Legal and Constitutional History Notes1

CHAPTER 1
INTRODUCTION
SYNOPSIS
(1) East India Company and early British Administration
(2) The Regulating Act of 1773
(3) Pitts India Act
(4) The Charter Acts, 1786 to 1833
(5) The Charter Act of 1833
(6) The Act of 1858
(7) The Indian Councils Act, 1892
The East India Company which was created by the Charter of 1600 was essentially a
trading company. The Company established its first settlement at Surat as a result of
Royal Firman from the Mogul Emperor Jehangir. In course of time, it established its
settlements at different places along the coasts of India can broadly be divided into the
following phases:
The early period of the East India Companys rule, the British Government exercising its
control over the East India Company, the various reforms to associate Indian people
with the administration and to establish a centralized Government in India, the
increasing agitation of the Indian Nationalist Movement for Self-Government, the
legislative measures to accommodate the demand for self-Government, the devolution
of powers and introduction of provincial autonomy, attempt to introduce the principle
of federalism and Independence and partition of the country.
In brief, the Constitutional development in the country has been first towards
centralization of administration and then towards decentralization and introduction of
rudiments of responsible Government.
1. East India Company and early British Administration
When the East India Company established its first settlement at Surat in 1613, the
Mogul Emperor had exempted the members and servants of the Company from the
operation of the local law. Therefore, the Company enjoyed limited legislative and
judicial powers over its servants and subsequently over the other inhabitants in the
settlement. But, with the acquisition of territories the character of the Company
changed. When the Company was established it enjoyed certain autonomy and it was
constituted on the democratic principle. But, with the acquisition of territory by the
1 Jhabvala Book on Legal and Constitutional History

Company, the demand for greater governmental and parliamentary control over the
Company increased in Great Britain. The result was the Regulating Act, 1773.

2. The Regulating Act, 1773

With the passing of this Act, a type of direct parliamentary control over the Court of
Directors of the Company was established. But, this control was very weak. The
Directors were required to submit copies of the correspondence between the Company
and the Governor-General-in-Council regarding revenue matters and civil and military
matters. The Act also established the supremacy of the Bengal Presidency over those of
Bombay and Madras. The Bengal Presidency was authorized to deal exclusively with
matters of war and peace. The Act also established a Supreme Court at Calcutta which,
for the first time, enjoyed the power of judicial control over the administration. This was
the first court during the British period to be presided over by trained lawyers. But the
principle of judicial control led to conflict between the judiciary control led to conflict
between the judiciary and the executive. The Act of Settlement of 1781 removed this
judicial control.
The Regulating Act had also empowered the Governor-General-in-Council to make
regulations. This Act and the subsequent Act of 1781 regularized the procedure for the
framing of those regulations. In course of time, the measures proved to be
unsatisfactory. There were a number of reports of several misdeeds of the Companys
Government in India. The liberal opinion in England wanted greater parliamentary
control of the Companys administration. But the attempt of the Liberal Cabinet to
introduce far-reaching changes was defeated by the House of Commons. Nevertheless,
Pitt the younger who formed the next Cabinet was able to introduce certain changes in
the administration of India.
3. Pitts India Act
The most important change brought by Pitts India Act was to curtail the powers of the
Court of Directors of the Company over political affairs. The Act which received Royal
assent in 1784 allowed the Court of Directors manage the commercial affairs of the
Company as they liked. With regard to political affairs of the Company, the Board of
Control was appointed. The Board was presided over by the Chancellor of the Exchequer
and four Privy Councilors and a Secretary were also its members. This Board exercised
the power of superintendence, direction and control of all the affairs in relation of the
civil and military Government of the British Territorial possessions in the East Indies.
Expecting the power of appointment of the officers of the Company, the Court of the

Proprietors lost all its political powers. The Company also professed the policy of nonintervention in the affairs of Indian rulers.
Notwithstanding the professed policy of non-intervention, there was vast territorial
acquisition by the Companys Government in India. This territorial expansion
necessitated greater parliamentary control. Such Parliamentary control was sought to be
introduced by several Acts known as Charter Acts.
4. The Charter Acts, 1786 to 1853
These series of Acts attempted to abolish the monopoly of the East India Company in
trade and to provide legislative machinery so that laws could be made for India as
whole.
5. The Charter Act of 1833
This Act was an Act having a very comprehensive and far- reaching effect. This Act
was a result of certain changed circumstances both in England and India. In England,
the Parliamentary reforms were effected in 1830 and as a result of that the House of
Commons was reformed. The reformed House of Commons was embodied with ideals of
Liberalism. There was also a considerable demand for freedom of trade with India and
unrestricted immigration of Europeans into India. Liberal leaders like Macaulay and
James Mill had also felt the necessity of the reform of Indian Laws and improvement in
state of education prevailing in India. Further, it was felt that it was preposterous to
leave the political government of an immense Empire in the hands of Joint Stock
Company without any association of native population. In India, there was a territorial
expansion of the East India Company and such expansion had created certain
administrative difficulties.
In view of the above factors, the Charter Act of 1833 was passed. The effect of the Act
can be summed up as follows:
(a) Monopoly of the East India Company to trade with India was brought to an end.
(b) All restrictions to European immigration into India was removed.
(c) The power of Governor-General-in-Council to legislate was enhanced. The Act
empowered the Governor-General-in-Council to make laws and regulations for all the
persons and for all Courts in British India. There was no need to register such laws
enacted b y the Governor-General with the Supreme Court.
(d) A law commission was appointed for codification of the laws. The principle of
codification was, as Lord Macaulay put it, uniformity wherever possible, diversity
wherever necessary and certainty in all cases. To achieve this process, an English
Barrister was added to the Council of the Governor-General. Macaulay was the first law
member of the Council and he was also the President of the Law Commission which was
appointed under the Act.

(e) The Act also provided that the natives irrespective of race or religion, place of birth were
to be eligible for public appointments. Provisions were also made for their education.
(f) The Act declared that the British Parliament had full complete and constantly existing
right and power to control, supersede or prevent all proceedings and Acts of the of
Governor-General-in-Council.
(g) The Act also provided measures for the abolition of slavery throughout India.
The Charter Act, 1833 almost paved the way for the resumption of Government of India
by the Crown of England.
6. The Act of 1858
The Indian revolution of 1857 expedited certain constitutional developments in India.
The main effect of the Revolution was the passing of the Act for the good Government of
India in 1858. The Company abolished the Court of Directors and the Board of Control.
It transferred the Government territories and revenues of India from the Company to
the Crown. The Queen, by her proclamation of 1858, assumed the Government of India.
The result was that the Direct rule of the British Crown was established in India.
The contents of the Proclamation of 1858 can be summarized as follows:
(a) The Crown took upon itself the Government of India which was being run by the East
India Company.
(b) The first Viceroy and Governor-General was appointed to administer the Government in
the name and on behalf of the Crown.
(c) The Proclamation also further assured that all treaties and engagements made with the
native Princes of India by or under the authority of East India Company, will be
accepted and scrupulously maintained by the Crown.
(d) It was made clear that the Crown had no desire to extend its territorial possession and
while it would not permit any aggression upon its dominion, it would sanction no
encroachment of the territories of others.
(e) The Proclamation further stated that the Crown was bound to the natives of Indian
territories by the same obligation of the duties which bound it to all its other subjects.
By the Act of 1858, all powers-legislative, administrative and financial came to be
centralized in the Secretary of State for India in Council. The Secretary of State was
charged with the superintendence, direction and control of all Acts, operations and
concerns which is anywise relate to Government or revenue of India. He was assisted by
a Council composed of men who has expert knowledge and experience of India. It was
composed of 15 members of whom 8 were appointed by the Crown and 7 were elected in
the first instance by the Court of Directors and subsequently the Council itself.
7. The Indian Councils Acts, 1861

The process of centralization introduced by the Regulating Act culminated in the

Act of 1833, By the Charter Act, 1833 supreme authority of the of Governor-General-inCouncil over other Presidencies was fully established. But this centralization, naturally,
presented certain difficulties in administration of a vast country like India. To remedy
the difficulties and the defects arising out of centralization, the Indian Councils Act,
1861 was passed. It can be said that with the passing of the Act, the process of
decentralization began.
As a result of this Act, the Councils of Bombay and Madras were restored their
legislative powers. New Councils, were allowed to be established in other Provinces, but,
at the same time, previous sanction of the Governor-General was necessary for
Legislation by Provincial Council in certain matters. Further, the laws passed by the
Provincial Councils also required the assent of the Governor-General for their validity.

