THE GOVERNMENT OF INDIA ACT 1935
- The Government of India Act 1935 was originally passed in August 1935 and was the longest British Act of Parliament ever enacted by that time. The Government of Burma Act 1935 was also included in it.
Background to the Act:
- Indians had increasingly been demanding a greater role in the government of their country since the late 19th century. The Indian contribution to the British war effort during the First World War meant that even the more conservative elements in the British political establishment felt the necessity of constitutional change, resulting in the Government of India Act 1919. That Act introduced a novel system of government known as provincial “dyarchy”.
- After the release and publication of Simon Commission Report when the new Labour Government succeeded in office, it declared that the Report was not final and in order to resolve the constitutional deadlock, the matter would finally considered after consulting representatives of all the Indian communities. This would be done at a Round Table Conference in London.
- After holding three sessions of Round Table Conference in 1930, 1931 and 1932 respectively, their recommendations were embodied in a White Paper published in 1933, which was considered by a Joint Select Committee of the British Parliament chaired by Lord Linlithgow. (However, division between Congress and Muslim representatives proved to be a major factor in preventing agreement as to much of the important detail of how federation would work in practice. So, the new Conservative-dominated National Government in London decided to go ahead with drafting its own proposals “the white paper“.)
- The government also constituted a committee of 20 representatives from British India and 7 from Indian States including 5 Muslims. The committee went in session from April 1933 to December 1934 for deliberation and submitted its report to Parliament in the end of 1934. The Parliament debated the report and passed a bill in February 1935, which got royal assent on July 24th 1935, and it was enforced on April 1, 1937 with the name of Government of India Act 1935.
- Although the Government of India Act 1935 was intended to go some way towards meeting Indian demands, both the detail of the bill and the lack of Indian involvement in drafting its contents meant that the Act met with a lukewarm response at best in India, while still proving too radical for a significant element in Britain.
Provisions of the Act:
The Government of India Act 1935 contained 32 Sections 14 Parts and 10 Schedules and consisted of 2 Major Parts. The Act introduced federal systemin the centre.
Provincial Part of the Act:-Introduction of Provincial Autonomy:
- The provincial part of the Act basically followed the recommendations of the Simon Commission.
- In the provinces Diarchy was abolished. There was no Reserve Subjects and no Executive Council in the provinces. The Council of Ministers was to administer all the provincial subjects except in certain matters like law and orders etc. for which the government had special responsibilities.
- The ministers were chosen from among the elected members of the provincial legislature and were collectively responsible to it.
- The British-appointed provincial governors (who were responsible to the British Government via the Viceroy and Secretary of State for India) were to accept the recommendations of the ministers unless, in their view, they negatively affected his areas of statutory “special responsibilities” such as the prevention of any grave menace to the peace or tranquility of a province, the safeguarding of the legitimate interests of minorities, rights of civil servants etc.
- In the event of political breakdown, the governor, under the supervision of the Viceroy, could take over total control of the provincial government. This, in fact, allowed the governors a more untrammeled control than any British official had enjoyed in the history of the Raj. After the resignation of the congress provincial ministries in 1939, the governors did directly rule the ex-Congress provinces throughout the war.
- It was generally recognized, that the provincial part of the Act, conferred a great deal of power and patronage on provincial politicians as long as both British officials and Indian politicians played by the rules. However, the paternalistic threat of the intervention by the British governor rankled.
Federal Part of the Act:-All India Federation:
- The India Act 1935 proposed to set up All Indian Federation comprising of the British Indian Provinces and Princely States. The constituent units of the Federation were 11 Governor’s provinces, 6 Chief Commissioner’s provinces and all those states that agreed to joint it. The States were absolutely free to join or not to join the proposed Federation.
- At the time of joining the Federation the ruler of the state was to execute an Instrument of Accession in favour of the Crown. On acceptance of that Instrument, the state was become a unit of the Federation. The ruler was however authorized to extend the functions of the federal authority in respect of his state by executing another instrument in its internal affairs.
