Constitution of India
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A student of faculty of law, Aligarh Muslim University, Amanat Raza, has written this article. In this article, he discusses the concept of Government of India, its features and why some of its features have been taken by our Constitution. 

Introduction 

This legislation was the longest Act passed by the British Parliament after its domination over India. It was the result of a very long process that started when the Simon Commission was appointed to look into the matter which was not satisfied by the Indian politicians. Dyarchy system that was introduced by the Government of India Act, 1919 (the “1919 Act”) did not prove to be a satisfactory experiment by the British Parliament. 

Indian politicians were frustrated at that time because they thought that the area they had officially control over was still in the hands of the British officials with full control over it. Because of this reason, these politicians wanted a check of India’s constitutional arrangements and it could be fixed. So, to review this matter and to make changes this had been given to the Simon Commission. 

The report of the Simon Commission[1] proposed to scrap the dyarchy system and instead of that, ‘responsible government in the province’ was sought to be introduced. This report brought us one step closer to the establishment of the Government of India Act, 1935 (the “1935 Act”). The material derived from the 1935 Act not only came from the Simon Commission Report but also different sources as well. These sources were the Third Round Table Conference,[2] reports of the Joint Select Committee [3] and the White Paper of 1933.

Features

This Act gives many salient features out of which some has been considered as the major ones and some as the minor ones. These salient features are given below:

  1. This Act shows the dominance power of the British Parliament or its superiority.
  2. This Act had proposed to establish an All India Federation and this federation should consist of provinces and Princely states considering both as one unit. 
  3. This Act introduced a system of Provincial Autonomy into the provinces in place of the dyarchy system. This time dyarchy was not introduced at the state level it only introduced at the central level.
  4. A federal court was established after the recommendation of this Act. This court was introduced after two years of the passing of this Act, i.e., 1937.[4]
  5. This Act provides the recommendation for the establishment of the Reserve Bank of India to control the regulation of currencies and credits of this country.
  6. After the establishment of this Act, the Council of India that was established by the Government of India Act, 1858 was abolished.
  7. Muslims, Sikhs, and others except depressed classes were provided separate electorates after the implementation of this Act.
  8. This Act proposed the expansion of Universal Adult Franchise from 3% of the population to 14% of the population.
  9. This Act gave Governor the Critical emergency powers that were only enjoyed by him.

All India Federation

This Act having a proposal to establish an All India Federation which would comprise British India Provinces and princely States. The terms on which a state could join the federation were mentioned in the Instrument of Accession. It was at the discretion of the state whether it wanted to join the federation that was given by the Government of India Act, 1935. 6 Chief Commissioner’s provinces, 11 Governor’s provinces and some states who agreed to merge in the stated federation were constituent units of that federation [5].

It had been proposed through this Act that if princely states were entitled to half of the state’s seats in the upper house of the federal legislature then the federation of India would come into existence. The part of the legislation that had not been implemented earlier was implemented after the first election under this Act was held. This legislation came into force in 1937 two years after the establishment of the Government of India Act, 1935.

The approach to form the federation and implement provincial autonomy paved the way for the division of subjects between the Centre and the Provinces. The division of subjects that were given by the Government of India Act, 1919 was revised and added some more subjects in it by this Act of 1935 and included three lists. These were:

  1. Federal list
  2. Provincial list
  3. Concurrent list

Division of powers

This Act centralized all the ruling power in one body, i.e., the Centre. Although the Center possessed a lot of power, it could not interfere in the laws made on the subjects mentioned in the provincial list by the Provinces. This is because this Act gives the province the power of autonomy i.e., they can make laws on the subject matter of the provincial list and centre will not interfere in that particular law that is made. This is the power of ‘provincial autonomy’.

The Governor-General on behalf of Majesty utilises its power either directly or through the appointment of subordinate officer(s). But this power did not prevent the federal legislature from functioning upon subordinate authorities. This Act proposed that a Finance Bill could not be placed in the Central Legislature unless the Governor-General gives his assent or his consent.

Dyarchy at centre

By this Act, dyarchy system was adopted at the central level. There were two categories of federal subjects:

  • Reserved subjects 
  • Transferred subjects.

Reserved Subjects– The subjects that are mentioned in this category of federal subjects were to be administered by the Governor-General on the advice of the Executive Councillors and the Executive Council could not exceed its limit of three members. Religious affairs, defense, administration of tribal areas and external affairs were included in the reserved subjects.