8. The Indian Councils Act, 1892

Though the Indian Revolution of 1857 was curbed and some reforms were introduced;
yet, the political situation in the country became highly surcharged with the spirit of
nationalism. The Chief factors which gave rise in the nationalist movement in the
Eighties of the 19th Century can be summed up as follows:
1. The liberal political ideas of the West had inspired the educated elite in the country and
therefore, their craving for political independence was strengthened;
2. There was a general movement of religious revival which enhanced the faith of the
Indian people in the glory of ancient India. The result was that the Indians began to
consider themselves as people not inferior to the British;
3. The economic discontent had assumed vast proportions as a result of the destruction of
indigenous handicraft industries in the country;
4. The Indian press and vernacular literature had played an effective role in rousing the
national conscience of the Indian people.
5. The development of communication had strengthened the patriotic bonds of the people;
6. The unimaginative administration of certain Governor-General like Lord Lytton
increased the feeling of racial bitterness. Besides, the arrogance and the insolence of the
rulers resulted in complete dissatisfaction towards the Government.
In the meanwhile, the Indian National Congress established in 1855 organized the
national political opinion in the country. It gave a clear demand for a greater share in
the Government and administration in its very first session, which also expressed grave
dissatisfaction at the system of Government as existed then. The Viceroy Lord Dufferin
could feel the pulse of the country and appointed a Committee of the Councils and also
to introduce the elective principle in the formation of the Councils. Though the
Secretary of the State did not agree with all the recommendations of the Viceroy; yet, a

bill was introduced in the Parliament which was passed two years later. This Act is
known as Indian Councils Act of 1892. The Act was intended to widen the basis and
expand the functions of the Government of India. It was also intended to give greater
opportunities to the non-official Indian elements to take part in the work of Government
of India.
The Act increased the number of additional members. The Governor-Generals
Council was to have not less than 10 and not more than 16 additional members. The
Provincial Councils of Bombay and Madras were to have not less than 8 and not more
than 20 members. Similar increase was made in the strength of Councils of Bengal,
North West Provinces and Oudh. The Act also enlarged the functions of the Councils.
The Councils were also allowed to discuss the annual financial settlement. The members
of the Councils were also permitted to ask questions with certain limited spheres. The
Council would have some members elected indirectly through local Government bodies,
universities and professional and commercial associations.

CHAPTER II
MINTO-MORLEY REFORMS

The Indian Councils Act of 1892 did not satisfy the Indian public opinion. An intense
nationalist movement developed in the country. The new movement developed along

anarchist and terrorist lines. This movement drew its inspiration from leaders like Tilak
and Aurobindo Ghosh. On the other hand, under the guidance of Bipinchandra Pal,
Lajpatrai and Gopal Krishna Gokhale the moderates also began to press for greater
political reforms. Gokhale, therefore, a Royal Commission was appointed to examine the
Indian political situation and to suggest remedies for the ills that beset the Indian
political scene. The Commission had limited field of reference and the recommendations
of the Commission were given effect to by an Act in May, 1909. The measures
introduced by the Act are popularly known as the Minto- Morley Reforms. The main
feature of the Act was to raise the number of members in the Legislative Councils and to
adopt the principle of indirect election to the Council. The scope and the function of this
Council were also enlarged. The Reforms, in brief attempted to graft the principle of
constitutionalism upon the Autocracy of British Rule as it existed.
The most outstanding characteristic of this Act of 1909 which brought in the so-called
Minto-Morley Reforms was that the central legislative body, the Council was made more
representative and effective.
The Council was modified in the following aspects:
(1) Under the Act the number of the members of the Council were doubled; and
(2) The proportion of the non- official members as compared to the official was increased;
and
(3) For the first time, in the history of British administration in India, the principle of
indirect election was accepted.
The main characteristic of the Act, 1909 was that it recognized the principle of
representation. The Act accepted the position that the election by the wishes of the
people is the ultimate end to be secured. It also accepted, unfortunately, that in the
prevailing circumstances representation of classes and interests was the only practical
method of embodying the principle of representation in the constitution of the
Legislative Councils. This, unfortunately, led to the beginning of the communal
electorate in India. Under this Act, there was a representation to Muslims, Landlords,
Chamber of Commerce, etc. It is unfortunate that an Act, which wanted to bring in the
principles of representation of the people defeated them on irrational basis.
CHANGES IN THE FUNCTIONS OF THE COUNCILS
The Act of 1861 had strictly limited the functions of the Councils to the field of
legislation. The Act of 1892 gave members the power to discuss the budget but not to
move resolutions about it or to divide the Council. The Act of 1909 enlarged the scope of
the functions of the Councils in three ways:
1. (a) to discuss the budget at length before it was finally settled;

(b) to propose resolutions upon it

(c ) to decide upon those resolutions
2. The extended powers of the Councils went even beyond the discussions on the budget
and embraced almost all the matters of the public importance through resolutions and
divisions taken. These resolutions, however, were not binding on the executive
Government, but only had the effect of recommendations.
3. The right to ask questions by the members was enlarged and supplementaries were also
allowed.
On the whole, the Minto-Morley Reforms were a great improvement upon the Act of
1892. Nevertheless, they failed to satisfy the aspirations of the people. First, the Councils
were not truly the representative of the people as a whole. Narrow franchise and indirect
elections failed to instill In the members a sense of responsibility to the people.
Secondly, the Councils had no real power in the field of legislation and finance. They
were only debating bodies which aired certain criticisms. Thirdly, neither the sub
ordination nor that of the latter to the Secretary of the State was relaxed. Finally, the Act
had no answer to the demand for responsible Government. In fact, Lord Morley was
frank in this respect by openly declaring that he would have nothing to do with the
Reforms if they were constructed as a step towards the establishment of a parliamentary
system of government in India.
It was, on the other hand to create a constitution about which conservative opinion
would crystallize and offer sub substantial opposition to any further change. Both
Morley and Minto desired to associate only such Indians with the administration of the
country who would oppose any further shifting of the balance of power and any attempt
to democratize Indian Institutions.
The position was not in any substantial way better in the case of the Provincial Councils,
as the elected element was not in an effective majority anywhere and also because the
final authority in almost all cases rested with the Government of India. The MintoMorley Reforms thus failed to satisfy even the most moderate sections of political
opinion in India.
What then was purpose of the Reforms? They were an attempt to graft the principle of
constitutionalism upon the existing autocracy of the British Rule. They were at the best
the outcome of the old conception which might, as it saw fit for purposes of
enlightenment, consult the wishes of its subjects. This was incapable of satisfying the
Indian people and naturally, they were disillusioned.
Agitation against the foreign rule was steadily mounting and it had by now assumed
many forms and unprecedented proportions. The Government bent upon crushing the
mounting unrest followed a policy of ruthless repression accompanied by minor

