house than in a single composite chamber, because minority representatives sitting in a chamber of their own might feel themselves freer to defend the interests which they represented than if they sat together with other elements in a lower house. We might secure men for the upper houses who would not seek election, or even accept nomination to a composite assembly, where the majority of members were of a different status from themselves; and so the second chamber might develop a conservative character which would be a valuable check on the possibly too radical proclivities of a lower house. But we see very serious practical objections to the idea. In many provinces it would be impossible to secure a sufficient number of suitable members for two houses. We apprehend also that a second chamber representing mainly landed and moneyed interests might prove too effective a barrier against legislation which affected such interests. Again, the presence of large landed proprietors in the second chamber might have the unfortunate result of discouraging other members of the same class from seeking the votes of the electorate. We think that the delay involved in passing legislation through two houses would make the system far too cumbrous to contemplate for the business of provincial legislation. We have decided for the present therefore against bicameral institutions for the provinces. At the same time we bear in mind that as provincial councils approach more closely to parliamentary p forms the need for revising chambers may be the more felt; and we think that the question should be further considered by the periodic commission which we propose hereafter.

THE GOVERNOR-GENERAL’S EXECUTIVE COUNCIL

271. We have explained already how the executive council of the Governor-General is constituted and how portfolios are allotted in it. Its changed relations with provincial governments will in themselves materially affect the volume of work coming before the departments, and for this reason alone some redistribution will be necessary. We would therefore abolish such statutory restrictions as now exist in respect of the appointment of members of the Governor-General’s Council, so as to give greater elasticity both in respect of the size of the Government and the distribution of work. If it is desired to retain Parliamentary control over these matters, they might be embodied in statutory orders to be laid before Parliament.

INCREASE IN INDIAN ELEMENT

272. Further we propose to increase the Indian element in the executive council. We do not think it necessary to argue the expediency of enabling the wishes of India to be further represented in the Cabinet of the country. The decision of Lord Morley and Lord Minto to appoint one Indian member to the council marked an important stage in India’s political development; and has proved of value in enabling the Government to have first-hand acquaintance with Indian opinion. In recommending a second appointment we are only pursuing the policy already determined upon in respect of the public services. There exists of course at present no racial prescription in the Statute nor do we propose that any should be introduced. There is even no formal guarantee that any appointment shall be made on the grounds of race. The appointment of Indian members will be made in the future, as in the past, as a matter of practice by the Crown on the recommendation of the Secretary of State; and we suggest the appointment of another Indian member as soon as may be.

THE INDIAN LEGISLATIVE ASSEMBLY

(see the related entry here)

REPRESENTATION OF THE PROVINCES

274. The suggestion we have made for the number of elected members was based on the calculation that the three presidencies would be represented by eleven members each-the United Provinces by ten, the Punjab and Bihar and Orissa by seven each, the Central Provinces by five, Burma by three, and Assam by two. We also think that in view of the importance of the Delhi province as the Imperial enclave and the seat of the central Government, it should be represented by a member.

NOMINATED MEMBERS

275. In respect of the non-official members to be nominated by the Governor-General, we advise that no hard-and-fast rule should be laid down. These seats should be regarded as a reserve in his hands for the purpose of adjusting inequalities and supplementing defects in representation. Nominations should not be made until the results of all the elections are known; and then they should be made after informal consultation with the heads of provinces. The maximum number of nominated officials will be two-ninths of the whole, and it will rest with the Governor-General to determine whether he requires to appoint up to this maximum. The officials will, however, include the executive members of council, sitting not by appointment but ex-officio; and also some representation from the provinces. It may therefore not be possible for secretaries to the Government of India to continue to sit in the assembly; this may in itself be of advantage as decreasing the dislocation of administrative business during the session. It may, however, be necessary to allow the secretary to speak and vote on behalf of the member when occasion demands. But for this purpose we think that a preferable alternative may be to appoint members of the Assembly, not necessarily elected nor even non-official, to positions analogous to those of Parliamentary Under-Secretaries in England; and we advise that power be taken to make such appointments. We attach importance to the further proposal that official members of the Assembly, other than members of the executive government, should be allowed a free right of speech and vote, except when the Government decides that their support is necessary. We think that this change of procedure will affect the tone of discussions very beneficially. We think that, for the reasons which we have given already in support of a similar recommendation in respect of the provincial councils, the President of the Legislative Assembly should be nominated by the Governor-General. We do not propose that his choice should be formally limited, but it seems necessary that, at any rate for the present, the President should be designated from among the official members.

