Two chaabers so dif ferent in coaplexion are boumd, on

occapsions, t o differ in view and the Government ol India A c t

seeks t o provide methods of avoiding or composing such d9f fe r -

encss. The three means devised by the Act or by s t a tu to ry rules

under i t are J o i n t Committees, Joint Conferences, and Joint;

Sittings. Tke first is n means of forestall ing d i f fa rances

a n d expeditfng the passage of a part f cular b i U . The adoption

of t h i s procedure requires, a formal resol.ution in each ctmmber a

and each nmnimtes m equal number of n~errlbers. The second,means

to be used when a difference of opinion has arisen. At a Jo in t

conference each chnber is represented by an equal number of

members but no decision is taken. IChe results of a canzference

are t o be looked f o r in the subsequent proceedings of either o r

both ah<mbers, The case is di f fe ren t where tho third means fs

adopted, Where the origfnatlng and the revkslng chambers have

failed t o reach ag~eemenl within s ix months of the passing of

the B i l l by the o r i g i n a f i ~ charrlber i t rests with the Governor-

~eneral In his discretion t o . convene a joint s i t t i n g of both.,

chambers at which those present def iberate and vote upon the

B i l l in the shapje given t o it by the or ig ina t ing House and on

the outstrtndZng amendments* 1%e decision there taken is deeaod

t o be %he declsim of both chambers, T k l s methad of composing

diffepsxlces is more suited t o general l eg is la t ian than t o

FLnanoe B i l l s for i t my not be adopted till six months have

elapsed since the passage of the Bill in the original chamber.

p ~ a c t ice however i t has never bean employed for either ."-

purpose,

The scheue fo r the Council of ;tats conwined in the

liontf ord Report differed nater la l ly DOEI tho plm ultimately

adopted and ergbodied in the Government o f hdla Act. The

au thors or" the Jofn t ?depart intenaedl the Counell of Sta te t o be

"the f i n a l l e g i s l a t i v e authority .Ln nat ters t21ich the Govermen t

regards as essential", and therefore afsnsd at c r e a t w ''a 3e~arat .e

constitutional body in which Government would be able t o c o m n d

mnf ority ,Ii &k. Montagu and bra Chelmsford disclafived the fn-

tention of h s t i t u t f n g a corn~lc te bitanera1 system and rsgszrded

the Council of Gtate rather as a chamber of appeal from the

refusal of the lower Mouse to pass necessary legislation. ft

would therefore have performed I U U C ~ the sane function as the

Grand Cowuitt~es &ich they proposed for the provinces. If the

Legislative Assembly passed such I.egfs3ation and the Council of

S t a t e agreed with it w e l l and good: but if not, the Council of

state could sf ill be rel ied m t o authorAae what- was needed.

Thua, ff the Executive Government f aund itself unable to secure

from the Assembly i ts essential l e g f e h t i o n and i t s supplies,

the p l a n of the J o b t Report was to provide, "means POP use m

speck1 ocoasfons, of placfhg m the Statute Book after f u l l

publ ic i ty and dlscussina an p~rmanent measures t o whlch the

majority of members 2n the L e g l s h t l v e Assembly may be unwi l l ing

to aos'entrl T?B~ method they proposed was t h ~ t if the hg&Uabfve

Assembly refused t o authorllse ah ind i sgensable mcasure, the

Govrrmor-General- i a - C o m o i l mlgh t cert Ffy that the B i l l was

essential t o the intemsts of peace, ordel or mod governmerlt; and

tlzereupon after it had pssed through a l l i t s stages in the

Council of State the 3111 would beaome a kr-~ uitlnotat further

~e$erence $ 0 the Asaembfy. r , -

I I "+ _-+ I

L' 'The L i $ ~ o ~ t on Indian Constitutional riefnfiqs, mm R 7 t . !& ds 4 -

The Government of India B i l l k:as fnfrduced into Far-

liCLaent with prwisians fm the Council of Sta te wblch f o l l m ~ e d

these ltnes, The Joint Select Cmi:littee t o which the B i l l I-ras

ref erred ref ected t he plan altogether. Xrt reported t k t it; d l d

not "accept the device In the Bill as drafted or carryhg govern-

gent measures through the Council. of State wlthfiuf reference t o

the IegfsLative Assembly i n cases where the l a t t e r b d y c m o t

be gnt t o assent t o a law tthich the Governor-General cansidered

essential. kder t i e scheme F!!~Ic~ the Comoittee proposed t o

substitnta for t h i s procedure, there was no necessity t o r e t ab

the Council of S t a t e as an organ 03 ggoverment legislatim.