measures of reforms. Bengal was the spear-head of the agitation where on the account of
the repressive policy of the Government, the movement went underground and it took a
violent form indulging in arson, murder and organized dacoity. Many patriots sincerely
believed that by indulging in this type of activity the British would be compelled to quit.
They were, however, unaware, of the fact that the country as a whole was not prepared
to accept their way of thinking. In fact, in many parts of the country the national
organizations of a political nature were withering away for a lack of real public support
or inspired leadership. Tilak was already languishing in the prison in far away Mandalay
and Arobindo Ghosh had gone into voluntary rigorous imprisonment. These were
serious blows to the revolutionaries. As a result, the extremists had lost the great
leadership that they enjoyed until then. The moderates, on the contrary, were busily
engaged in working the new reforms inaugurated under the Minto-Morley scheme. The
Indian National Congress, which was still under the control of the moderates, was
satisfied with the passing of its annual resolutions making frequent appeals to the
Government to relax its repressive measures and give more opportunities to Indians to
participate in the administration. The Muslim league to followed a policy which was very
much similar to that of the Congress. This might have been the reason why the two
organizations came together and formulated a joint scheme of political and
constitutional reforms at Lucknow in 1916. In any case the British became fully aware
that the Indians irrespective of their political persuations were thoroughly dissatisfied
with the existing conditions.

CHAPTER III
GOVERNMENT OF INDIA ACT, 1919
SYNOPSIS
(1) Circumstances which lead to the enactment of the Government of India Act, 1919
(2) Salient features of the Government of India Act, 1919
(3) Devolution of powers
(a) Legislative powers
(b) Financial powers
(c) Administrative powers
(4) Provincial Governments
(a) Provincial Executive
- Reserved subjects
- Transferred subjects
(b) The Legislative
- Composition of the Provincial Legislative Councils
- Franchise
- Legislative function
- Powers regarding finance
- Other Parliamentary functions
(5) The Government of India
(a) The Legislature: The Council of State and Legislative Assembly
(b) Powers if Central Legislature
- Legislative powers
- Financial powers
(6) Government of India Act, 1919 in operation
(7) Diarchy- Causes and its failure

1. Circumstances which lead to the enactment of the Act

The Act of 1909 did not satisfy Indian aspiration for self-Government. Let alone the
extremists, even the moderates were disappointed. It was seen by experience that the
official block in the legislature always voted solidly behind the Government without
considering the merits of the measures sponsored by the Government.
Besides, the separate representation for the Muslims was also resented. A resolution of
discontinuance of such representation was moved in the Imperial Legislature in January
1911.
The Mohammadans were also perturbed by the war between Italy and Turkey and the
Balkan wars. These wars had the effect of weakening Muslim powers. To add to these,
the carving out of the sphere of influence in Persia by Anglo-Russian Treaty of 1907

added to the dissatisfaction. The Muslims were also enraged by the undoing of the
partition of Bengal.
Indians, in general, were intensely moved by the humble status accorded to the Indians
in other parts of the Empire like the colonies in South Africa.
The Irish movement for Independence and the revolt against Great Britain had a great
inspiring effect on the Indians. Mrs. Annie Besant started a Home Rule League
demanding self-Government for India. In this movement, Tilak and Mrs. Besant cooperated. The reaction of the Government, particularly, after the declaration of the First
Word War was to pass the Defense of India Act, 1915. This Act provided for the trial of
revolutionary offenders by a strong bench of judges and there was no appeal against the
decision of the bench. It also provided for the detention of the suspects. The Press Act
was also freely used. Consequently, Mrs. Besant and her associates were restrained in
their attempts.
The declaration of war by Britain brought about another situation. India was
automatically involved in the war by the Royal Declaration. The Government of India,
which had adopted a doctrine in 1913 that the army in India would only be used for
defense of India and that such army would not be dispatched to meet the needs of the
British Government outside the Indian sphere, departed from the doctrine and
dispatched Indian forces to various places in the Middle East and Africa. It was, no
doubt, true that the majority of Indians supported the British cause and whole-heartedly
gave material help. This, naturally, aroused Indian aspirations.
Several theoretical schemes were prepared by statesmen to achieve the purpose of
associating Indians with political power. A scheme prepared by some members of the
Viceroys Legislative Council was adopted by the Indian National Congress and the
Muslim League in 1916. The scheme provided for the following:
(a) Direct elections to the Provincial Councils.
(b) The elected members must have a four-fifth majority in the Central Legislature.
(c) The resolutions of the Provincial Councils must be binding on the Governor
(d) The Executive Council of the Governor-General to contain at least half the number of
members elected by the members of the Legislature.
As a reaction to various measures, the British Government committed itself to a policy.
This policy was declared in the House of Commons on August 20, 1917, by the Secretary
of the State, Montague. The policy was as follows:
The policy of his Majestys Government, with which the Government of India is in
complete accord, is that of the increasing association Indians in every branch of the
administration and 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.
It was also made clear that the ideal could be attained only in successive stages to be
controlled by the Government, and that advance must be conditioned by the
progress in co-operation received and the confidence inspired. Montague visited
India soon after this announcement and the Report bearing the name of MontagueChlemsford Report was prepared. The Government of India Act, 1919 was based on
this report.

2. Salient features of the Government of India Act, 1919.

The most important change brought about by the Act was a kind of decentralization of
power and introduction of an element of provincial autonomy. The process of
centralization which began with the Regulating Act of 1773 came to a culmination in
1909. The reverse process began with the Government of India Act, 1919. The salient
features of the Act of 1919 can be summed up as follows.
(1) The Provincial Government was to be reorganized with the introduction of an elective
element in the Governors Executive Council. This is popularly known as system of
Dyarchy
(2) In the field of local Government there was to be complete popular control.
(3) The Indian Legislative Council was to be enlarged and popular representation and
influence was to be enhanced.
(4) There was to be consequent relaxation of control of British Parliament and the Secretary
of State over the Government of India and Provincial Governments.
3. Devolution of Powers
(a)Legislative Powers
Devoution of legislative powers to the provinces was given effect to by the following
measures:
-

Rules were provided for classifying subjects as central and provincial.