The act proposed that federation of India could come into existence only if as many princely states were entitled to one half of the states seats in the upper house of the federal legislature.
- The terms offered to the Princes included:
- Each Prince would select his state’s representative in the Federal Legislature. There would be no pressure for Princes to democratize their administrations or allow elections for state representatives in the Federal Legislature.
- The Princes would enjoy heavy weightage. The Princely States represented about a quarter of the population of India and produced well under a quarter of its wealth.
- Unlike the provincial portion of the Act, the Federal portion was to go into effect only when half the States by weight agreed to federate. This never happened due to opposition from rulers of the princely states and the establishment of the Federation was indefinitely postponed after the outbreak of the Second World War. The remaining parts of the Act came into force in 1937, when the first elections under the act were also held.
Division of Federal Subjects:
- The scheme of federation and the provincial autonomy necessitated proper division of subjects between the centre and the provinces.
- The division under 1919 Act was revised and the 1935 Act contained three lists i.e. (1)Federal, (2)Provincial(3) Concurrent Legislative Lists.
Introduction of Dyarchy at the Centre:
- The India Act 1935 introduced Dyarchy at the centre. The Federal Subjects were divided into two categories, the Reserved and the Transferred.The reserved subjects were to be administered by the Governor-General on the advice of executive councilors, while transferred subjects were to be administered on the advice of the ministers.
- The Reserved included defence, ecclesiastical affairs, external affairs and administration of Tribal Areas. These were to be administered by the Governor General with the help of executive councilors not exceeding three in number.
- The rest of the subjects were Transferred ones. These were to be administered by the Governor General with the help of a Council of Ministers, the number of which was not to exceed 10. The Governor General by his special powers and responsibilities could dominate the ministers.
- The British Government, in the person of the Secretary of State for India, through the Governor-General of India(Viceroy) , would continue to control India’s financial obligations, defence, foreign affairs and the British Indian Army and would make the key appointments to the Reserve Bank of India and Railway Board.
- The Act stipulated that no finance bill could be placed in the Central Legislature without the consent of the Governor General. The funding for the British responsibilities and foreign obligations (e.g. loan repayments, pensions), at least 80 percent of the federal expenditures, would be non-votable and be taken off the top before any claims could be considered for social or economic development programs.
- The Viceroy, under the supervision of the Secretary of State for India, was provided with overriding and certifying powers that could, theoretically, have allowed him to rule autocratically.
Protection of Minorities:
- A very significant provision was the safeguards and protective armours for the minorities. It was argued that the minorities needed protection from the dominance of the majority community. But the so-called provisions in the Act relating to safeguards were merely a trick to empower the Governor Generaland the Governors to override the ministers and the legislators.
- The proposed federal legislature was bicameral body consisting of the Council of States (Upper House) and the Federal Assembly (Lower House).
- The strength of the Upper House(Council of States) was 260 out of which 104 nominated by the rulers were to represent the Indian States. 6 by the Governor General and 150 were to be elected.(Out of 260 members 156 were to represent the provinces and 104 to the native Indian states.)
Out of the 156 which were to represent the provinces, 150 were to be elected on communal basis. Seats reserved for Hindus, Muslims, Sikhs, were to be filled by direct elections and Seats reserved for Indian Christians, Anglo Indians and Europeans was to be filled by indirect method of a electoral college consisting of their representative members
- The lower House was to consist of 375 members, out of which 250 were to be the representatives of the British India and 125 of the Indian States. The members from the British India were to be indirectly elected who were composed of the members of the Lower Houses of the Provincial Legislatures but were to be nominated by the rulers in case of the Indian States. Its life was 5 years unless dissolved earlier by the Governor General.
- 6 out of 11 provinces were given bicameral system of legislature. The Act not only enlarged the size of legislature, it also extended the franchise i.e. the number of voters was increased and special seats were allocated to women in legislature.
- Membership of the provincial assemblies was altered so as to include more elected Indian representatives, who were now able to form majorities and be appointed to form governments.