It should therefore be reconstituted fron the coimencexLnt as a

true Second Chamber," The al temtivc: scheme t o 1111fch the

cornittee referred t ias the plan, now efiibotlled in the Act, 'by

tshich the Governor-General may car t i f y that it is essential lo?

the safety, tranquility ox hterests ol British India that a

Bill which chamber of the bdhan Legislature refused

t o pass should become law. The view of the Joint C m i t t e e

was that, while the Governor-General, In-Council must in a l l

cimurnstances be full? empowered t o secure legislation required

for the discharge of his ~esponsfbillties, "it is unworthy that

such responsibility should be cmcealeu through the action of

a Council of State speslally devised h f ts composition t o se-

cure the necessarj p&ers."

aQkUwLQ pgn the Joint, Resort:

It i s fmportmf; t o bear i n mind that the reco~iltl~endatf~ns

of the h t a g u - Report were not in a l l respects adopted and cnrrfed /-

out by the aeotionlabf the Gwerment of India Act 1915. The Bill

as introduced represented the result of discussions which had

t a k a place be tween the Governnentof h d la, the Provinc fa1 Govern-

ments :md the hperial Goverm~ent. In the course oi' its passage

through Parliment i t was aaended fn sorrle mteridl. respects in

accordance with the recon~~endatians of the J o i n t Select

Camittee of both the gouses of parliament t o xhich i@s refe-

rred of t r l~ic!~ cornittee 1k. Hmtagu tras an i n f l u e i ~ t la1 men]& r ,

For example, the Report devf sed a plan by which the Govermmt

of h d i z could secure the passage of l egf s l a t fve measure ~ l h i c h

it re~arded as essential, rotwithstand i n ~ the opposition of the

majority of the leg is lat ive Assembly by carrying it B i l l through

an Upper House in which there was an o f f i c i a l s ~ a j o r i t y , The

Viceroyt s assent to - a measure so cwrr ied through the upper House

null if ied the effec*f its reject ion by the lower House.

, , . . . . ,The lower house would have enjoyed hcreased

"Ogportmitf es of influencing government ," but the au tho r i t y

of the Government of India in essential matterca neverthelens would

r e m a "indisputable". It was manifestly an important altera-

tion for the Joint Select Committee t o modify the scheme, as i t

d i d by making the assent of the Legislative ~ssemblQsasntial

t o the passage of legislation, subject t o the power of the

Governor-General in cases of emerdency t o place a new law upon

the Statute B o d , by mars cextif icatlon, wit11 or w i t h o u t the

c+mseat of the Council of State, and t r l thou t my concurrence . m

from the other bnrnch of the ~e~islature.

2 Indian Statutory Con~issfan %port, Vol, TI. pp. E2-123,

The Goverrlor-C-eneral cou ld thus secure the enachrmt

of a Bill t&ose wssage in the fo rw considered t o be necessary

f s rel"use8 by the h d i a n legislature by ce r t i f y ing tha t the B i l l

is essential for- the safety, tranquility or fn'l;erests oi' Err i t is11

M i a or my part thereof. If the B i l l Fn the f crm in which

the Governor-General considers e s a w l i a l is ze Jecf sd by me

charaber before b e b g l a i d before the other, the latter is given

tho op;lortunity of consent* t o i t , though if does not do so

the signat we of the Governor-General validates the Act . T h i s Dotier of ce r t i f i ca t ion has fact been used