The Provincial Council could legislate for the peace and good government of the
territories in the provinces.
The Provincial Councils had the right to repeal or alter any law made for the provinces
before or after the Act of 1919, by any authority in British India.
But this power of legislation could only be exercised in certain matters with the previous
sanction of the Governor-General.
The matters which required such sanction were the following:

Imposing new taxation unless the taxation fell within the specified heads;

Any law affecting the public debt or custom duties or any other tax or duty imposed by
the Central Legislature;
Any law affecting the military, navy or air-force;
Any law affecting the relations of the Government with the foreign Princes or States;
Any law regulating any Central, State or Provincial subjects be declared to be subject of
Central Legislation;
Any law affecting any power vested in the Governor-General-in-Council;
Altering any law made before the commencement of the Act which was declared or ruled
to unalterable without prior sanction or any later Central Legislation forbidding
Alteration.
The Governor was empowered to assent to bill, refuse to assent or return it for
reconsideration with any suggested amendments or to reserve his assent.
The Governor was required to reserve bills containing provisions not previously
sanctioned by the Governor-General, affecting religion, universities, land revenue or any
matter which Governor was specially charged by his instrument or instructions or
central matters or the interest of another province. He could also reserve bills provided
for the construction of light railways or tramways.
Such reserved bill could either be returned to the Council or might be assented to. If the
assent of the Governor-General was not given within six months, the bill could have
been deemed to be dropped.
An Act assented to by the Governor required the assent of the Governor-General to be
be valid, that might be withheld or the Act might be reserved by the Governor-General
when it could take effect only if approved by the Crown in Council.
Any Provincial Act might be disallowed by the Crown in Council. The Governor was also
empowered to prevent further proceedings on any bill, clause or amendment if he
deemed that the safety or tranquility of the province or any part thereof or of another
province affected. Further, the Provincial Council could not make any law affecting any
Act of Parliament.
(b)
Financial Powers
The provinces were granted the following sources of revenue:
- Balances to their credit at the time of the Act taking effect;
- Receipts from provincial subjects;
- A share in the growth of revenue from income-tax collected in the province so far as the
increase was due to an increase in the amount of the income assessed.
- Recoveries of the loans and advances made by the local government and of interest
there on;
- Payments made by the Indian Government or any province for the services rendered or
otherwise;
- Proceeds of taxes imposed by the province;
- Proceeds of loans; and
- Any other source assigned by the Indian Government

Provision was also made for the annual contributions from the provinces to the Centre.
All Government revenue was to be paid into the public account; of which, the GovernorGeneral-in-Council was the custodian. The Central Government was also authorized to
make rules regarding the mode of dealing with the account. It would also limit the
extent to which any province might draw on its balances. Loans could be raised only
with the permission of the Central Government, if it was to be raised outside India.
(c ) Administrative Powers
With the devolution of the Financial and Legislative powers, it was natural that there
should have also been devolution of administrative powers. This devolution was brought
about by a mass of regulations made under the Act of 1919.
4. Provincial Governments
As we have observed before, the important idea behind the Act of 1919 was to introduce
an element of provincial autonomy and decentralization of powers. It was also
considered that an element of responsible Government should also be introduced in the
provinces. Therefore, certain significant changes were brought about in the structure of
the Provincial Governments.
(a)Provincial Executive
The Provincial Executive in the Governors provinces was split into two parts, Reserved
and Transferred subjects. The Reserved subjects were to be dealt with by the Governorin-Council and the Transferred subjects were to be administered by the Governor acting
with the ministers.
-

Reserved Subjects
The administration of the Reserved subjects was entrusted to the Governor which he
had to administer with his council. The number of Executive Councilors was not to
exceed four. At least one of the members of the Council at the time of his appointment
was to be an employee of the Crown in India, and half the numbers of the members in
each of the Council were to be Indians. All the members of the Executive Council were
appointed by the Crown on the advice of the Secretary of State for a period of 5 years
and they held the office at its pleasure. They were to receive a fixed pay, their salaries
were not subject to vote of the Provincial Legislatures. The Governor and the Council
were jointly responsible to the Government of India and the secretary of State and
ultimately to the Parliament. The Governor presided over the meeting of the Council
where the decision was arrived at in case of difference of opinion by a majority vote. In
case of a tie, the Governor was empowered to override the decision of majority

whenever, in his opinion, the decision of majority was fraught with grave danger to the
safety, peace and tranquility and interests of the provinces.
-

Transferred Subjects
The Transferred subjects were to be administered by Ministers who were nominated by
the Governor from among the elected members of the Provincial Council. They were to
hold office during the pleasure of the Governor. Their salary depended on the vote of the
Legislature. No Minister could hold the office for more than six months unless he was or
became elected member of the legislature. In the matter of administration of
Transferred subjects, the Governor was to be guided by the advice of his ministers
unless he saw sufficient cause to dissent from their opinion. In which case he might
require action to be taken otherwise than in accordance with the advice.
In the instrument of instructions given to the Governor certain special responsibilities
were entrusted to him. In those matters he could over ride the Ministers in the discharge
of these responsibilities.

Special responsibilities of the Governor

He was required
To see that necessary measures were taken for the maintenance of the safety and
tranquility in all parts of the province and for preventing occasions of religious or racial
conflict;
To see that all the orders issue by the Secretary of State or the Governor-General-inCouncil to whatever matters they were related were complied with;
To see that due provision be made for the advancement and social welfare of those
classes of people, who, whether on account of the smallness of number or their lack of
educational or material advantages or from any other causes, could not as yet fully rely
for their welfare upon joint political action;
To see that no order of his Government and no Act of his Legislative Council should be
so framed that any of the diverse interests of, or arising from, race, religion, education,
social condition, wealth or any other circumstances might receive unfair advantage or
might unfairly be deprived of privileges or advantages which they had hitherto enjoyed
or be excluded from the enjoyment of benefits which might be hereafter conferred on
the people at large;
To safeguard all members of the Public Service employed in the Provinces in the
legitimate exercise of their functions and in the enjoyment of all recognized rights and
privileges; and
To take care that no monopoly or special privilege, which was against the common
interest, should be established and that no unfair discrimination should be made in the
matters affecting commercial or industrial interests.

Thus, provincial executive had two components: the members of the Council
not responsible
to the legislature and the Ministers who were expected to be
responsible to the legislature. The Governor was the link between these two
components. This system is popularly known as Dyarchy.
(b)

The Provincial Legislature

The Provincial Legislative Councils were largely increased and their consideration was
also reformed so that some principle of responsible Government could be introduced.
-

Composition of the Provincial Legislative Councils

The Provincial Legislative Councils consisted of official members and elected members.
The number of official members was not to exceed 20% while those elected must make
70% at least. The strength of the Legislative Councils varied from province to province.
The major provinces like Madras, Bombay, Bengal and United Provinces had more than
100 members. While Central Provinces had 70 and Assam 50. The elected members
were elected from the following constituencies:
General Constituencies
Communal Constituencies, giving representation to Muslims, Europeans, Anglo-Indians
and Indian Christians where their numbers rendered such action proper;
Special Constituencies for universities
Constituencies for Commerce and industry including mining and planting.
Besides, in the Punjab, the Sikhs also had special representation.

Franchise

Women were excluded from the Voters list until otherwise decided. The minimum age
to be voter was 21. Besides, there were certain other special qualifications prescribed.
They were as follows:
Residence in the Constituency for a minimum period of time;
Ownership or occupation of a house which had a minimum rental value;
Payment of minimum land revenue, municipal tax or income tax, or some other local
rates or taxes; and
All officers commissioned or non-commissioned of the Indian Army, retired or
pensioned were entitled to vote.

There were also disqualifications like insanity, insolvency or conviction for crime,
etc. the candidate to the Provincial Council must have attained the age of 25 years
atleast.
The duration of Council was fixed at 3 years, subject to the power of the Governor to
dissolve it at any time and to extend it for one year in special circumstances. If the

Council was dissolved by the Governor, the new Council had to be summoned within six
months unless the Secretary of State permitted it to be extended to 9 months. The
Governor was authorized to summon or prorogue the Council and under the new Act,
the Governor would not preside over the Council but the President was appointed by the
Governor; but, thereafter, he was elected by the Council. The President could be
removed by the Council with the concurrence of the Governor.
-

Legislative Functions
The legislative powers and the functions of the Provincial Council have already been
discussed while discussing the devolution of powers.
It may be noted that these powers were subject to several restrictions. The distribution
of legislative powers was not modeled on federal scheme. Notwithstanding the use of the
word provincial autonomy the provincial legislature was a subordinate legislature.

