This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. This article talks about the object and scope of the Government of India Act, 1935. It further gives an overview of the Act along with an in-detail discussion on the powers and functions of Governors and Governor General. It also mentions the provincial autonomy and changes in the status of provinces.

This article has been published by Sneha Mahawar.

Introduction

The passage of the Government of India Bill in 1935 was based on the recommendations of the Joint Committee, which resulted in various important changes. It received royal assent on 2nd August 1935 and was passed as law. On the basis of a report on Indian finances by Sir O. Niemeyer, the Government decided to inaugurate provincial autonomy under the Act on 1st April 1937 and then the federation. The Act was divided into 451 clauses and 15 schedules, making it the most complicated document ever passed by the British Parliament. It is said to be the longest Act passed by the British Parliament and includes within it the Government of Burma Act, 1935. 

Objective of the Government of India Act, 1935

The Act of 1919 established ‘dyarchy’ in the provinces but the Act of 1935 was enacted with the aim to establish ‘dyarchy’ at the centre. The object was to meet the needs of Indians to have a responsible government in the country. It was for the first through this Act, that an attempt was made to bring the Indian princely states together and associate them with the constitutional set-up and centre in India. However, there was no preamble in the Act. As stated by Sir Hoare, there was no need for any new preamble for the Act because there is no new pronouncement of policy in the Act nor the intention to pass such an Act was required.

Schedules in the Government of India Act, 1935

The Act is divided into the following Schedules:

• Schedule I – Composition of the federal legislature. 
• Schedule II – Provisions that can be amended without affecting the accession.
• Schedule III – Talks about the Governor-General and governors.
• Schedule IV – Oaths and affirmations.
• Schedule V – Composition of provincial legislatures.
• Schedule VI – Franchise.
• Schedule VII – Legislative lists.
• Schedule VIII – Federal Railway Authority.
• Schedule IX – Establishment of a federation.
• The next remaining 6 schedules are related to Burma.

Features of the Government of India Act, 1935

• Under the Act, accession was made compulsory for the British Indian provinces but kept optional for the Indian states. Indian states, on the other hand, if they wanted to accede to the federation, had to execute the instrument of accession by delegating the powers to the federal government. 
• The Act provided complete autonomy to the states in their internal affairs. 
• Dyarchy was introduced at the centre, and central subjects were divided into 2 categories i.e., reserved subjects and transferred subjects. 
  • Reserved subjects: defence, external affairs, tribal areas, etc. 
  • Transferred subjects – remaining subjects are transferred to the ministers. 
  • The governor-general used his discretion in the reserved subjects while in transferred subjects, he had to act with the help and advice of the Council of Ministers. 
• The legislatures consisted of two houses namely, the Council of State and the legislative assembly having 260 and 375 members, respectively. 
• Bicameral legislature was established in 6 different provinces, namely: Madras, Bengal, Bombay, Bihar, Assam and United province. 
• The Council of State had 150 members from British India who were directly elected except for those who were appointed by Governor-General and 104 from Indian states nominated by the rulers. 
• The Act divided the subjects into 3 categories:
  • Federal list – 59 subjects,
  • Provincial list – 54 subjects, 
  • Concurrent list – 36 subjects.
• Provincial autonomy was introduced by the Act, which means that an autonomous government was established in the provinces. It was headed by the governor, who acted on behalf of the Queen and was vested with executive powers. The Council also advised him of ministers on any matters concerning the provinces. 
• It provided various provisions to safeguard the interests of the minority communities in the country. 
• The Act abolished the Indian Council and provided for the appointment of a new team of advisors by the Secretary with a minimum of 3 members and a maximum of 6. 
• It extended the communal electorate and gave more representation. 
• It also established a Federal Court in the country. 
• The British Parliament was vested with the power to amend the provisions, making them much more rigid. 
• It established a federal system of government, as a result, a federal court was also established for hearing the disputes between centres and states. 

An overview of the Government of India Act, 1935

The Act led to the reorganization of some provinces partially like Sindh was separated from Bombay and Bihar and Orissa were split into two distinct provinces. Burma and Aden were separated completely from the territory of India in 1937. The Act also established various commissions at the central level and provincial levels. These are:

• Reserve Bank of India,
• Federal Public Service Commission (FPSC) at the central level,
• Provincial Public Service Commission (PPSC) at the provincial level.

