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recommendation of the Committee is that the present limitation on the number of the Members of the Executive Council should be removed, that three Members of that Council should continue to be public servants or ex-public servants who have had not less that ten years' experience in the service of the Crown in India; that one member of the Conncil should have definite legal qualifications, but that those qualifications may be gained in India as well as in the United Kingdom; and that not less than three Members of the Council should be Indians. In this connection it must be borne in mind that the members of the Council drawn from the ranks of the public servants will, as time goes on, be more and more likely to be of Indian rather than European extraction." Thus by requiring at least three members of the Executive Council to be Indians, and by throwing open the Council to Indians of legal eminence though they might not be barristers, full concession has been made to the popular demand regarding the composition of the Executive Council.

The Indian Legislature.

Pre-Reforms
Condition.

150. Under the Old Rules the Indian Legislative Council had a maximum strength of sixty Members of whom only 27 were elected non-officials, many of them being returned by the nonofficial members in the Provincial Councils. Thus not only were the electorates very small, but, except in the case of certain Mahomedan and Commerce Constituencies, the representation was indirect, and finally there was a clear Official majority. This last was a necessary corollary of the emphatic declaration of Lord Morley that the Act of 1909 was in no way a step towards Responsible Government, and that Government of India therefore must always be in a position, by carrying what

legislation or funds it required in the Council, to discharge its responsibilities to Parliament.

The new situation.

151. Now it is true that the element of responsibility has not been introduced in the Central Government. At the same time the disadvantages of having an Official majority in the Central Council were so patent that the authors of the Report came to the definite conclusion that no Council the composition of which is conditioned by the necessity of maintaining an official majority could possibly be truly representative of the interests of the entire country.

Our two postulates about the Indian Legislature thus are: (1) there ought to be a clear elective majority in it; (2) and yet the Legislature must not be in a position to withold such funds as the Government of India think essential for the discharge of their responsibility to Parliament. We must therefore devise some method or methods by which the Government of India could secure necessary laws and funds if either or both of these are opposed by a hostile Legislature.

A similar dead-lock in the Provincial Council could be got over by the powers of concurrent legislation by the central Legislature, by Ordinances, by Grand Committee, or by having two Chambers in the Legislature.

The first is out of question in our present difficulty, for the only Legislature superior to that of India is, of Course, the British Parliament. But though it has an undoubted right to legislate for the whole or any part of India, in practice it never does so except on occasions when fundamental changes are to be made in the Constitution of India. And it is so much preoccupied with domestic and Imperial affairs that it has not the time, though it may have the inclination, to legislate on the details of Indian Administration.

Ordinances and Grand Committees are unsuitable for reasons already explained when considering the provincial Councils.

Finally there remains the bicameral legislature. This was declared impracticable for a province on the ground that it would be difficult to devise differential franchise for both the Chambers, and in any case there would be scarcity of eligible candidates for them in the present condition of India. But both these alleged difficulties vanish when we consider India as a whole. And all the advantages of a bicameral legislature-representation of the moneyed and landed aristocracy, of superior birth or education, of different classes and interests,-could be easily secured by having it. The Report accordingly concluded that the Indian Legislature should consist of two Cham'bers, the Indian Legislative Assembly as the Lower House, and the Council of State as the Upper House.

And to emphasize the position of the Governor-General as the constitutional head of the Government, the Act provides that, on the analogy of the King in Parliament, the Indian Legislature will consist of the two Chambers and the Governor-General.

152. But the exact role of the Council of State and its relations with the Legislative Assembly were long a matter of controversy and gave rise to interesting debates in the first sessions of the two bodies.

Position of the Council of state.

The original proposals of the Report on this question were unsatisfactory and they have been subsequently importantly modified. The Report did not propose to institute a complete bicameral system, but simply to create the Council of State as a Second Chamber which, though normally taking part in ordinary legislation, could be brought into effective play for the purposes of passing, on the strength of its Official majority, what the Government

certified as essential legislation if the same was opposed by the popular Assembly. Thus the Council of State was to be a sort of glorified Grand Committee, a counterpoise to the democratic Legislative Assembly. It was to be, as Lord Meston put it, a legislative organ in harmony with the needs of the executive Government.

But this degradation of the Council of State to the status of a Grand Committee as originally indicated in the Report was generally opposed by Indian public opinion. It was open to all the objections to the presence of the official bloc from which the old Indian Legislative Council so wofully suffered. Again, all the objections that had been urged against the Grand Committee procedure in a provincial Council also applied to such a Council of State with greater force. And finally, the requirement of a large number of Officials in the Council put a narrow limit to its total strength, when the great desideratum of the Indian Legislature was that it should be comprehensive enough to include the varied interests of a vast country.

If not a Grand Committee, what then is to be the status of the Council of State? To answer this question we must first of all consider the nature and extent of control which the Secretary of State will henceforward exercise over the Government of India. If that control is to continue to be as rigid as it was in the past, then the problem of the composition of the Indian Legislature loses half its difficulty and importance. That Legislature can not be anything more than a mere recommending and registering body, and to the extent to which the Legislative Assembly is made stronger and more elective, to that extent also you must make the Council of State a narrow and official body as a counterpoise to it. But if the Government of India are to be made largely independent of the Secretary of State, then the constitution of the Indian Legislature assumes a vital

now

significance. The questions that will come before that Legislature for discussion and decision will be wider and more important than in the past. For subjects like Education, Sanitation, Agriculture, Industries etc. are provincial and will come up before the Central Legislature on special occasions. But large questions of fiscal, political, and military importance will be constantly before it; and the Government of India, freed from the close control of the Secretary of State, will have to shape their policy in regard to these subjects in accordance with a truly representative and powerful Legislature. And then the Council of State which is part of that Legislature can not remain a mere Grand Committee but must become a true Second Chamber.

This was the conclusion of the Joint Committee also. They said "The Committee do not accept the device of carrying Government measures though the Council of State without reference to the Legislative Assembly in cases where the latter body can not be got to assent to a law which the Governor-General considers as essential. Under the Scheme which the Committee propose to substitute for this procedure, there is no necessity to retain the Council of State as an organ for Government legislation. It should therefore be reconstituted from the commencement as a true Second Chamber."

The financial powers of the Council of State will be explained more particularly later on. But suffice it to say at this stage that the Council of State is not meant to override the Assembly. It is strictly a 'revising' Chamber. Though it has powers of legislation coordinate with those of the Assembly, it has no control over the purse. In a Joint Sitting it has no chance of defeating a proposal of the Assembly because it has only sixty members as against the 140 of the Assembly. As has been well remarked, the

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