Powers regarding Finance

The source of revenue of the provinces has been already referred to. Each year a
statement of estimated revenue and expenditure was to be submitted to the Council and
the Governments proposed expenditure was to be submitted in the form of demands for
grants. The Council might assent, or reduce the amount asked for. It could not suggest
expenditure not recommended by the Government. However, the refusal by the Council
could be disregarded by the Governor. The Council could not discuss the following
categories of expenditure:
Contributions payable to the Central Government;
Interest and sinking fund on loans;
Salaries and pensions of the persons appointed by or with the approval of the Crown or
by the Secretary of State in Council; and
Salaries of the Judges of the High Court and Advocate General. The Governor was given
the power to decide whether the expenditures fell within these categories.
Other Parliamentary Functions
The members of the Council had the right to ask questions and supplementaries on
various subjects. They could also move resolutions to give expression to popular
grievance. For discussing a matter of urgent public interest, they could also move for
adjournment. It may be noted that the powers of the Council were subject to the
following restrictions:
The Governor could refuse or assent to a bill passed by the Council. He could also return
it for consideration or reserve it for consideration of the Governor-General.
An Act passed by the Council even after the Governors assent could be disallowed by
the Governor-General-in-Council or the Crown in Council.

Even if an item of expenditure was refused by the Council, the Governor could restore it
by certifying the demand as essential to the discharge of his responsibility for the
subject.
In conclusion it can be stated that the Principle of responsible Government therotically
accepted was not brought into practice by this Act.

5. The Government of India

Under the Government of India Act, 1919, the Government of India did not change in
any radical way. The Government of India was controlled by the British Parliament
through the Secretary of State. The only change brought by this Act was that the former
restriction as to the strength of the Executive Council was removed. Formerly, there
could only be 7 members in the Executive Council six being ordinary members and one
extra ordinary. Under the present Act, greater freedom was given regarding the strength
of the Council and there could be three Indians in the Council.
(a)The Legislature
Under the present Act, the Central Legislature would comprise if two Chambers: The
Council of States and the Legislative Assembly.

The Council of States

The Council of States was composed of 19 official and six non official nominated
members and thirty four elected members as follows: general 20, Muslims 10, Sikh 1
and European 3. The total strength of the Council of States was 59. The duration of the
Council was fixed at 5 years. The franchise was fixed at a high property qualification.
The main purpose of such high property qualification was to provide representation to
the aristocracy. The President of the Council was appointed by the Governor-General
and nominated as a member of Council. The idea was to select an experienced British
Parliamentarian to be the President of Council of States.
The Legislative Assembly
The Legislative Assembly was composed of members of whom not less than fivesevenths were elected while all the rest 1/3 were non officials. In the first assembly there
were 143 members as follows: officials 25, non officials nominated 15 and elected 103.

Of the elected members, 51 were returned from general constituencies, 30 from

constituencies, 2 represented Sikhs, 7 represented land owners, 4 represented Indian
commerce and 9 Europeans.

The distribution of seats was according the table given below:

Gen
eral

Elected Members
Mus Si Lan Europ
lim kh d
eans
Ow
ners

India
n
Com
merce

10
8

3
6

1
1

1
1

Tota
l
1
7
1
6
1
6
1
6

Beng
al
Bom
bay
Mad
ras
Unite
d
Provi
nces

Nominated
Members
Offic Non To
ials
tal
Offic
ials

Gra
nd
Tot
al

22

22

2
2

2
1

4
3

20
19

3
3
8

1
1
3

1 Punja
2 b
1
Assa
4 m
1
4 Burm 1
a
1 Bihar
2 &
1
Orris
a
1
Berar
5 Cent
ral
Provi
nces
1
Ajme
r
Delhi
Govt.
of
India 12

1
2

1
1

14

1
1

5
5

2
2

14
2

1
1

1
1

12

12

+In the case of the Assembly, also the franchise was high but of a more generous type,
women were also entitled to vote provided they had requisite qualifications. No official
was permitted to contest the election to the legislature and any non-official ceased to be
a member of an appointment to office. An elected member of either Chamber ceased to
be so on election to another Chamber If any person were elected to both, he was to
choose his seat in one of the Chambers.
The duration of the Assembly was fixed at 3 years. The President was chosen for 4 years
by the Governor-General the office thereafter being filled by election with the approval
of the Governor-General.
In case of disagreement between the two Chambers regarding a bill, the GovernorGenera; might at his discretion summon a joint-session.
(b) Powers of the Central Legislature:
(i)

Legislative Powers

Generally, the Central Legislature could legislate on subjects which were classified as
central. The Governor-Generals assent was necessary for a bill to be an Act. The
Governor-General also enjoyed the following powers:
-

(ii)

He could prevent proceedings of any bill or amendment by certifying that it affected the
safety pt tranquility of British India or any part thereof.
Any bill dealing with Provincial subjects or repealing or amending any Provincial Act or
repealing or amending any Act or ordinance of the Governor-General required the prior
sanction of the Governor-General.
The Governor-General might recommend to the Chambers to pass legislation in the
form suggested by him. If the Chambers failed to do so, he could certify that the passage
of the bill was essential for the safety, tranquility or interest of British India. Then the
bill could become law forwith, if already accepted by the House which had not yet
considered it. Failing this, it could become law on his signature. Such an Act was to be
laid before the Houses of Parliament before the assent of the Crown was given. But,
however, in state of emergency, It could become immediately effective. Both the Houses
enjoyed co-ordinate powers.
Financial Powers
It was required by the Act that the estimated annual revenue and expenditure should be
laid before the legislature. All the initiative of appropriation was to be made by the
Governor-General. However, the following matters were excluded both from the vote of
the Assembly and also from direction of the House without the sanction of the
Governor-General:

Interest and sinking fund and charges on loans;

Expenditures, the amount of which was prescribed by law;
Salaries and pensions of persons appointed by the King or the Secretary of State in
Council;
Salaries of chief commissioners and judicial commissioners, and;
Expenditure classified by the Governor-General-in Council as ecclesiastical, political
and defence.
If the demand of the Governor-General-in-Council was refused by the
Asembly, he could declare that any demand was essential to the discharge of his
responsibilities and, thus, authorize such expenditure. He could further authorize any
expenditure necessary in his view for the safety or tranquility of British India or any
thereof.