. ,

four tines since the I?ePorms were p u t in to Tome. The f i r s t

occasion was in 1922/Wten Lord fiead ing over-rode the lssemblg

by certifying the R h c e s Protection Act. The Secmd a n d thfl$

occasions were in 1923 and I924 when the annual F h m l c e Bill

had t o be certif ied* The last occasion bas in 1Z5 trhen a B i l l

became law by the Governor-General1 s csrt i f t c ~ ~ , t e t o supple!~enf

the Bengal Criminal Law Amendma t Act or" that ysar -- a ~f ;ov inc l aZ

Act ??hich had been ce r t i f i ed by the Goirc~lor of $engal. On

a l l f ow occasims the Colmcll of S t a t e approved tb .oB i l l . . . . . , . . , . . . . , . . ,When the Governor- General feels hj~uself c o n i ~ e l l e d t o

"cextiry" the Act has t o be laid hei'ore both i-ious~s of h r l i z -

ment and has no effect until it has subsequently received Rfs

Wgestfl s assent. But provision is mda that ~ ~ h e r a 5n the 1

ophSm of the Governor-General, a skate of 'h~er?encp exLs t s

wliich justffiss such action the Gov~rno~-Generzl inag rlii-ect t h r t t

'>be Act trhich he has certia"ie8 shall cone into operation ?o&h

u,ith. It thereupon does so, subject, hovever, t o 3 isal.lot:~ance

bj H,M. I s Council.

The Oavernment measure ~lk-lch excited the gxestest

opposffion bas a Bi13. t o prevoazt tkie disse~~inat ian, by nem of

books, newspapers md othex docufi~ents, 03 ~ a t t e ~ oalculated t o

brlng in to batred ox conkcrapt, or t o exc i te disaffection ayalnst ,

fiZaces or ChieCs of States in h d i a or- the govemh~snts or ad-

ministrations established such states. This B i l l was a t first

fnfroduced in 1;Re $aser;lblg on 23rd Septeniler, Sir Yillfam V i n -

c e n t re-mrlred that the Press Act co?~infttel had not negatived the

idea that such legislatioh m i ~ h t be necessary future, but had

only stated t h a t adequate naterial Imd not Been brought be for.^

the melrbera t o justify their- recornlending such l e g i s l ~ t i m af

the then 3 unc tian, The Goverment of Ind ia as a te~hole h d not

asserted that v im part ic~xlarly in the I l g h t of recent circun-

s t m c s s . After referr- t o t;*elemnt portion of H,E. the

viceray's inaugural addxess earlier in the session he observed

that the Gaverm~ent had come t o the conclusion that t h i s 1 w P -

s3.atim was necessary under the t e r a of tho treaties in

accordance uith royal pronouncenents re the protect ion of the

princes and chiefs. It'Jlhe Government of Gaia are pledged t o

accord t o the princes ssld States in I n d i a the fn12 p ~ o t e ~ t i o n of

their honour, rmk and dignity, and t o wa in tab mimpaired the lr

privileges and the& rights". Another reason *"or this maasuse

Y~EB t6t it had been Pound an examination t o be necessary. There

bad been a number of cases fyi which protection. of this character

h d been justly required end der~mded, Then, there are States

in trhich the preaching of d i s f f e c t i o n against the Gav~rment in

British I n d i a was penalized. !!Can we," he enquired, lrU justice

withhold from those states that protection agabst the ?reaching

of disaffection against then in British hdia trhich tkep afford

t o us? Further Sn mj case, was i t possible t o allow Indian

S t a t e s t o be centers of disaffection against the ~ o v e r n n ~ e a ~ f

M i a ? "If the answer is i n the negative ou.711t we not, in a l l

fairness and in all justice, t o prevent British Wia frm being

a centre f o r moveuents of disaffection against then?" h

delence or the measure S i r Willian further urged that he d i d

not expect that the bill would stifle legitimate criticism, and

that a11 possible safeguards in th i s respect had been Inserted

in the measure, kfl?ich foUowed closely the principles of Ehelisk

Law. Mmshi fswar 5 a m Wongly opposed the proposal afffrzling

that in hKs opinion no case had been made out for it. He based

his appositiofi prfncipaUg an the report of the press Act

Committee and he contended t h t there ms no reason why Inllan

prhccs should not avail .l.hemseJ.ves of the ord lmry provisions

of the l a w , ' 'htrduce, if you likew, he remarked, " a measure

b this House which woud give protection t o the subjects RE

well as t o the Indim princes t place such a measure before us,

and we shall then be inclined to considcx i t , h u t a one-sided

measure like this in which you try t o do cotking for t h e subjects

of the Indian princes is me, I submit, which c w o t be acceptable

t o this

By 45 votes t o 41, leave t o introduce the b i l l was

refused b the legislative asseubly . 031 the 25th Beptember a message was read from Hf s