Powers of Governor-General under the Government of India Act, 1935

The Governor-General represented the crown as the constitutional head and acted on her behalf. He exercised his powers in 3 different capacities:

• Individual capacity,
• Discretionary powers,
• On the advice of the Council of Ministers.

Individual capacity

The matters in which he acts in an individual capacity are known as ‘special responsibilities.’ The Governor-General acted in an individual capacity:

• To prevent a menace to the peace and harmony in the country. 
• Safeguard the financial situation of the government.
• Imposition of discriminatory taxes on the goods originating in Britain.
• Preserve the rights and dignity of Indian rulers.
• Protect the interest of public servants. 

Discretionary powers

The powers are laid down as:

1. Executive powers

• He had the power to use his discretion in matters of defence, ecclesiastical affairs, tribunal affairs, and foreign relations.
• He had to appoint ministers from the majority party to the central legislature.
• Preside over meetings of the Council of Ministers.
• Frame rules for easy and convenient transactions in central business.

2. Legislative powers

• Summon, prorogue, and dissolve the lower house.
• Summon joint sessions of the houses.
• Disallow certain bills from being introduced.
• Refuse to assent to the bills.
• Issue ordinances.
• Issue emergency proclamation.
• Suspend the Constitution.

3. Financial power 

• Use discretion in non-votable heads of expenditure.
• Constitute 80% of the budget.
• Recommend proposals for taxation and expenditure.

On the advice of the Council of Ministers

• Ministers advise him in administrative matters of transferred subjects and they are answerable to the legislature.
• They hold office at his pleasure.
• He can remove them from the office.

Provincial autonomy 

The Act replaced dyarchy in the provinces with autonomy. It also abolished the division of provincial subjects into reserved and transferred lists. However, the provinces received a dignified status under the new Act, and the control of the centre was restricted. Under the Act of 1919, they were at the mercy of the central government and exercised only those powers which were delegated to them by the centre. But now they derive their authority from the constitution and not the centre. The government was both responsible and representative, which means that the Council of Ministers aided the Governor-General in the exercise of his powers, but there were certain matters where he could use his discretionary powers without consulting the ministers. Thus, the Government was not fully responsible. 

Provincial government

The administration of provinces was handed to the governors on behalf of the crown under the Act. The governors of major provinces like Bombay, Madras, and Bengal were appointed by the crown seeking the advice of the Secretary of state, while the remaining were appointed by the king on the advice of the Governor-General. The tenure of all the governors was fixed as 5 years. 

Provincial executive 

The Governor was the head of the provincial government and his powers resemble the powers of the Governor-General. The three capacities in which he exercised power were:

• Discretion,
• Individual capacity,
• On the advice of the Council of Ministers.

Discretionary powers 

• Safeguard the interest of the minority groups.
• Protection of rights and privileges given to kings and princes.
• Prevent the government from being overthrown by any.
• Frame rules for the efficient transaction of the business in the country.
• Appoint the chairman and members of the Provincial Public Services Commission and decide their salaries.
• Issue acts, ordinances and laws to maintain peace and harmony.
• Summon, adjourn, and dissolve the lower house. 
• Appoint and dismiss Advocate General.

Special responsibility 

The powers in the individual capacity were to be exercised in matters of special responsibility. These were:

• Protect peace and harmony.
• Protect the interest of minorities.
• Protect the rights of civil servants.
• Protect people against any kind of discrimination.
• Secure the execution of orders.

On the advice of the Council of Ministers

• Collective responsibility was introduced under the Act in provincial autonomy.
• The matters on which the power had to be exercised on the basis of the advice of ministers were limited.

Provincial legislature

There were 11 Provinces in a total of which 6 had bicameral legislatures consisting of legislative councils and legislative assemblies. The constituencies were recognised on the basis of religion, like Muslims, Sikhs, Anglo Indians, Christians, and Europeans. The seats for scheduled castes, depressed classes, and women were reserved. The people paying any land revenue or house rent were eligible to vote, and the rest were not allowed to vote. Another qualification of a voter was to have a particular minimum education. The members were directly elected for a period of 5 years. 

The provincial legislature had the power to pass legislation on all the matters listed in the provincial list, but there were 2 limitations. These were:

• When the provinces, by way of resolution, authorize the federal government to pass the legislature,
• The legislation was in conflict with federal law. 