(iii)

Other Functions

As in the case of Provincial Council, the Central Legislature could also raise a general
discussion by proposing resolutions, it could ask questions and it could bring a motion
of adjournment to discuss any matter of urgency.
6 The Government of India Act, 1919 in operation.
It needs hardly to be observed that the Government of India Act, 1919, did not satisfy
the national aspirations. Besides this, the atmosphere under which the Act came into
operation was highly unfavorable. The various circumstances that created such
atmosphere could be summed up as follows:
(a) The Rowlatt Act imposing control on the press which was introduced in the legislature
invoked protest.
(b) In March and April, 1919, there were widespread disturbances such as a protest against
the unsatisfactory economic conditions at the end of First World War. The massacre of
hundreds of people in the episode of Jallianwala Bagh and callous negligence to enquire
into the episode case a dark shadow over the inception of the reforms, the racial feelings
brought out were more bitter that at any time since war of independence of 1857.
(c) The attitude of the British Government towards Turkey. As seen in the Treaty of Sevres,
was deeply resented by the Muslims.
Montagues resignation from the British Cabinet gave an impression in India that its
friend had been forced out of office by intransigent conservatism.
The Congress Party boycotted the elections held the elections held in October 1920.
Secondly, the Ministers chosen in the provinces had no common grounds. They had to
be selected from a variety of political and communal groups. Therefore, collective
responsibility was impossible. Besides these, the artificial system of Dyarchy proved to
be a thorough failure, the causes of which will be discussed later.
7. Dyarchy- Causes of its failure
The causes of the failure of Dyarchy were ably analyzed in the report of the Committee
under Sir A. Muddiman. The Committee consisted of 12 member including Sir T.B
Sapru, Sir Shivaswami Aiyer and M.A. Jinnah. The majority of the Committee held their
function to be restricted to the making of suggestion in the better working of Dyarchy,
while the minority included Sir Sapru and held that Dyarchy was unworkable and
possessed inherent Demerist. Nevertheless, there was a unanimity of point that the
system of Dyarchy had several defects. Some of the defects are enumerated below:
(a) There was no clear-cut demarcation between the Reserved and the Transferred Subjects.
Therefore, there were frequent interferences between the two Houses of the

Government. In case of such Conflicts, the Governor intervening as an arbitrator

generally sided with his Council in charge of the Reserved Subjects.
(b) In normal course, there should have been joint deliberation between the Ministers and
the Executive Council for the smooth working of the Government as a whole. But,
unfortunately, the Governors failed to take the initiative in promoting joint deliberations
on matters of policy and administration. Though the majority of the Committee thought
that this defect could be removed, the minority vehemently maintained that it was an
inherent defect in a Government which was divided into two halves.
(c) As observed before, the non-co-operation if a majority party like the Indian National
Congress resulted in Ministers in the Provinces being selected from various splinter
groups. Therefore, joint responsibility could not be secured. The Ministers were mostly
chosen on individual basis. As there was no joint responsibility, there was a race among
the Ministers to carry the favor of the Governor. In such an atmosphere, neither the
concept of joint responsibility nor that of a responsible Government could thrive.
(d) Under the Government of India Act 1919, the Governor occupied a very powerful
position. He appointed Ministers at his discretion. He did not promote joint
deliberations. He had vast discretion which was absolute. Consequently, the concept of
Ministerial responsibility could not be promoted even in the field of Transferred
Subjects. Besides, there was always the supervision, control and interference of the
Governor-General and the Secretary of the State. Therefore, the concept of Ministerial
responsibility could hardly thrive.
(e) In the working of the Government, the position of the Financial Department, which was
in the reserved category was in the reserved category was made very strong. Any
financial scheme even in the transferred field required the approval of the Financial
Department. The Financial Department tried to control the policy of the Ministers by
making use of this power. This, further, made the position of Ministers inferior in the
Government.
(f) The members of the Indian Civil Service which was the top layer of the services was
recruited by the Secretary of State and were responsible to him. The Ministers had no
control over the permanent services to implement their policies. The permanent service
was not loyal to the Ministers and there were incidents where certain members of the
Indian Civil Service were defiant and insubordinate.
(g) In the legislature, there was a peculiar position. The Indian National Congress which
had sought election subsequently had neither a pure majority nor a leading position in
most of the provinces. But the party being opposed to Dyarchy had not accepted
ministerial office. Therefore, the Ministers had to be chosen from the other groups. Such
Ministers did not enjoy the support of the majority of the legislature. So their

unfortunate position was that they had no popular support and they were discriminated
by the Governor.
In circumstances as discussed above, it was clear that Dyarchy was the
most unsuited form of the Government. In practice, it was also clear that the
Government of India Act, 1919, had not transferred any substantial power to the people
of India. Even the liberals in India who were in favor of giving a fair trial to the reforms
introduced by the Act were bitterly disappointed.
Nevertheless, the participation of the Congress with the Idea of wrecking
the Constitution had certain salutary effects, at any rate, in the Central Legislature.

CHAPTER IV
GOVERNMENT OF INDIA ACT, 1935
SYNOPSIS

(1) Before the Government of India Act, 1935

(a) The Simon Commission
(b) The Nehru Committee
(c) Jinnahs 14 Points
(d) Idea of Federation
(e) The first Round Table Conference
(f) The Second Round Table Conference
(g) The Third Round Table Conference
(2) Salient features of Federation
(3) Units of Federation under the Government of India Act, 1935
(4) Dyarchy in the Federation
(5) Powers of the Governor-General
(6) Federal Legislature
(7) Powers of the Governor-General and the Legislature
(8) Restrictions on Legislative powers
(9) The Scheme of distribution of Legislative powers
(10)
Provisions regarding the failure of Constitutional Machinery
(11)
Federal Court
(12)
Responsible Government in the Provinces
(13)
Limits on the powers of the Provincial Legislatures
(14)
The working of Provincial Autonomy
1. Before the Government of India Act, 1935
(a)The Simon Commission
The failure of the Government of India Act, 1919 to satisfy the nationalist aspirations,
the worsening economic conditions of the Country and development of an extremist
youth movement, all forced the British Government to give a second thought to political
development in India. Consequently, a Commission was appointed to enquire into the
Indian political situation. This Commission, to start with, compromised of 7 British
members, giving no representation to Indians. Subsequently, however it was provided
that this Commission was to co-operate with the elected members of the Indian
Legislature who were to report simultaneously; but not, jointly with the British
members. Naturally, this complete disregard of the Indian opinion gave rise to severe
protests all over the country and the Commission was boycotted by most of the Political
parties including the National Congress. The Report of the Commission was to be out in

May, 1930. The Report received little sympathy as it no way represented the Indian
opinion. The Report of the Commission emphasized the racial and communal
dissension in India. It also made much of the problem of Defense. The Report of the
Commission not only failed to please the Indian Nationalist opinion but it also offended
conservative opinion in the United Kingdom as dangerously generous.
The salient features of the Report can be summed up as follows:
1. It recommended that responsible Government should be made real in the provinces and
Dyarchy was to be discarded.
2. However, certain safeguards were to be provided against the powers to the Ministers by
grant of special powers to the Governor and also certain powers were to be under the
complete control of Indian Government.
3. The Central Government was to continue to be not responsible to the legislature, even
an element of Dyarchy was not to be introduced in the Centre. Naturally, the Report of
the Commission was treated with utmost indifference by National opinion.
(b)