Establishment of a Federal Court, Federal Railway Authority and Reserve Bank:
- The India Act 1935 also provided for the establishment of a Federal Court to adjudicate inter-states disputes and matters concerning the interpretation of the constitution.
- It was however, not the final court of appeal. In certain cases the appeals could be made to the Privy Council in England.
A federal court was established which began its functioning from October 1, 1937. The chief Justice of the federal court was Sir Maurice Gwyer. It consisted of One Chief Justice and not more than 6 Judges.
Federal Railway Authority: The Government of India Act 1935 vested the control of the railways in federal railway authority , a new 7 member body. This authority was kept free from the control of ministers and councilors. The idea was to assure the British Stakeholders of the railways that their investment was safe
- Reserve Bank of India was established.
Communal and Separate Electorate and Reservations:
- The Act not only retained the separate electorate(of previous act of 1919) but also enlarged its scope. The Anglo-Indians and the Indo-Christians were also given separate electorate.
- Women were granted reservation in 41 seats in provincial legislatures as well as limited reservations in central legislature. But women reservation was subdivided in religious lines.
- The reservation of seats for the Depressed Classes was incorporated into the act,
Supremacy of the British Parliament:
- The supremacy of the British Parliament remained intact under the government Act of India 1935. No Indian legislature whether federal or provincial was authorized to modify or amend the constitution. The British Parliament alone was given the authority to amend it.
Burma Separation from India:
- Another important feature of the Act was that Burma was separated from India with effect from April 1937.
- Aden was also transferred from the administrative control of the Government of India to that of the colonial offices. Thus Aden became a Crown colony.
Abolition of the Indian Council of the Secretary of State:
- The Government of India Act 1935 abolished the Council of the Secretary of State for India,which was created in 1858. The Secretary of State was to have advisers on its place.
- With the introduction of the provincial autonomy the control of the Secretary of State over Transferred Subjects was greatly diminished. His control, however, remained intact over the powers of Governor General and Governors.
Reorganisation of Provinces and Creation of Two New Provinces:
- A partial reorganization of the provinces:
- Sindh was separated from Bombay
- Bihar and Orissa was split into separate provinces of Bihar and Orissa
- Hence, the Act provided for the creation of two new provinces of Sindh and Orissa. The new provinces together with the NWFP formed the Governor provinces making 11 in all.
Analysis of the Act:
- The basic conception of the act of 1935 was that the government of India was the government of the crown, conducted by authorities deriving functions directly from the crown, in so far as the crown did not itself retain executive functions. His conception, familiar in dominion constitutions, was absent in earlier Acts passed for India.
- The experiment of provincial autonomy under the act of 1935, definitely served some useful purposes, thus we can say that the Government of India Act 1935 marks a point of no return in the history of constitutional development in India.
No preamble: the ambiguity of British commitment to dominion status:
- While it had become uncommon for British Acts of Parliament to contain a preamble, the absence of one from the Government of India Act 1935 contrasts sharply with the 1919 Act, which set out the broad philosophy of that Act’s aims in relation to Indian political development.
- The 1919 Act’s preamble quoted, and centered on, the statement of the Secretary of State for India, Edwin Montagu (1917–1922) to the House of Commons on 20 August 1917, which had pledged: “…the gradual development of self-governing institutions, with a view to the progressive realization of responsible government in India as an integral Part of the British Empire.”
- Indian demands were by now centering on British India achieving constitutional parity with the existing Dominions such as Canada and Australia, which would have meant complete autonomy within the British Commonwealth. A significant element in British political circles doubted that Indians were capable of running their country on this basis, and saw Dominion status as something that might, perhaps, be aimed for after a long period of gradual constitutional development.
- This tension between and within Indian and British views resulted in the clumsy compromise of the 1935 Act having no preamble of its own, but keeping in place the 1919 Act’s preamble. This was seen in India as yet more mixed messages from the British, suggesting at best a lukewarm attitude towards satisfying Indian desires.