Powers of Governor 

1. Legislative powers

• Summon, prorogue, and dissolve the legislature.
• Address both the houses, either jointly or separately.
• Call upon the joint sessions of the houses, if necessary.
• A bill, in order to become a law, had to be signed by him. He had the power to return the bill for reconsideration or reserve it for approval by the crown.
• He also had the power to stop any bill if it is a threat to the peace and harmony of the society.
• It was necessary to take prior sanction in the following matters:
  • Any Act which extends to British India.
  • Any matter where he had to exercise his discretion.
  • Any Act passed by Governor-General or any ordinance issued by him.
  • The procedure of proceedings in criminal matters is concerned with European subjects.  

2. Power to make ordinances

• The power to issue ordinances can be exercised when the legislature is not in session or in case of emergency.
• The effectiveness of such an ordinance ceases to exist at the end of 6 weeks after the legislature is reassembled. 
• He can also issue ordinances when the assembly is in session if it is necessary or to discharge his special responsibilities.
• Such ordinances were effective for 6 months and could be extended for another 6 months by way of a notification.

3. Suspending powers

• Section 93 of the Act authorized him to proclaim an emergency when he is satisfied that the work is not done as per the provisions of the Act. 
• He could also suspend the working of the Constitution at any time.

4. Financial powers

• No bill which is related to financial matters could be introduced without his recommendations.
• He could decide whether a particular item falls into the ‘charged item’ category.
• He had the power to lay down a supplementary budget before the house if required.

Relation between the centre and provinces

The Act gave provinces a separate and partly autonomous status, unlike the Act of 1919, which gave them no distinct rights and they were controlled by the centre. The relations between the two were governed by the provisions of the Act of 1937. It can be classified as:

Legislative relations

The Act laid down the various subjects in 3 different lists so that there is clear demarcation as to who has to exercise the powers, the centre or the provinces. The lists consisting of various subject matters are: federal list, the provincial list, and the concurrent list. The federal and provincial governments had exclusive power to act when the subject matter falls in the category of the federal and provincial list respectively. While in the case of the concurrent list, the law made by the federal government prevails. 

The subjects in different lists are:

1. Federal list

• External affairs,
• Ecclesiastical affairs,
• Federal public services, 
• Maritime shipping and navigation,
• Posts and telegraph services,
• Currency,
• Development of industries,
• Duties of customs, etc.

2. Provincial list 

• Prisons,
• Courts,
• Police,
• Provincial public services,
• Trade and commerce,
• Acquisition of land,
• Local government,
• Public health and sanitation,
• Regulation of mines,
• Protection of wildlife,
• Elections to provincial legislatures, etc.

3. Concurrent list   

• Criminal law,
• Evidence and oath,
• Jurisdiction of the subordinate courts in the country,
• Electricity,
• Bankruptcy,
• Newspapers, etc.

Executive relations

In executive matters, the federal government was given more power than the provinces. The Governor-General could ask the governors to act in a particular manner or do something which is necessary for the subjects in the reserved category. He can also impose duties on the officers in a province for federal matters. He was empowered to act as an arbitrator in a dispute related to the supply of water from water resources. The federation can ask the province to acquire any land and transfer it to the federal government for federal purposes. The Governor-General was also vested with the power to recommend the British Government to set up an Inter-Provincial Council to deal with any kind of dispute between the provinces. 

Financial relations

It was clearly laid down in the Act that the federal government will provide financial help to deficit provinces that are not able to maintain their funds. The important sources to generate revenue for the federal as per the Act are:

• Custom duties,
• Excise duties,
• Tax on corporations,
• Taxes on income,
• Sale tax,
• Stamp duty,
• Terminal tax on goods carried by railway, sea or air route,
• Taxes on fares.

Sources of revenue for provinces are:

• Land revenues,
• Registration fees,
• Charges on irrigation facilities,
• Court fees,
• Income from the forest,
• Entertainment tax,
• Taxes on vehicles,
• Share in excise duty,
• Share in fares by railways. 

