The East India Company first started its operations as a trading company in India and gradually acquired political influence. The Crown in England became the legislative authority in respect of areas which had come under the control of the East India Company. The Indian Councils Act of 1861, section 22, gave power to the Governor-General in Council, with additional nominated members, to make laws.

Indian Council Acts

The constitutional position therefore was that the British Parliament was the sovereign body which passed the Indian Councils Act. It gave the Governor-General in Council in his legislative capacity powers to make laws over the territories in India under the governance of the Crown. Under the English Constitution the British Parliament with its legislative authority in the King and the two Houses of Parliament is supreme and its sovereignty cannot be challenged anywhere.

It has no written Charter to define or limit its power and authority. Its powers are a result of convention but are now recognised as completely absolute, uncontrolled and unfettered.

Sir Cecil Cart in his book on English Administrative Law at page 15 observes:

“A more basic difference between the Constitutions of the United States and Britain is the notorious fact that Britain has no written Constitution, no fundamental statute which serves as a touchstone for all other legislation and which cannot be altered save by some specially solemn and dilatory process. In Britain the King in Parliament is all powerful. There is no Act which cannot be passed and will not be valid within the ordinary limits of judicial interpretation………… Even Magna Carts is not inviolate………

The efficient secret of the English Constitution was the close union and nearly complete fusion of the executive and legislative powers. In other words by the system of Cabinet Government the executive authority is entrusted to a committee consisting of members of the dominant party in the legislature and in the country.”

Donoughmore Committee

In England, when occasions of conferment of powers on subordinate bodies became frequent and assumed larger scope, questions about the advisability of that procedure were raised and a Committee on the Minister’s Powers, what is generally described as the Donoughmore Committee was appointed. The Committee recommended that certain cautions should be observed by the Parliament in the matter of conferment of such powers on subordinate bodies.

Under a rigid constitution, the term “constitutional” means that a particular enactment belongs to the articles of the constitution and cannot be legally changed with the same ease and in the same manner as ordinary laws, and it is because of this characteristic that courts are invested with powers to determine whether a particular legislation is permitted or not by the constitution. Such a question can never arise in respect of an enactment of the British Parliament.

As against this, the Governor-General in Council with legislative powers established under the Indian Councils Act stood in a different position. Its charter was the Indian Councils Act. Its powers were there necessarily defined and limited. That power, again, at any time could be withdrawn, altered and expanded or further curtailed. Moreover, as the powers were conferred by an Act of the British parliament, the question whether the action of the Governor-General in Council in his legislative capacity was within or without its legislative power was always capable of being raised and decided by a court of law.

Dicey’s Law of the Constitution

In Dicey’s Law of the Constitution, 9th Edition the author has distinguished the position of a sovereign legislature and a subordinate law-making body. The distinction is drawn from the fact that the subordinate legislatures have a limited power of making laws. At page 99, he has specifically considered the position of the legislative Council of British India prior to 1915 and stated as follows:–

“Laws are made for British India by a Legislative Council having very wide powers of Legislation. This Council, or, as it is technically expressed, the Governor-General in Council, can pass laws as important as any Acts passed by the British Parliament. But the authority of the Council in the way of law-making is as completely subordinate to, and as much dependent upon, Acts of Parliament as is the power of the London and North Western Railway Company to make bye- laws……

Now observe, that under these Acts the Indian Council is in the strictest sense a non-sovereign legislative body, and this independently of the fact that the laws or regulations made by the Governor-General in Council can be annulled or disallowed by the Crown; and note that the position of the Council exhibits all the marks or notes of legislative subordination.

(1) The Council is bound by a large number of rules which cannot be changed by the Indian legislative body itself and which can be changed by the superior power of the Imperial parliament.

(2) The Acts themselves, from which the Council derives its authority, cannot be changed by the Council and…… they stand in marked contrast with the laws or regulations which the Council is empowered to make. These fundamental rules contain, it must be added, a number of specific restrictions on the subjects with regard to which the Council may legislate……

(3) The courts in India …… may, when the occasion arises, pronounce upon the validity or constitutionality of laws made by the Indian Council.”

Nature of Indian Legislature between 1861 to 1915

It is therefore clear that the Indian Legislature in 1861 and upto 1915 was a subordinate legislature and not a sovereign legislature. At this stage it may again be noticed that the Government was unitary and not federal. There was no distribution of legislative powers as between the Centre and the different Provinces. Another important factor to be borne in mind is that while the British Parliament was supreme, its executive Government came into power and remained in power so long only as the Parliament allowed it to remain and the Parliament itself was not dissolved.

The result is that the executive government was a part of the legislature and the legislature controlled the actions of the executive. Indeed, the legislature was thus supreme and was in a position effectively to direct the actions of the executive government. In India the position was quite different if not the reverse. The Governor-General was appointed by the Crown and even after the expansion of the legislative body before the Government of India Act of 1915 in numbers, it had no control over the executive.

Nature of Indian Legislature Prior to Government of India Act of 1915

In respect of the Indian Legislature functioning prior to the Government of India Act of 1915 the control from the Secretary of State was justified on the ground that the Provincial Legislatures were but an enlargement of the executive government for the purpose of making laws and were no more than mere advisory bodies without any semblance of power.