The Nehru Committee

As a challenge to the Simon Commission an All Parties Conference appointed a

Committee under the presidentship of Motilal Nehru to make the Indian point of view
on Constitutional reform known to the British Government. In a sense, the Nehru
Committee was a challenge to the allegation of the Simon Commission that Indian
Political elements could not arrive at any regard solution of the Indian political problem.
The Committee made the following recommendations:
1. Dominion Status was not to be a distant goal but the next immediate step. At the same
time, it allowed liberty of action to those groups and parties which aimed at the
attainment of complete national Independence;
2. The Report confined itself to British India only as it thought that ultimate establishment
of a federation would bring about the link up to British India with the Indian States;
3. It emphasized the urgent need of provincial autonomy;
4. It contemplated a scheme of division of power between the Centre and the provinces,
the residuary powers were to be vested with the Centre;
5. Though the Report acknowledged the fact that the problem was not beyond remedy in
free India. It recommended the abolition of the separate electorates and proposed their
substitution by joint electorates with reservation of seats for minorities on population
basis. Minorities were also given the right to contest a seat other than those reserved for
them;
6. The Report submitted a list of nineteen fundamental rights which were to be embodied
in the Constitutional Statute:
Right to liberty, right to property, right to religion, right to free elementary education,
right to equality which included equality before the law, right to form associations for
improvement of labour and economic conditions, right to keep bear arms in accordance

with the Government regulations were some of the most important rights which figured
prominently in the Report. Protection was assured to the depressed classes as well;
7. Among other things, is recommended that a Supreme Court was to be established as the
final court of appeal in India;
8. The Parliament i.e Central Legislature was to consist of two Houses. The Upper House,
the Senate was to be elected by the Provincial Councils; the Lower House, the House of
Representatives was to be composed of members elected by the people on adult
franchise basis.
The provisions regarding abolition of the separate electorate and the scheme of
distribution of the legislative powers were not approved by the Muslim League. The All
Parties Muslims Conference convened at Delhi on 31 st December, 1928 opposed the
Report and Mr. Jinnah came forth with his counter proposals which are known as
Jinnahs 14 points: This scheme of Mr. Jinnah was placed before the meeting of the All
India Muslim League convened at Delhi in March, 1929.

(c)Jinnahs 14 Points
While rejecting the Nehru Report, the resolution of the League laid down as under:
That no scheme for the future constitution of the Government of
India will be acceptable to the Musalmans of the India until and unless the
following basic principles are given effect to and provisions are embodied
therein to safeguard their right and interests :
1. The form of the future constitution should be federal with the residency powers vested
in the province.
2. A uniform measure of autonomy shall be granted to all provinces.
3. All legislatures in the country and other elected bodies shall be constituted on the
definite principle of adequate and effective representation of minorities in every
province without reducing the majority in province to a minority or even equality.
4. In Central Legislature Muslim representation shall be not less than one-third.
5. Representation of Communal groups shall continue to b by separate electorates as at
present provided; it shall be open to any community, at any time, to abandon its
separate electorate in favor of joint electorates.
6. Any territorial re-distribution that might at any time be necessary shall not in any way
affect the Muslim majority in Punjab, Bengal and North-West Frontier Province.
7. Full religious liberty, i.e., liberty of belief, worship and observance, propaganda,
association and education shall be guaranteed to all communities.
8. No bill or resolution or any part thereof shall be passed in any legislature or any elected
body if three-fourths of the members of any community in that particular body oppose

such a bill, resolution or part thereof on the ground that it would be injurious to the
interests of that community, or in the alternative such other method is devised as may
be found possible and practicable to deal with such cases.
9. Sind should be separated from the Bombay Presidency.
10. Reforms should be introduced in the North-West Frontier Province and Baluchistan on
the same footing as in other provinces.
11. Provision should be made in the Constitution giving Muslims an adequate share along
with other Indians in all the services of the State and in local self-government bodies
having due regard to the requirements of efficiency.
12. The Constitution should be embody adequate safeguards for the protection of Muslim
culture and for the promotion of Muslim education, language, religion, personal laws
and Muslim Charitable institutions and for their due share in the grants-in-aid given by
the State and by the self governing bodies.
13. No Cabinet either central or provincial should be formed without their being a
proportion of at least one-third Muslim Ministers.
14. No change shall be made in the constitution of the Central Legislature except with the
concurrence of the States constituting the Indian Federation.
(d)

Idea of Federation

The Nehru Report set the atmosphere for considering the possibilities and desirability of
having a federal form of Government in India. The pressure of public opinion in India
for democratization of the Government could not be resisted much longer. It was just
during this time that the British Government also began to conceive of an idea of an All
India Federation. The British Government wanted such federation with the native States
being also its units. Probably, the British Government thought that with the help of the
Princes and Communalists, the Democratic Forces in the country could be controlled.
In the meanwhile, the Labour Party came in the office with Ramsay McDonald as the
Prime Minister.
But, the very important event that brought some hope towards the solution of the
political freedom was Lord Irwinss famous Declaration of 1929. The Declaration
proclaimed that the intention of the British Government was to grant India the status of
a Dominion and for that purpose it could attempt to bring all sections of opinion in
India together. The Declaration was received with satisfaction, even the Working
Committee of the Indian National Congress expressed its hope to be able to co-operate
with the British Government in this matter. The Indian Princes also supported the idea
of federation. They thought that by the establishment of such a federation, they would
be relieved of the paramountcy of the British Government and thereby they could be free
in their internal affairs. The Rulers of several States welcomed the idea of federation.

However, a debate in the House of Commons spoiled this atmosphere of

conciliation and satisfaction. In the debate, it was clear that the Conservatives and even
the Liberals were against giving dominion status to India. This made the Indian
National Congress suspicious of the bona fides of the British Government. Consequently
rejecting the idea of dominion status, the National Congress passed a Resolution
wherein it was claimed that complete independence was the aim of the Congress. This
Resolution passed at its Annual Session of 1929 at Lahore. Further, the Congress
boycotted the First Round Table Conference. The Civil Disobedience movement and the
Salt Satyagraha were started. There was also a no-tax campaign and picketing of liquor
shops. Throughout the country, there was great unrest. The Government started its
repressive measures. Mahatma Gandhi and other Congress leaders were arrested.
Unfortunately the bulk of Indian Muslims led by M.A. Jinnah did not join the
movement.
(e)The First Round Table Conference
It was in the above background that the First Round Table Conference started its work
without the co-operation of the Congress.
BASIS OF DISCUSSION
Prime Minister McDonald suggested that the following would be on the basis on which
discussion was to take place in the Conference.
(a)The possibility of a federation for India;
(b)
Full responsible Government with necessary safeguards in the Provinces;
(c)Partial responsibility at the Centre subject to certain reservations.
Of these three ideas, the idea of all India Federation seemed to have enjoyed a greater
support. The Rulers of the States supported the formation of the federation. The
politicians of British India made cause with the Princes. The British commercial
community also favored federation. Besides, support was also found in the House of
Parliament.
Regarding the granting of Provincial Autonomy to the provinces, there could not be any
difference of opinion. All the Indian representatives stood for it. At the same time, there
was some difference regarding the safeguards to be introduced by way of checks on the
powers of the Ministers in provinces.
The proposal for introducing partial responsibility on the Centre was also commended
and welcomed. The liberal leaders, particularly Sir Tej Bahdur Sapru and Dr. Jaykar
persuaded the British Government to concede dominion status. For that matter, Dr
Jaykar observed, If you give India dominion status today, the cry of
Independence will die out.