No “Bill of Rights / Fundamental Rights”:
- In contrast with most modern constitutions, but in common with Commonwealth constitutional legislation of the time, the Act does not include a “bill of rights” or “fundamental rights” within the new system that it aimed to establis as the draft outline constitution in the Nehru Report included such a bill of rights.
- However, in the case of the proposed Federation of India there was a further complication in incorporating such a set of rights, as the new entity would have included nominally sovereign (and generally autocratic) princely states.
- The Act was not only extremely detailed, but it was riddled with ‘safeguards’ designed to enable the British Government to intervene whenever it saw the need in order to maintain British responsibilities and interests.
- To achieve this, in the face of a gradually increasing Indianization of the institutions of the Government of India, the Act concentrated the decision for the use and the actual administration of the safeguards in the hands of the British-appointed Viceroy and provincial governors who were subject to the control of the Secretary of State for India.
Reality of Responsible Government Under the Act – Is the Cup Half-Full or Half-Empty?
- A close reading of the Act reveals that the British Government equipped itself with the legal instruments to take back total control at any time they considered this to be desirable. However, doing so without good reason would totally sink their credibility with groups in India whose support the act was aimed at securing.
- Contrasting view of Lord Lothian, in a talk lasting forty-five minutes, came straight out with his view on the Bill: “If you look at the constitution it looks as if all the powers are vested in the Governor-General and the Governor. But is not every power here vested in the King? Everything is done in the name of the King but does the King ever interfere? Once the power passes into the hands of the legislature, the Governor or the Governor-General is never going to interfere.”
- Under the Act, British citizens resident in the UK and British companies registered in the UK must be treated on the same basis as Indian citizens and Indian registered companies unless UK law denies reciprocal treatment.
- The unfairness of this arrangement is clear when one considers the dominant position of British capital in much of the Indian modern sector and the complete dominance, maintained through unfair commercial practices (Like: Insignificance of Indian capital in Britain and the non-existence of Indian involvement in shipping to or within the UK).
- There are very detailed provisions requiring the Viceroy to intervene if, in his view, any India law or regulation is intended to, or will in fact, discriminate against UK resident British subjects, British registered companies and, particularly, British shipping interests.
British Political Needs vs. Indian Constitutional Needs – the Ongoing Dysfunction:
- From the moment of the Montagu statement of 1917, it was vital that the reform process stay ahead of the curve if the British were to hold the strategic initiative. However, imperialist sentiment, and a lack of realism, in British political circles made this impossible. Thus the grudging conditional concessions of power in the Acts of 1919 and 1935 caused more resentment and signally failed to win the Raj the backing of influential groups in India which it desperately needed.
- There is evidence that Montagu would have backed something of this sort but his cabinet colleagues would not have considered it. Considering the balance of power in the Conservative party at the time, the passing of a Bill more liberal than that which was enacted in 1935 is inconceivable.’
Relationship to a Dominion Constitution:
- In 1947, a relatively few amendments in the Act made it the functioning interim constitutions of India and Pakistan.
Objectives of the British Government:
- The federal part of the Act was designed to meet the aims of the Conservative Party. Over the very long term, the Conservative leadership expected the Act to lead to a nominally dominion status India, conservative in outlook, dominated by an alliance of Hindu princes and right-wing Hindus which would be well disposed to place itself under the guidance and protection of the United Kingdom.
- The Act aimed to:
- Win the support of moderate nationalists since its formal aim was to lead eventually to a Dominion of India which, as defined under the Statute of Westminster 1931 virtually equalled independence;
- Retain British control of the Indian Army, Indian finances, and India’s foreign relations for another generation;
- Win Muslim support by conceding most of Jinnah’s Fourteen Points;
- Ensuring that the Congress could never rule alone or gain enough seats to bring down the government This was done by over-representing the Princes, by giving every possible minority the right to separately vote for candidates belonging to their respective communities (separate electorate), and by making the executive theoretically, but not practically, removable by the legislature.
- By giving Indian politicians a great deal of power at the provincial level, while denying them responsibility at the Centre, it was hoped that Congress, the only national party, would disintegrate into a series of provincial fiefdoms. But, the congress High Command was able to control the provincial ministries and to force their resignation in 1939. The Act showed the strength and cohesion of Congress and probably strengthened it.