Secretary of state

The powers of the Secretary of State are:

• The powers of the Secretary of State under the Act of 1935 were confined to the matters in which the Governor-General had to apply his discretionary powers or act in his individual capacity.
• He was also empowered to issue directions and control the reserved departments like defence, foreign affairs, tribal areas and the Reserve Bank of India. 
• He administered the work of all other departments and worked as a constitutional advisor for the crown in matters relating to Indian affairs. 
• His position is similar to that of an agent of the British Parliament. 
• The Act abolished the Indian Council and replaced it with some advisors to the Secretary of state to help him in his work. 

Civil services under the Government of India Act, 1935

The civil servants hold office during the pleasure of the crown. The Act provided that no civil servant could be dismissed by an authority which is subordinate to the authority appointing him. While dismissing him, he should be given an opportunity to present his case and defence. But where he is dismissed due to any criminal charge on him or conviction and the authority is satisfied with the reasons, the opportunity of defence is not necessary. The Act also gives detailed rules and conditions pertaining to their appointment and conditions of service. The Secretary of the state had been given the power under the Act to make rules regarding pensions, pay, leave and medical attention to the civil servants. The civil servants also had a right to appeal against any order which affected them or the conditions of service adversely. 

Establishment of courts under the Government of India Act, 1935

Federal court

A federal court was to be established under the Act to deal with cases of disputes between the centre and the provinces. The court consisted of 3 judges which included the Chief Justice. They were appointed by the crown and served until the age of 65 years. The qualifications for a judge were:

• He must have been a judge of a high court for 5 years or,
• A lawyer who has an experience of 10 years in a high court of India or Britain.

The court had original, appellate and advisory jurisdiction as:

• It was vested with jurisdiction to hear cases of disputes between the federal government and provincial government on any question of law. 
• Its appellate jurisdiction extended to every case that involved a substantial question of law on the issue of interpretation of the Act or any order passed by the legislature.
• It was vested with advisory jurisdiction to render advice to the Governor-General on any point of law. 

High courts 

Every high court under the Act was recognised and had to function as the court of records. They have to keep a check on all other courts in their jurisdiction and could call for a return of a case, entitled to frame rules to regulate the working of all other courts and could determine the table for the fees to be taken by attorneys and advocates. It consisted of a Chief Justice and other judges as the crown may appoint. The qualifications for a judge of a High court are:

• He must have been a barrister or advocate for at least 10 years, or
• He was a member of Indian civil services for at least 10 years, or
• He held a judicial office which is not inferior to a subordinate judge or a judge of a small cause court, or 
• He had been a pleader of one high court or more for at least 10 years. 

Other provisions 

The other provisions in the Act deal with discrimination, finance, audits, property and contracts, liabilities and suits and railway authorities. The second part of the Act deals with laws relating to Burma and Aden.

Analysis of the Government of India Act, 1935

The Act is often termed to be the longest Act and provided rules and provisions for almost every sphere and field. It replaced the dyarchy from provinces to the centre and gave provinces a dignified status where they derived their authority from the constitution itself unlike the Act of 1919 where they exercised only those powers which were delegated to them by the Central Government. However, even with these features, there were many lacunas in the Act and it suffered from various flaws. 

Shortcomings of the Government of India Act, 1935

• The scheme of the federation was unsatisfactory. The Act tried to establish a federal system of government but failed. It made an attempt to bring the British provinces and Indian provinces together to which they had to accede. But they were not under an obligation to do so. Many provinces refused to join and demanded independence. 
• The federal legislatures consisted of nominees of rulers and were not chosen by the citizens. 
• The dyarchy was introduced at the centre but the government was not fully responsible as the major subjects were put under the authority of the Governor-General and his council and there was no system to keep a check on his powers. 
• There were various limitations and restrictions on the provincial autonomy which ensured the dominance of the centre over the provinces. 
• The discretionary powers of the governors and Governor-General covered the entire administration making it difficult for the people to seek remedy in case of any harassment and misconduct. 
• The country’s constitutional status as a dependency was not improved because of the power to amend the Constitution and bring any changes vested with the British Parliament. 
• There were communal riots in the country because of the determination of electorates on the basis of religion rather than population. This paved the way for the partition of the country.

With these shortcomings, people were criticizing the Act. But after the elections in 1937, Congress was firm in its decision to demand independence for the country and the people. They asked the provinces to resign after the Second World War where India was forcefully made a part of the war without the consent of the people. The British Parliament also made such laws which curtailed the powers of provinces and did not adhere to the provisions of the Act. However, the Act continued to exist till independence due to its major advantageous features and was then adopted with various changes and modifications.