The executive Government of India was not responsible to the Indian Legislature and the composition of the Indian Legislature was such that the executive officers together with the nominated members constituted the majority in the Legislature.

The result was that the Legislative Council was practically a creature of the executive Government of India and its functions were practically limited to registering the decrees of the executive government. It would not be wrong, according to Mr. Cowell in his lecture on “Courts and Legislative Authorities in India,” to describe the laws made in the Legislative Councils as in reality the orders of Government.

Every Bill passed by the Governor General’s Council required his assent to become an Act. The Indian Councils Act of 1892 empowered the Governor-General in Council, with the approval of the Secretary of State in Council, to make regulations as to the conditions under which nomination of the additional members should be made. The word `election’ was carefully avoided. The existence of a strong official block in the Councils was the important feature of the Act.

As noticed by a writer on Indian Constitution, the Government maintained a tight and close control over the conduct of official members in the Legislature and they were not allowed to vote as they pleased. They were not expected to ask questions or move resolutions or (in some Councils) to intervene in debate without Government’s approval.

Their main function was to vote–to vote with the Government. However eloquent the non-official speakers might talk and however reasonable and weighty their arguments might be, when the time for voting came the silent official flanks stepped in and decided the matter against them.

Government of India Act of 1909,

All these factors contributed to the unreality of the proceedings in the Council because the number of elected members was small and the issue was often known beforehand. Speaking in the House of Lords in December 1908 on the Bill which resulted in the Government of India Act of 1909, Lord Morley, the then Secretary of State for India, declared:

“If I were attempting to set up a Parliamentary system in India, or if it could be said that this chapter of rules led directly or necessarily up to the establishment of a Parliamentary system in India. I for one would have nothing at all to do with it……… A Parliamentary system is not at all the goal to which I would for one moment aspire.”

The executive government was thus supreme and was not bound to obey or carry out the mandates of the legislature. Instances where Finance Bills were rejected and other Bills were backed by the popular feeling and which decisions the Governor-General overruled, are well known.

The Indian Legislature was powerless to do anything in the matter. Without the consent of the executive government no Bill could be made into an Act nor could an Act be amended or repealed without its consent. The possibility of the Legislature recalling the power given tinder an Act to the executive against the latter’s consent was therefore nil. Once an Act giving such power (like the Delhi Laws Act) was passed, practically the power was irrevocable.

Act of 1915

The legislative power of the Indian Legislature came to be changed as a result of the Act of 1915 by the creation of Provincial legislatures. Diarchy was thus created but there was no federation under the Act of 1915.

Government of India Act, 1935

Under the Government of India Act, 1935, the legislative powers were distributed between the Central legislature and the Provincial legislature, each being given exclusive powers in respect of certain items mentioned in Lists I and II of the Seventh Schedule. List III contained subjects on which it was open to the Centre or the Province to legislate and the residuary power of legislation was controlled by section 104.

This Act however was still passed by the British Parliament and therefore the powers of the Indian Central legislature as well as the Provincial legislatures were capable of being altered, expanded or limited according to the desire of the British Parliament without the Indian legislature or the people of India having any voice in the matter. Even under this Act, the executive government was not responsible to the Central Legislature or the Provincial Legislature, as the case may be.

Indian Independence Act, 1947

The result of the Indian Independence Act, 1947, was to remove the authority of the British Parliament to make any laws for India. The Indian Central Legislature was given power to convert itself into a Constituent Assembly to frame a Constitution for India, including the power to amend or repeal the Government of India Act, 1935, which till the new Constitution was adopted, was to be the Constitution of the country. Even with that change it may be noticed that the executive government was not responsible to the Central Legislature. In fact with the removal of the control of the Parliament it ceased to be responsible to anyone.

Powers under Constitution of India

Under the Constitution of India as adopted on the 26th of January, 1950, the executive government of the Union is vested in the President acting on the advice of the Ministers. A Parliament is established to make laws and a Supreme Court is established with the powers defined in different articles of the Constitution. The executive, legislative and judicial functions of the Government, which have to be discharged, were thus distributed but the articles giving power to these bodies do not vest the legislative or judicial powers in these bodies expressly.

Under the Constitution of India, the Ministers are responsible to the legislatures and to that extent the scheme of the British Parliament is adopted in the Constitution. While however that characteristic of the British Parliament is given to the Indian Legislature, the principal point of distinction between the British Parliament and the Indian Parliament remains and that is that the Indian Parliament is the creature of the Constitution of India and its powers, rights, privileges and obligations have to be found in the relevant articles of the Constitution of India. It is not a sovereign body, uncontrolled with unlimited powers.

The Constitution of India has conferred on the Indian Parliament powers to make laws in respect of matters specified in the appropriate places and Schedules, and curtailed its rights and powers under certain other articles and in particular by the articles found in Chapter III dealing with Fundamental Rights. In case of emergency where the safety of the Union of India is in danger, the President is given express power to suspend the Constitution and assume all legislative powers.

Similarly, in the event of the breaking down of the administrative machinery of a State, the President is given powers under article 257 to assume both legislative and executive powers in the manner and to the extent found in the article. There can be no doubt that subject to all these limitations and controls, within the scope of its powers and on the subjects on which it is empowered to make law the Legislature is supreme and its powers are plenary.