Transferred Subjects– This subject was to be administered on the advice of ministers and the number of ministers could not exceed 10. Subjects other than reserved were dealt with under the Transferred Subjects. The Governor-General had the power to dominate the ministers.

Federal legislature

This Act proposed that there should be a Federal Legislature consisting of His Majesty, and this legislature would be represented by Governor-General and two chambers, namely the Council of States and the House of Assembly (also known as the Federal Assembly in this Act). The chamber of the Federal Legislature would be summoned to meet at least once in a year.

The chamber of the federal legislature could be summoned, adjourned or dissolved by the Governor-General only who had got these powers through the Government of India Act, 1935. The language that was to be taken into consideration for the proceedings of Federal Legislature could be only in English. 

No discussion was to take place in the Federal Legislature concerning the conduct of any judge of the Federal Court or a High Court in the discharge of his duties. The Governor-General possessed extra legislative powers under this Act but was not allowed to do anything without the permission of His Majesty. 

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Council of States

This legislation proposed that there should be a Council of State which consisted of representatives from British India as well as from the Princely States. It also stated that the Council of State could not be dissolved as it got the recognition of permanent body through this Act. First Schedule of this Act gives the provision on which a member can retire or in how much amount they could be retired. It talks that one-third members of the council will retire as per this provision.

Initially, the Council of State had to choose two members of the council respectively as President and Vice President thereof, and in case the post of President and the Vice President becomes vacant, the Council would have to choose another member for the same post. If the post of the President was vacant, then Deputy President could perform his function and in the absence of Deputy President, any member of the council could exercise those functions and also it was at the discretion of the Governor-General whom to give that power.

The President, Deputy President and any person who was appointed to the post of President and Vice President at the time of vacancy, did not possess the right the assembly but at the time of equality of votes in the assembly, they exercised a ‘casting vote’. 

  • Representative of British India

In the Council of State, there were one hundred and fifty-six representatives of British India 

  • Representatives of Princely States

The Council of State consisted of one hundred and four representatives from the princely states.

Federal Assembly

This Act gave this assembly another name and that was called the House of Assembly. There were two hundred and fifty representatives from British India and not more than one hundred and twenty-five representatives of Princely States in this assembly. Each Federal Assembly was to continue for five years and the assembly could dissolve only after the completion period of these five years.

  • Provincial Autonomy

The introduction of Provincial Autonomy was one of the reclaiming features of this Act. Simon Commission recommends to add this part in the Government of India Act, 1935. Provinces were not having an Executive Council and Reserved Subjects earlier but this legislation had added these subjects. This Act discontinued the system of dyarchy or the system of division of subjects in ‘Reserved’ and ‘Transferred’.

The Council of Ministers has got the right of administering on provincial subjects except for law and order. The power to administer on the subject of law and order was in the hands of the government who was having powers superior to that of the Council of Ministers.

After the commencement or the starting of this Act, the Centre’s hold over provincial subjects was reduced. The ministers could not freely exercise their power of running their departments. The dominating power of Governor through which it dominates over the ministers was rarely used by him. The governor on the advice of Viceroy took total control over the provincial government at the time of political breakdown.

  • Safeguard and Reservation

Another characteristic of this Act was that it sought to safeguard and to provide reservation to minorities. The reason to add this characteristic feature was the dominance of the majority upon a minority. The power to make changes in the Act was solely to the British government. The Indian legislature could only pray for constitutional change after giving a resolution to Majesty’s Government. This demonstrates how this Act was not an Indian Act, but a mere imposition of rules and regulations on Indians by the British government.

  • Establishment of a federal court

This Act also proposed the establishment of a federal court to resolve disputes arising between two states or between state and federal government and also in the case where disputes arose in matters concerning the interpretation of the Constitution. It was empowered to interpret the clauses that were controversial in the Act. Although, the Federal Court was not the final court of appeal. The appeal could be made to the Privy Council in some circumstances.

  • Abolition of Indian Council

The Indian Council that was established by the Government of India Act, 1858 was abolished by this Act and in place of that council, it proposed the appointment of Secretary of State and his team which could not be more than six members and could not comprise of members less than three. The power of Secretary of State got diminished and the Governor-General became more powerful than him after the establishment of provincial autonomy through this Act.

  • Extension of franchise 

This Act introduced the extension of the franchise. Approximately 10% of the total population had the right to vote to appoint representatives to this legislature. The Act did not hold its hand over the communal electorates but it had extended it holds. For the first time, the direct election was introduced in India with the help of this Act.

