The Government of India Act, 1935, established a federal form of Government for India. Prior to this Act, the constitutional structure of the Government was unitary wherein the Provincial Governments, derived their powers by devolution from the Central Government. They discharged their functions subject to the authority of their respective Legislatures under the superintendence, direction and control of the Governor-General-in-Council and ultimately of the Secretary of State for India. The only sphere in which the Provincial Governments enjoyed some measure of autonomy was the administration of ‘transferred subjects. The Indian States were autonomous within their own territories and their relations with the Governor-General-in-Council were governed by the rule of paramountcy.
The Government of India Act, 1935, established a federal system of Government. It was a very elaborate and lengthy Act comprising 321 Ss. and ten Schedules. The main features of the Act relating to federal system of Govt. are as under-
1. Establishment of an All India Federation
The Government of Indian Act, 1935 provided for the establishment of an Indian Federation composed of the Governor’s Provinces and the Chief Commissioner’s Provinces in British India and such of the Indian States, as may voluntarily accede to it. The tribal and excluded areas were also to be subject to the jurisdiction of the Federal Government of India, but they were not given a representation on its various organs. The Governor’s provinces and the Chief Commissioner’s Provinces were to join the Federation, compulsorily while the princely States could enter the federation voluntarily if their ruler signed an instrument of. Accession Thus, any State could keep out of federation, if it so desired.
Thus, the Act provided for an All India Federation. The Indian States were under the complete control of Government of India whereas the Provinces had some sort of democratic Government. The entry of the Provinces into the federation was to be automatic while the Indian States were required to execute an instrument of accession to join the Federation. The functions of Crown with regard to the Indian States were to be performed in India by his representative who in fact was the Viceroy himself.
2. Division of Powers under the Indian Federation
The division of powers between the Federal Government and the Federating Units is a characteristic feature of all the federations. In relation to the Provinces there was a three types division of functions and the subjects were divided into Federal, Provincial and Concurrent Lists. The Federal List contained in all 59 items which were exclusively the federal subjects. The more important of these subjects were Defence, Foreign Relations including relations with Indian States, Extradition, Railways, Posts and Telegraphs, Foreign Trade, Shipping, Navigation, Explosives, Arms and Ammunition, Federal Services, etc. The matters which were of all-India interest and needed uniform policy were included in this List.
The Federal sources of revenue mentioned in this List included customs, salt, opium, income-tax, succession duties, stamp and excise duties on certain items, corporation taxes, etc. The subjects enumerated in the Provincial List were within the exclusive jurisdiction of the Provincial Legislatures. This List contained matters of Provincial or local interest, such as education, land revenue, local-self Government, public health, police, prison, forests, irrigation, industries, etc. Finally, the Concurrent List consisted of 54 items on which both Federal Legislature and the Provincial Legislatures were competent to make laws.
3. Establishment of dyarchy system in the Centre
The Government of India Act, 1935 introduced dyarchy at the Centre and a responsible government at the Provinces. Certain Federal subjects were reserved in the hands of the Governor-General to be administered by him with the assistance of three councillors to be appointed by him. In the administration of the other Federal subjects the Governor-General was to be aided and advised by a Council of Ministers whose number was not to exceed ten. Inspite of the composite character of the Ministry it was to be collective. The ministry was to be responsible to the Federal-legislature.
4. The Structure of the Governments
Although many of the provisions of the Act never came into practical operation, yet the proposed form of governments at the centre and in the provinces was as below
(i) Federal Government – The Executive – It was to consist of the Governor-General and a Council of Ministers. The Governor-General had to act on the advice of the Council of Ministers except in matters which were reserved i.e., the external affairs, defence, ecclesiastical affairs, administration of tribal areas and the matters which were in his special responsibility. He could also legislate temporarily by Ordinance or permanently by an Act with respect to the reserved subjects or the subjects in his special responsibility. On the advice of his ministers he could issue an Ordinance on any subject. In the event of constitutional breakdown the Governor-General could assume all or any powers vested in the federal authorities.
The Governor-General had to act in two different capacities for the Governor’s Provinces and the Indian States. With respect to the former he was the Governor-General while for the latter he was the Crown’s Representative. The Crown’s paramountcy over the Indian States was to be exercised not through the Federal Government but directly through the Crown’s Representative.
The Legislature – The federal legislature was to consist of – (a) The King, represented by the Governor-General, (b) the Council of State and (c) the Legislative Assembly. The Council of State was to consist of 260 members, of whom 104 were to be the representatives of the States, 128 were to be directly elected by territorial communal constituencies, 22 seats were assigned to small minorities, women and depressed classes and 6 were to be nominated by the States. The Legislative Assembly was to consist of 375 members of whom 125 were to be the representatives of the Indian States nominated by the Rulers of the States and the remaining were to be sent after indirect election by the Provincial Assemblies. The election was on communal basis and the method was proportional representation with single transferable vote. The two houses were to have equal powers except in financial matters where the Legislative Assembly could exercise more powers.