Conclusion 

It can be concluded that the Act gave various provisions to enhance the rights and powers of the Indian provinces and also paved the way for the changes in the condition of the people which was miserable before the passing of the Act. It also laid the foundation of what a Constitution or an Act should look like for the Indian leaders so that they could make their own legislations after the independence. The major fault in the Act was that it gave amending power to the British Parliament which was a foreign Parliament. This outraged the people and Congress and they demanded independence. As a result of all the struggle, India successfully became an independent nation.

Frequently asked questions (FAQs)

1. What is the difference between the position and status of provinces under the Act of 1919 and the Act of 1935?

The provinces received a dignified status under the Act of 1935 and the control of the centre was restricted. Under the Act of 1919, they were at the mercy of the Central Government and exercised only those powers which were delegated to them by the centre. But now they derive their authority from the Constitution and not the centre. The government was both responsible and representative, which means that the Council of Ministers aided the Governor-General in the exercise of his powers. However, there were certain matters where he could use his discretionary powers without consulting the ministers. 

2. What were the qualifications of a judge of the federal court established under the Act? 

The qualifications for a judge were:

• He must have been a judge of a High Court for 5 years, or
• A lawyer who has an experience of 10 years in a high court of India or Britain.

The judges were appointed by the Crown and remained in office until 65 years of age. There were no other grounds for their removal which means that they were at the pleasure of the Crown. The court consisted of 3 judges including the Chief justice. 

3. What is the court of records under the Act and what is its jurisdiction?

Every high court under the Act was recognised as the court of records. They have to keep a check on all other courts in their jurisdiction and could call for a return of a case, entitled to frame rules to regulate the working of all other courts.

Its jurisdiction included:

• It was to have control over all the Indian courts. 
• It could call for returns.
• Make rules and regulations for regulating the practice and procedure in the courts.
• It has to prescribe the manner in which the documents and books were to be kept in the court. 
• Another important function of the court was to set the fees an attorney or lawyer could demand from the parties to a case.  

4. What kind of administrative and legislative relations exist between the centre and provinces as per the Act of 1935?

Administrative relations – In administrative/executive matters, the federal government was given more power than the provinces. The Governor-General could ask the governors to act in a particular manner or do something which is necessary for the subjects in the reserved category. He can also impose duties on the officers in a province for federal matters. He was empowered to act as arbitrator in a dispute related to the supply of water from water resources. The federation can ask the province to acquire any land and transfer it to the federal government for federal purposes. The Governor-General was also vested with the power to recommend the British Government to set up an inter-provincial Council to deal with any kind of dispute between the provinces. 

Legislative relations – The Act laid down the various subjects in 3 different lists so that there is clear demarcation as to who has to exercise the powers, centre or the provinces in order to avoid any confusion and dispute and to have good relations of the provinces with the centre. The lists consisting of various subjects are: 

• Federal list (59 subjects), 
• Provincial list (54 subjects) and
• Concurrent list (36 subjects). 

The federal and provincial governments had exclusive power to act when the subject matter falls in the category of the federal and provincial list respectively. While in the case of the concurrent list, the law made by the federal government prevails. 

5. Did the Government of India Act, 1935 lay down a federal Constitution?

The powers of the federal government mentioned in the Act and the subject list reveals that the federal government was more powerful than the provinces. Also, in the case of any conflict between the subjects in the concurrent list, the decision of the federal government prevailed. The establishment of a federal court is another example of the federal Constitution, but the Act had also established communal electorates on the basis of religion which made it difficult to fully establish a federal Constitution in its real sense. 

References 

• https://www.constitutionofindia.net/historical_constitutions/government_of_india_act_1935_2nd%20August%201935
• https://www.legislation.gov.uk/ukpga/1935/2/pdfs/ukpga_19350002_en.pdf
• https://www.insightsonindia.com/polity/indian-constitution/historical-underpinnings-and-evolution/crown-rule-1858-1947/government-of-india-act-of-1935/
• https://legislative.gov.in/sites/default/files/legislative_references/GOI%20act%201935.pdf
• https://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-b9de496f8751/Custom/UNIT%20III.pdf 

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