  • Federal railway authority

This Act had given the command of the railway in the hands of a new authority called Federal Railway authority. The member in this authority was seven in numbers and these members were free from the control of councilors and ministers. The authority directly reported to the Governor-General. The main idea behind the establishment of this authority was to confirm the British stakeholder that the investment they have done in the railway was safe.

  • Reorganization of provinces

This Act also did some kind of restructuring or reorganization of the provinces. A province was separated from Bombay and named as Sindh. Another thing that has done was split of Bihar and Orissa to become separate individual provinces of Bihar and Orissa. So this Act formed the two new provinces and these are Sindh and Orissa.

  • Separation of Burma

Simon Commission proposed to the Government of India to separate Burma from India and this proposal was accepted by this Act. In 1935, the Burma Act was passed and its separation from India was done after two years of this Act i.e., in 1937. The Burma Act proposed for a new Burma office which had the power to establish Burma as a separate colony. 

The department of Burma and India was headed by the Secretary of State of India and Burma as he was appointed to look into the matter of both the countries and also he headed the department of both the colonies. Lord Dundas was the first person to become Secretary of State of both the colonies i.e., India and Burma.

Importance of the Act

Government of India Act 1935 curtailed the power concentrated in the hands of the Central Government and distributed it among the decentralized form of government. Separate electorates for women, although they had not asked for it, was quite good for the advancement of women in the decision making process. Even the workers had their separate representation which helped in the advancement of the workers class. This Act was the first attempt to give the provinces an autonomous status by freeing them from external interference. 

Therefore, if the province is making any decision then nobody has got the right to interfere that decision-making and also no one could assist the provinces what to do and what not to do for its subjects. Britishers have introduced this Act because through this Act they can win the support of modern nationalist and they could rule over the dominion of India.

Another reason was that this Act provides voting rights to more people than were given under the Government of India Act, 1919. This Act also proposed to form the federal government that allowed princes to participate in political affairs of India.

Although this Act was not liked by many Indians, its importance was that it paved the way for the independence of India. This Act provided the basis for negotiation between Britishers and Indians for getting independence.

Government of India Act, 1935 and the Indian Constitution 

Constitution of India was the residue of the legacy started by the Government of India Act, 1935. Some features of the Government of India Act that suited well for free India was taken into consideration by the drafters of the Indian Constitution. Features of Federal Legislature and Provincial autonomy was taken from the Government of India Act, 1935. The 1935 Act divided powers between the Centre and the Province which was better for the administration at ground level as well. 

Another feature that had been taken was provincial autonomy. This autonomy worked better for regulating the states or provinces without the interference of external authorities. Also, the states or the provinces knew their people’s condition better than any other external authority.

A Federal Court that was established in 1937 through the Government of India Act, 1935 was considered as the Supreme Court by independent India. The Constitution of India also borrowed the feature that every state should have a Governor who would be elected by the Central Government. Public Service Commission that we see in Article 315 of the Indian Constitution had also been taken from the Government of India Act, 1935.

Conclusion

The Government of India Act, 1935 was the lengthiest Act that was made before the year 1935. It consisted of 321 Sections, 14 Parts, and 10 Schedules. This Act proposed many salient features such as the creation of All India Federation, Provincial Autonomy, provision for safeguards and reservation, etc. 

These features were important for the Britishers but Indian politicians were not happy with these features although some features were adopted by the drafters of the Indian Constitution in free India. The Act of 1935 was a rigid one. It could not be amended or modified by any Indian legislature, either he was Federal or Provincial Legislature. This Act gave nearly 10% of voters the right to vote.

Providing separate electorate to Hindus, Muslims, Sikhs, etc, later on, turned out to be the tools for disintegrating India. Hence, this Act, in reality, did not help in curbing out the difficulties that had arisen in the Government of India Act, 1919. It only showed the dominion of the British Government over the Indians. Only for their benefit, they had introduced this Act. But some of its features benefitted the Indians also.

References 

  1. https://dspace.gipe.ac.in/xmlui/bitstream/handle/10973/39712/GIPE-010124-05.pdf?sequence=3&isAllowed=y
  2. http://www.open.ac.uk/researchprojects/makingbritain/content/round-table-conferences-1930-1932
  3. http://www.open.ac.uk/researchprojects/makingbritain/content/round-table-conferences-1930-1932
  4. https://shodhganga.inflibnet.ac.in/bitstream/10603/174777/10/10_chapter%204.pdf
  5. https://cadindia.clpr.org.in/historical_constitutions/government_of_india_act_1935_2nd%20August%201935

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