maellency the aovemnor-General-In-Council of state announcing

that ha h a d , in exerct se of the powers cant erred by sub-sect ton( 1)

of Section 67 ;7 of the Government of fndia Act, cer t i f ied that

the B i l l . rbms essential for the Interests of British Xndb and

recom~lwnd h g tha t it be passed In the l a m in whf ch it was

presented. The constitutional aspact of the case was e q l a i n e d

by Sir AZexrtnder Mt~ddiman, who pointed out tbi?t the ccr t f f lca te

havlng been given by the Governor-General the B i l l could rrithout

int&rudctim, be taken h t o consideration and pas~:ed by the

Council., He pointed out that the B i l l vrati not aerelj g e r t i i i e d

b i l l but also a recomended 'bSZ1, and therefore, If the b i l l

was passed by the Council in a fom not r~cmlended by the

Governor-General f f would still, on sfgmture by the Governor-

Geneml become an Act in the form in trllrck it had been presented,

Sir Alexander added that i f the b i l l tras passed b t o law i t

aust be laid Before the Houses of Parliament and any obser-vatlons

the Council made uust inevitably t h ~ r e f o r e , cone under the

consddaxatfon of the Ebther of parliaments, Br. 'Fhompsm in

moving that the B i l l be taken L n t o cansideration, s ta ted that

the Gover~mnt felt .that varf ous apnrehens Sans might be created

In the minds of Indian rulars of Indian states if imedfate

action was not taken, It was eventually agreed tha t t h e Bill

should be taken fnto consideration on 2bth. In the Assembly the

question of Lhs b f l l was again raised when bk. Pagacharisr sought

the adjour#rP& of the House t o cnnsfdsr the s i tua t ion created

the' cart if icatian of the pre as BIU by the Vtceroy , but h i s

motion was rqed out of order as the Rouse could dLsauss un l y

those subjects which concerned the Governor-Gaheral- i n -C o ~ n c il

and could not .invade the province of the Govexnor-General.

The Erne member ,that the only way Fn which the bill could come

agatn bafore thh House IIBS If the Viceroy renoved his certifi-

cation: and if the House %.ranted its removal it should give

a guarantee of its attitude so that he might go and advise tho

Viceroy an the d k s i r e of the Ilouse. lr. Fhnbchariar and S I X

Deva Prasad Eetrhdhikary promised t o reconsider the biJ-2 if

suff icfent natesial was supplied t o them to jus t i fy it:;

enactment. On the norning of the 26th S i r U i l l i a i ~ i Vfncent

m o u n c s d , with regret3 that despl t s t he utnost endeavours of

Government members and some nm-afflc ials who h a d cnnferred

with them they had Pealled, m , a c c o w t of circumstanc~s beymd

t h e i r control t o come t o any satisfactory solution regardb-g

the impasse an the Presa Bill.

The Press Bill came up before the Council of h a t e

on the 26th and, af t e x nearly five hours d iscusslon tras mssed

with only one d i y t i e n t voice. Rof. h l e r~oved that the

cansideration of the BUI be postpaned till early next year as

they had neither had sufffclent t i r r w t o consider the b i l l not had

sufficient material been supplied t o them. The motion b r a s -

slagpprted by S t r Banode l % t t a r , Sfrdar Jogendm Sfngh, h l a b l m i

8mmldas and Idr. G.S. Khaparda. It was opposed both by

~ o ~ e & a n f and a few nm-offfctal members and tras rejected,

In, view of recnxxing attacks on fhdtan princes of which there

had been no les3 than 170 in the year e a d h g >by 1922,

Mr. Thompson w g e d the Council t o pass the b e l l ctnd th~reby

avoid ehntaganisLng the rulers of 3/3 oi' t h i s country , vtlo

had given their unfa i l i ng support dl?ring the great

The 3111 vas supported among others, by Sir .bthur

Room, S i r Edgar Halberton swd the Fiaja of kllengode.