MEANS OF SECURING THE AFFIRMATIVE POWER OF LEGISLATION

276. We began with the fundamental proposition that the capacity of the Government of India to obtain its will in all essential matters must be unimpaired. The institution of an assembly with a large elected majority confronts us with the problem, as in the case of the provinces, of enabling the executive government to secure its essential legislation and its supplies. Here also we have examined several possible expedients. In this instance there can be no question of relying on legislation by superior authority. The only superior authority is Parliament, and Parliament is too far off and notoriously too preoccupied and not suitably constituted to pass laws for the domestic needs of India. It is true that the Governor-General has the power of making temporary ordinances for certain emergent purposes. We propose that this power should be retained: its utility has been strikingly demonstrated during the present war. It merely provides, however, a means of issuing decrees after private discussion in the executive council., and without opportunities for public debate or criticism: and normally it should be used only in rare emergencies. It would be unsuitable for our purpose. What we seek is some means, for use on special occasions, of placing on the Statute book, after full publicity and discussion, permanent measures to which the majority of members in the Legislative Assembly may be unwilling to assent. We seek deliberately, when the purpose justifies us, to depart from popular methods of legislation, and it is obvious that no device which conforms to those methods can possibly serve our purpose. For this purpose we have come to the conclusion that we should employ the method now familiar to Indian institutions of maintaining such a number of votes, upon which the Government can in all circumstances rely, as to ensure the passage of the legislation that it requires. It is here alone, and only (as will be seen hereafter) for use in cases where it is obviously necessary, that we propose to perpetuate the official bloc. We are seeking to provide f or a period of transition; for which purpose no novel expedient, such as multiplying the value of official votes or calling in officials who have not taken part in the argument to record their votes, or of passing measures automatically after discussion, would be as easily understood or as acceptable as the continuance in modified form of the present system.

THE COUNCIL OF STATE

277. One suggestion which we considered was that we should follow the plan adopted in the provinces, and institute grand committees to which the Government’s essential Bills should be referred. But the conditions of Indian legislation are different from those of provincial. Matters are more important, the Government’s responsibility to Parliament is closer, and the affirmative power must be more decisively used. We feel also that there are advantages, both direct and incidental, in writing up a separate constitutional body, in which Government will be able to command a majority. We do not propose to institute a complete bi-cameral system, but to create a second chamber, known as the Council of State, which shall take its part in ordinary legislative business and shall be the final legislative authority in matters which the Government regards as essential. The Council of State will be composed of fifty members, exclusive of the Governor-General, who would be President with power to appoint a Vice-President who would normally take his place: not more than twenty-five will be officials, including the members of the executive council, and four would be non-officials nominated by the Governor-General. Official members would be eligible for nomination to both the legislative assembly and the Council of State. There would be twenty-one elected members, of whom fifteen will be returned by the non-official members of the provincial legislative councils, each council returning two members, other than those of Burma, the Central Provinces and Assam, which will return one member each. Elected members returned to the Council of State would vacate any seats they occupied on the provincial council or the legislative assembly. The remaining six elected members are intended to supplement the representation which the Muhammadans and the landed classes will otherwise secure; and also to provide for the representation of chambers of commerce. Each of these three interests should, we suggest, return two members directly to the Council of State. Bearing in mind the fact that among the members of the provincial legislative councils who will elect to the fifteen seats there will be a proportion of Muhammadans, and assuming that in each of the bigger provinces each elector will be able as now to give both his votes to one candidate, we estimate that the composition of the Council of State should comprise at least six Muhammadans whether sitting by direct or indirect election or by the Governor-General’s nomination. Moreover it is desirable that the four seats to be filled by direct election should be used so as to ensure that the Muhammadan and landed members should as far as possible be representative of the whole of India. Deficiencies may occur in this respect in any one council, but they should be corrected in elections to the subsequent council. For this reason the regulations for elections to the four seats should be framed by the Governor-General in Council in such way as to enable him to decide, after consideration of the results of the indirect elections, from what part of India or possibly in what manner from India generally the seats should be filled.

LEGISLATIVE PROCEDURE. GOVERNMENT BILLS

279. Lot us now explain how this legislative machinery will work. It will make for clearness to deal separately with Government Bills and Bills introduced by non-official members. A Government Bill will ordinarily be introduced and carried through all the usual stages in the legislative assembly. It will then go in the ordinary course to the Council of State, and if there amended in any way which the Assembly is not willing to accept, it will be submitted to a joint session of both Houses, by whose decision its ultimate fate will be decided. This will be the ordinary course of legislation. But it might well happen that amendments made by the Council of State were such as to be essential in the view of the Government if the purpose with which the Bill was originally introduced was to be achieved, and in this case the Governor-General in Council would certify that the amendments were essential to the interests of peace, order, or good government. The Assembly would then not have power to reject or modify these amendments, nor would they be open to revision in a joint session.