- Convince the Princes to join the Federation by giving the Princes conditions for entry never likely to be equaled. It was expected that enough would join to allow the establishment of the Federation.The Federation, as planned in the Act, was not viable and would have rapidly broken down with the British left to pick up the pieces without any viable alternative.
Why Princes did not join Federation:
- It was hoped hat the Princes would see that their best hope for a future would lie in rapidly joining and becoming a united block without which no group could hope, mathematically, to wield power. However, the princes did not join, and thus exercising the veto provided by the Act prevented the Federation from coming into existence.
- Among the reasons for the Princes staying out were the following:
- They did not have the foresight to realize that this was their only chance for a future.
- They were not a cohesive group and probably realized that they would never act as one.
- Each Prince seemed consumed by the desire to gain the best deal for himself were his state to join the Federation: the most money, the most autonomy.
- Congress had begun, and would continue, agitating for democratic reforms within the Princely States. Since the one common concern of the 600 or so Princes was their desire to continue to rule their states without interference, this was indeed a mortal threat. It was on the cards that this would lead eventually to more democratic state regimes and the election of states’ representatives in the Federal Legislature. In all likelihood, these representatives would be largely Congressmen. Had the Federation been established, the election of states’ representatives in the Federal Legislature would amount to a Congress coup from the inside. Thus, contrary to their official position that the British would look favorably on the democratization of the Princely States, their plan required that the States remain autocratic. This reflects a deep contradiction on British views of India and its future.
Indian Reaction to the Proposed Federation:
- So little was offered that all significant groups in British India rejected and denounced the proposed Federation. A major contributing factor was the continuing distrust of British intentions for which there was considerable basis in fact.
- No significant group in India accepted the Federal portion of the Act. After all, there are five aspects of every Government worth the name: (a) The right of external and internal defence and all measures for that purpose; (b) The right to control our external relations; (c) The right to control our currency and exchange; (d) The right to control our fiscal policy; (e) the day-to-day administration of the land.”
- But under the Act, external affairs, defence, currency and exchange were all under Governor General effectively. Reserve Bank Bill just passed has a further reservation in the Constitution that no legislation may be undertaken with a view to substantially alter the provisions of that Act except with the consent of the Governor-General…. there is no real power conferred in the Centre.
- However, the Liberals, and even elements in the Congress were tepidly willing to give it a go. Linlithgow asked Sapru whether he thought there was a satisfactory alternative to the scheme of the 1935 Act. Sapru replied that they should stand fast on the Act and the federal plan embodied in it.
- Birla said that It was not ideal but at this stage it was the only thing.He thought that Congress was moving towards acceptance of Federation. He said that Gandhi was not over-worried by the reservation of defence and external affairs to the centre, but was concentrating on the method of choosing the States’ representatives. Birla wanted the Viceroy to help Gandhi by persuading a number of Princes to move towards democratic election of representatives.
The Working of the Act:
- The British government sent out Lord Linlithgow as the new viceroy with the remit of bringing the Act into effect. Linlithgow was intelligent, extremely hard working, honest, serious and determined to make a success out of the Act. However, he was also unimaginative, stolid, legalistic and found it very difficult to “get on terms” with people outside his immediate circle.
- In 1937, after the holding of provincial elections, Provincial Autonomy commenced. From that point until the declaration of war in 1939, Linlithgow tirelessly tried to get enough of the Princes to accede to launch the Federation. In this he received only the weakest backing from the Home Government and in the end the Princes rejected the Federation en masse.
- In September 1939, Linlithgow simply declared that India was at war with Germany. Though Linlithgow’s behaviour was constitutionally correct it was also offensive to much of Indian opinion that the Viceroy had not consulted the elected representatives of the Indian people before taking such a momentous decision. This led directly to the resignation of the Congress provincial ministries.
- From 1939, Linlithgow concentrated on supporting the war effort.