Several, mendiwnfs were nroved by Prof. Kale and l~k. KbpaAe

whf ch were either Lost o r vitlzd~wn. But the IIome member

prozised t h a t the Government would consider very mrsf rally

the suggestfm of non-offfclals thet no Court other than a

Seasions Court should be competent to t r y cases under this

Act and also t o examine any defect that mfgl~t be disclosed

and then t o bring i l~mrd mendmenfis. The B i l l kiss passed,

wfthout any amendments by tbe Councfl of State .

CertJ$icwtinn of the Fbanca B u :

QI fhs budgets of 1921-22 and 1922-23 the assegbly

made cuts in expenditwe a d the Government accepted the sale

h c l u d b g rcauctims fn Salt -Duty and hport duty on cottan,

pfnce-goods in the latter. Ratu~al ly the Cowc i l of State con-

curred. But when the Budget for 1923-24 come up 'before the

assembly the ~ o v e w e n t proposal for doublbp: the ,s3.t duty

$,rm Bs, L4-0 t o b. 2-8-0 p r mama t o meet the d e f i c i t of

RB.. 5.85 c*ores was negatived by 59 t o 44 votes. The Governor.

Geha~al used special powers a d recommended the Fimrice B i l l

in the origlnal form includhg the doublad 3alf Duty. The

Comcil of State wssed it by 2B votes agaiqsf 10 i nd ica t iq~ hmr

the Govermenf could rel* on uTper chamber in any cruc ial hour.

Most of the elected !nembers sent by the Provincial legislatures

vehementEy opposed the doubling oi the Szlt duty but the

Ffnance l h b e r Sir lksil Blackett rercninecl adammt and it was

passed,

On a further occasfon the CounciJ. of State passed the

Bfnance Bill rejected by the Assembly and ce r t i f i ed by t h e

Governor-General as necessa~y . In the SRC ond Assen~bly elected

a t the end of 1923 the Gwarajists under the leadership/~andtt

Notila1 mehru apgeared t o be !neck the reforms from within the

leg isla tme. Naturally the cleavage botween the Assembly and

the Council of Stafa became much wiier. A reaolutim was moved

in the ~sssmbly xeecwunend t o the Governor-General- fi- co~mc il.

that he be pleaded t o take necessary steps fo r revishjng the

Governn~ent of Ldi& Act nso as t o secure for India full self-

governing domini on StatIls within the Bxitf sh t h p f ~ e Provincial

antanorng in t he provinces . 'I !?he Gotrernn~en t apposed the swaraj ist s

amendment suggesting a xeprc ssnt~ ti ve Round Table Conference for

considarbg the rights of the minorities, BLssolutim of the

cmtral legislature and consideration of the proposed scheme by

a newly elected legislature. As the Government d f d not act

acconlfng t o the Wacision of the Assembly the latter took the

unprecedented step of thxuwbg out h their antlrefy items not

lees than fom of the best revenue earning departments when the

FudgeE tame ua before i t in Idarch 24. The demand under bcms-Tax

was thrown out by 61 votes against 60, t ha t under salt duty b$ 62

against 53 and that under opium by 62 votes against 57. ?or

other fkema the Swarajist leader d f d not press h i s opnoaitio:?.

But when an hkrch 17th the Finace-Hember moved t ha t the k d lm

Fhar?ce B i l l be taken in to cnnsid.dleratinn, Fandi8 W a n Mom

5IaJa~ya urged upan the House the immediate rejectfon of the

B i l l . After sane discussion the consfderatlon of the B i l l

rms refused by bO against 57. I% also made b.10 cuts in the

demands, Re. 100 lakhs under Forests and Rs. 25 lakhs Under

Railrrajrs, Naturally thesefore the go vex no^-General had t o

use his speclal powers and recommend the original Finance Bill

t o the Co~mcll of State and *he Bill was accordfngly passed by

a subs tank i a l majority.