We have to provide for two other possibilities. Cases may occur in which the legislative assembly refuses leave to the introduction of a Bill or throws out a Bill which the Government regarded as necessary. For such a contingency we would provide that if leave to introduce a Government Bill is refused, or if the Bill is thrown out at any stage, the Government should have the power, on the certificate of the Governor-General in Council that the Bill is essential to the interests of peace, order, or good government, to refer it de novo to the Council of State; and if the Bill, after being taken in all its stages through the Council of State, was passed by that body, it would become law without further reference to the Assembly. Further, there may be cases when the consideration of a measure by both chambers would take too long if the emergency which called for the measure is to be met. Such a contingency should rarely arise but we advise that in cases of emergency, so certified by the Governor-General in Council, it should be open to the Government to introduce a Bill in the Council of State, and upon its being passed there merely to report it to the Assembly.

FISCAL LEGISLATION. EFFECT OF RESOLUTIONS

284. Fiscal legislation will, of course, be subject to the procedure which we have recommended in respect of Government Bills. The budget will be introduced in the Legislative Assembly, but the Assembly will not vote it. Resolutions upon budget matters and upon all other questions, whether moved in the Assembly or in the Council of State, will continue to be advisory in character. We have already given our reasons for holding that it is not feasible to give resolutions a legal sanction. But since resolutions will no longer be defeated in the Assembly by the vote of an official majority, they will, if carried, stand on record as the considered opinion of a body which is at all events more representative than the Legislative Council which it displaced. That in itself will mean that the significance of resolutions will be enhanced; there will be a heavier responsibility upon those who pass them, because of their added weight; and the Government’s responsibility for not taking action upon them will also be heavier. It will be therefore incumbent on Government to oppose resolutions which it regards as prejudicial with all the force and earnestness that it can command in the hope of convincing the Assembly of their undesirability. There must, however, remain to the Government power not to give effect to any resolution which it cannot reconcile with its responsibility for the peace, order, and good government of the country.

POSITION OF THE STATES

297. Although compared with the British provinces the states are thinly populated, they comprise among them some of the fairest portions of India. The striking differences in their size, importance, and geographical distribution, are due partly to variations of policy, partly to historical events which no Government could control. Wherever consolidating forces were at work before the British advance occurred, we find that large units of territory were constituted into States: wherever disorder or other disintegrating factors were at work longer, as in Bombay and Central India, we find a large number of fragmentary territories. ‘Political as well as physical geography bears witness to the stress of the destructive forces through which a country has passed.’ The policy of the British Government towards the states has changed from time to time, passing from the original plan of non-intervention in all matters beyond its own ring-fence to the policy of ‘subordinate isolation’ initiated by Lord Hastings; which in its turn gave way before the existing conception of the subordinate relation between the states and the Government of India, which may be described as one of union and co-operation on their part with the paramount power. In spite of the varieties and complexities of treaties, engagements, and sanads, the general position as regards the rights and obligations of the native states can be summed up in a few words. The states are guaranteed security from without; the paramount power acts for them in relation to foreign powers and other states, and it intervenes when the internal peace of their territories is seriously threatened. On the other hand the states’ relations to foreign powers are those of the paramount power; they share the obligation for the common defence; and they are under a general responsibility for the good government and welfare of their territories.

EFFECTS OF THE WAR

298. Now let us consider what factors have been at work to bring the ruling princes into closer relations with the Government of India. Foremost is the war. No words of ours are needed to make known the services to the Empire which the states have rendered. They were a profound surprise and disappointment to the enemy; and a cause of delight and pride to those who knew beforehand the princes’ devotion to the Crown. With one accord the rulers of the native states in India rallied to fight for the Empire when war was declared; they offered their personal services and the resources of their states. Imperial service troops from over a score of states have fought in various fields, and many with great gallantry and honour. The princes have helped lavishly with men and horses, material and money, and some of them have in person served in France and elsewhere. They have shown that our quarrel is their quarrel; and they have both learned and taught the lesson of their own indissoluble connection with the Empire, and their immense value as part of the polity of India.

A COUNCIL OF PRINCES

(see the related entry)
STANDING COMMITTEE OF THE COUNCIL

307. It has been represented to us that difficulties have occurred in the past by reason of the fact that the political department comes to decisions affecting the native states without being in a position to avail itself of the advice of those who are in a position to know from their own personal experience or the history of their states the right course to pursue. On matters of custom and usage in particular we feel that such advice would be of great value, and would help to ensure sound decisions. Our second proposal therefore is that the Council of Princes should be invited annually to appoint a small standing committee, to which the Viceroy or the political department might refer such matters. We need hardly say that no reference affecting any individual state would be made to the committee without the concurrence of its ruler. The Council of Princes might appoint to the standing committee not only princes but also dewans or ministers, who were willing to place their services at the disposal of the Viceroy when called upon for advice. This machinery is based on the principle of consultation, which in so many matters underlies our recommendations in regard to British India.