The Council of State was to be a permanent house with one third of its members retiring at the end of every second year. The normal duration of the Legislative Assembly was to be 5 year, unless dissolved “A most striking feature of the Central Legislature was its relationship with the Governor-General. In fact, the powers of the Governor-General in relation to the Legislature were so overwhelming that the latter had hardly any power which could be claimed as its own……………. the Legislature contemplated under the Constitution Act of 1935 was more a legislature by courtesy than by its powers.” It has been seen above that the Governor-General could himself exercise legislative powers to a large extent and could also prohibit the legislature from exercising its legitimate powers by the exercise of his veto power.
The Federal Court – A Federal Court was set up at Delhi by the Act. “In fact, of all the institutions set up under the Act, it was the Federal Court which proved to be the most successful in operation.”
5. The Provincial Government
The composition of the government in the eleven Governor’s provinces was to be as below –
The Executive – The executive consisted of the Governor and his Council of Ministers. The Governor was given powers on the pattern of Governor-General i.e., some subjects were reserved for the Governor and no advice was sought from the Minister in the exercise of these powers. Some of the subjects were left on the special responsibility of the Governor where he was not bound by the Ministerial advice and lastly there were some subjects on which he acted on the advice of his Ministers. Like the Governor-General he could make an Ordinance or an Act on the subjects of his special responsibility and on the advice of his ministers he could legislate through ordinance of any subject. He could also exercise various legislative and financial powers at his discretion. In the case of constitutional breakdown in the Province, he could, by proclamation assume all powers vested in or exercisable by any Provincial body or authority, except the High Court. “The Governor’s powers as a whole presented a formidable list seldom found in the case of an executive head functioning under a responsible system of government.”
The Legislature – The composition of Legislature varied from province to province. Out of the eleven provinces there were bicameral legislatures in six and unicameral in five provinces. The legislature was called as Legislative Assembly. Where there were two Houses, the Upper House was called as Legislative Council and the Lower as Legislative Assembly. The members of the Assembly were directly elected by the people on the communal basis or through various bodies and associations. Members of the Council were elected by the general constituencies, Assemblies and some of them were nominated by the Governor. The duration of the Assembly was normally 5 year. The Council was a permanent body. One third of its members being renewed at the end of every third year.
The right of vote was restricted on the basis of economic and educational qualifications and only about 14% of the total population enjoyed this right.
6. Abolition of the India Council of Secretary of State
The Government of India Act, 1935 provided for the abolition of the India Council of the Secretary of State and advisors were to be appointed in its place for his consultation and aid, wherever the Secretary of State deemed it necessary.
7. The Home Government lifted the Central over Indian sphere
The Home Government lessened its control over Indian sphere due to the introduction of Provincial autonomy in the provinces and responsible Government at Centre. The Governors and the Governor-General were made strictly responsible to the Secretary of State, in the exercise of their discretionary powers.
8. Substractions from the principles of responsible Govt.
The Government of India Act, 1935, provided vital subtractions from the principles of responsible Government as well as of Self-Government, Firstly, Indian Legislatures were denied of many legislative powers and secondly, the Governors and the Governor-General were empowered to over-ride their ministers and legislatures in certain circumstances.
9. Establishment of a rigid Constitution
The Act of 1935 provided for a rigid Constitution, only British Government was
competent to amend it.
10. Establishment of Provincial Autonomy
In pursuance of the policy declaration of August, 1917, the Government of India Act, 1935 granted provincial autonomy. The control of outside powers was relaxed to considerable extent.
Chief defects of the Act
The chief defects of the Government of India Act, 1935 were as under –
(i) The power to amend the Constitution was not given in Indian hands. Ultimately Indians had no control over the Government of their country.
(ii) People disliked the introduction of dyarchy at the Centre as they already had seen its evil in the Provinces.
(iii) It depended upon the choice of Indian States to join the Federation or not.
(iv) The Indian States were given the privileged position in the Federation so they were serving the British interests everywhere.
(v) Indirect election to Federal Assembly were against the canons of Democracy.
(vi) The ultimate control of the Secretary of State over the All-India Services was detested by the Indian people.
(vii) Defence was consuming the lion’s share of the budget but being a Reserved subject was not controlled by Indians.
(viii) States Legislatures were filled by communal representation which was against the root of Indian nationalism.
(ix) The safeguards, reservations and special powers placed to the Indian Ministers under the constant Vigil and control of the Executive which Indians never liked.
(x) The discretionary powers of Governor reduced the Provincial autonomy to a farce.
(xi) The powers of Provincial Legislature were very much restricted. Upper Chambers were made reactionary bodies.
It was for above reasons that the Government of India Act, 1935, found favour from no quarter. Lord Atlee remarked : “The keynote of the Bill is mistrust.” Indian National Congress condemned it for its conservatism. Indian National Congress held that it did not envisage any transfer of power into Indian hands. A critic observed the Act as “disgusting, poisoning and offensive.”
From all that what is said above it can rightly be concluded in the words of Pylee “The federal system which the Act of 1935 aimed to establish was perhaps the most complex ever known in the history of federalism.”
Q.:- Discuss the federal features of system of Government established in India by Govt. of India Act, 1935.
Q.:- State the provisions of Government of India Act, 1935.
Q.:- What were the chief defects of this Act ?