m a 1 C-al Law ~msndment(~un~1ementar.y~ Bill,

The Assenbly rejected an essential clause in the

. B i l l which sought t o give the Government spe ical powers t o deal

with the Increasing revolutionary crirnss which had st~bxZ;ed in

$engal since 1924. The Governor-General cert lf l e d the B i l l as

ssaential t o the peace and tranquility of hdla a n d the Bill was

passed by the Counofl of State as ~ecomended. Tbe Governor-

G e n e r a l recomaded it as he felt that the melancholy serf es of

orimes and outrages: Eaad rendered necessary the enactment of a

specla1 f eg%slratian In Bengal. This B i l l was In fact a supple-

n m t fa .the m e afxeady rejectd by the Bangal' s representatives L -

$n 'their Provineiaf Council and therea$rter cert i f ied, by Benga~'s

Gotrer&or Lord Lyf8'39c. I t was also rejected by Ind t a t s repre-

sentat ivs s in the fmperial legislative Assembly and, theref ore,

cer t f f ied by h d i a ' s ruler, Zord Reac~ing . The representatives

OF Bengal. mhssitatingly and In no uncertain terns condemned

this Black B i l l . The l ead~rs of public opinion in Bengal hat!

argued the IP case very ably in the provlncfa?. co~lnc i l w i t & aU

eloquence and talent whtch Beneal could c a m , 'he repre-

sentatives of A11 Tndia headed by etninent pleaders had argued

their aase f o r h d 9 ~ i t h a b i l i t y and ptrfotism and also a seas8

o r sesponsibiliEy which f s rarefy surpassed by any democr,stic

assembly in the World. Nevertheless His &cellency after

l f s t e n h g these argument;s.,;,cmsidered that it was essentfal

for the good Government of India a n d for the t m q u i l i t y of

Dengal t o cert ify this- meRstira and had asked the House t o pass

it. Vigorous arguments were advanced a3alnst the Bill by sme

responsible members of the Council o q t a t e . A representative a+"

of 3urma3 recorded h i s protest:

!I am ent irelg opposed t o the princfples that underlfe

the Bill , . . . . . .The suspension of the kbeaa Corpus is

most axf ~ a o P d fnrary procedure, a procedure which deprive E t h ~

citiaen of his most cherfshed r ight ..... There is an hpresston in the country t ha t the CouncLl

of State fs the handmaid of the Govermmt of India and that it

ex i s t s in the constitution t o rsgfster the decrease . +-- .. of the

'Gove~nraent of Wia, And even that the Council to-day is - . 'off.ered an ulthatm fn the shape of not only a reconnenaed b i l l . < & $qt n , c e~ t i f i ed by the Viceroy and Governor-General. Ye are asked

t o pass the B i l l a t the point of tho bayonet. It does not

, ,

-3,. Bon 'ble S, Vedramwthy. @ u r n : ~eneral)

cer2;.ztinly a x a z a eour'ccsjr, an ord in~ , ry c:!nrtesy clue t o

council . J: r e ~ a r d it; as ail insult to this House t o be cal- led

upon t o y a z s this B I I l . ' I

'illit11 such an emptzatLc p~otest t h e :nc:::ber r.ritkclrers fro::?

the Council ,

The above incidents shot^ hor:! th: Council of S t a t e

real ly possessed g r e a t e ~ poT:Jeys than the l o v e r clmnber and how

f t ac ted as a reactlonnry body a p l y i n c the brake t o alany pro-

gressive measures and how it acted aa the hanidrfiaid of the

executive onLnll. c r ~ c f c a l occastons. It is t r u e t h a t the

f i r s t three years of the orki king o r the r e f o r m much had been

achieved by the two chan'bers actin,? in accord wFkh each other .

There was not 3 single occasion on trhieh the C o u n c i l of State

agreed with the assamb3+y as acainst the wishes o r the Govern-

ment. On the cont~axg, there were S E ~ Y E ~ ~ O C C ~ S T O ~ S on t.rh3.cl.1

the Governor-Geneml used his s p e c i a l powers o f c e r t i f y Ln:; or

recolimendi.n$ b i l l s af te r they Zmd bser? rcjected by t h o asselu~bly

and o,r each occasion the Councfl of S t a t e suppor tad the

Govexnxent by a comfortable majority.