The communal issues could not be easily solved. Jinnah firmly supported his 14 points
formula while Dr. Ambedkar insisted that the Scheduled Castes be provided with
separate electorates. On the other hand, the other delegates advocated strongly the
cause of joint electorates with the reservation seats for the minorities. As there could not
be unanimity on several of these vital issues, the conference was adjourned sine die.
(f) The Second Round Table Conference
In the meanwhile, Lord Irwin wanted to create a proper atmosphere for the Indian
National Congress to participate in the Round Table Conference. He was aware that the
First Round Table conference was represented by only a political minority of the
country. The Civil Disobedience movement was also a very great strain on the
Government. So, Lord Irwin entered into a series of discussions with Mahatma Gandhi.
The outcome was the Gandhi-Irwin Pact. The accord of March, 1931, put an end to civil
disobedience though peaceful picketing of foreign goods was permitted. Political
prisoners who were not found guilty of violent crimes were released. It was also agreed
that certain ordinances which were objectionable in the eyes of the National Congress
were to be recalled. The Congress was to participate In the Second Round Table
Conference. Mahatma Gandhi was chosen as the single spokesman of Congress.
The political atmosphere of Great Britain had undergone considerable change by the
time the Second Round Table Conference was held. The Labour Government was
replaced by a coalition predominant position. The Indian Princes had also changed their
minds. They wanted a confederation and not a federation.
In the above-mentioned circumstances, much could not be expected from the
conference. As Dr Zacharias has observed the conference was a pompous debating
society. Two sub-committees, one federal structure and the other on the minorities
were formed to scrutinize and amplify the reports of the sub-committees of the First
Round Table Conference. Gandhiji demanded full responsibility at the Centre as well as
in the provinces in accordance with the agreement under the Gandhi-Irwin Pact. It was
true that certain safeguards were to be provided for along with the concept of full
responsibility.
The minority Committees deliberations also revealed that the safeguards would
completely undermine the concept of self-Government. The demands made by the
minority Committees were incompatible with each other. The Muslims wanted absolute
majority in the Punjab and Bengal and 1/3 representation at the Centre, the Sikhs on the
other hand, demanded weightage in the Punjab, the Europeans and the Scheduled
Castes did not lag behind in the demanding weighatge. The communal issue was
deliberately brought in the limelight by the British. The purpose was to shelve the main

issue of self-Government. Gandhiji was completely disillusioned. Thus the Conference

was an utter failure.
On his return to India he found that there was a complete change of the attitude of the
Government under Lord Willingdon who was the Viceroy then. Gandhiji was arrested
and the Congress was banned. Preventive detention was taken recourse to on a large
scale and the property of the Indian National Congress and other allied organizations
were attached.
It was in this atmosphere that the Third Round Table Conference was called.

(g)The Third Round Table Conference

In this conference neither the Congress not the Labour Party of the Great Britain
participated. The Conference was smaller in size though the agenda was prcised and
well defined. Just before the Conference, the communal award was made. According to
this award, separate electoral districts were created on a religious and communal basis.
Muslims, Anglo-Indians, Indian Christians, Sikhs, Europeans and depressed class had a
certain fixed number of seats in the legislature. This provoked Mahatma Gandhi to
begin the fast unto death. However, an understanding was arrived at between Dr.
Ambedkar, the leader of the Scheduled Castes and Mahatma Gandhi which was known
as the Poona Pact.
The White Paper
The Round Table Conference continued its deliberations. The outcome was
that certain definite proposals were advanced by the Government which were
subsequently contained in the White Paper of 1933. The main features of the White
Paper were the following:
1. There was to be a federation in India provided certain number of Indian States agreed to
accede to the federation.
2. Provincial autonomy subject to certain special responsibilities and safeguards was to be
introduced.
3. The executive on the Centre would also have an element of popular responsibility.
4. The Muslims would be granted 33.5% of the seats allotted to British India in the Central
and Provincial Legislatures.
The White Paper provoked a lot of controversy. Therefore, a Joint Select Committee was
appointed to examine the White Paper proposal and to make a report of the Joint Select
Committee, a bill was introduced in the Parliament. This bill became the basis of the
Government of India Act, 1935.

2. The Salient Features of Federalism under the Government of India Act,

1935
The pattern of federalism adopted under the Government of India Act,1935, was the
most complex due to the following reasons.
-

The process of federalism was not a process of integration but a process of

decentralization. The provinces which were a part of the British Indian Empire were
never independent identities. By this Act it was intended to give provincial autonomy to
those provinces and thus form a policy.
The units of the federation did not enjoy a uniform status. Even in British India there
were Governors provinces. Besides it was also intended to bring in the Native States as
units of federation.
The need for bringing the Native States as units of federation presented certain peculiar
problems as these States did not want to be the units of federation on a uniform basis.
The federal Government was not to be a responsible or an independent government but
it was to be essentially subordinate and responsible to the British Government.
These special circumstances made federation extremely complex machinery under
Government of India Act, 1935.
In view of the above special circumstances, the pattern of federation under the Act
developed certain peculiar characteristics.
It is no doubt true that the federation exhibited all the normal characteristics of a federal
government. There was a scheme of distribution of legislative powers. There was a rigid
constitution and there was also a Federal Court which was to secure the due observance
of the limits placed on the Centre and provincial Governments and legislatures. The
Constitution was written and amendment was extremely rigid. Nevertheless, the
federation contemplated under the Government of India Act, 1935, was far from being a
normal federation. The salient features of the federation could be summed up as follows:
(a) The federation attempted to confer autonomy on the provinces and then bring them
together under a federation. This process of decentralization naturally resulted in
allotting comparatively small powers and functions to the provinces.
(b) The other units of the federation were to be the States. The peculiar position of the
States was that they were subject to the paramountcy of the British Crown. These States
enjoyed greater independence and autonomy. Therefore, naturally, they were reluctant
to surrender greater powers to the federal Government. Consequently, it was to be
arranged that the Native States could be subject to the authority of the federal

Government in a smaller sphere than the provinces. This resulted in their being a
federation with the units retaining varying degree of powers.
(c) The Native States were to accede to the federation by signing an instrument of
Accession. But it was never contemplated to have uniform Instrument of Accession for
all the States. So, each State could surrender powers to the federation different from
those surrendered by other States.
(d) As a result of the above factor the Constitutional document that accommodated the
federal form of Government would not be one; there could be multiplicity of such
documents.
(e) The Governors of the provinces were subject to the control of the Governor General
in all matters which they were required to act at their discretion or in their individual
judgement. Thus, the head of the province was subordinate to the head of the
federation.
(f) The power to amend the Constitution was entirely vested in the British Government
and the Parliament, neither the federal legislature nor provincial legislature has any
such powers.
(g) Normally, in a federal Constitution, the Upper House establishes the principle of
equality of the units and the Lower House national unity. But, under this Act the Council
of States, the Upper House was not constituted on the principle of equality. Certain seats
were allotted to the provinces and the representation of the States was made contingent
on several factors. The members of the Council of States were not uniformly elected. The
representatives of the British India provinces were to be mostly elected directly; while;
the representatives of the States could be nominated by the Rulers of the State. The
Federal Assembly was to be elected, but the principle of communal representation was
also introduced. Besides, the States were given a larger proportion of seats in the
legislature than they deserved on the basis of their population.
(h) The Government at the Centre was not a fully responsible Government, though
larger element of responsible government was introduced in the provinces. The
principle of diarchy, discredited at the provincial level while working the Act of 1919,
was introduced at the Centre under this Act.
(i) Many of the important departments like those pertaining to defence, foreign affairs,
etc, were under the exclusive control of the Governor General who was responsible only
to the British Crown through the Secretary of State for India. The Central Ministers who
were responsible to the federal legislature had no powers in respect of such
departments.

(j) The Centre had vast powers to intervene in the affairs of the province. As observed
above, the Governor of a province was subject to control of the Governor-General even
in provincial matters which were in the discretion or individual judgment of the
Provincial Governor. But, in the case of the States even the federal law could be
administered only by the Rulers of the State.
(k) The Federal Court constituted under the Act was not the final custodian and the
guardian of the Constitution. Constitutionally, issues were dealt partly by the High
Courts, partly by the Federal Court but the final interpretation of the Constitution rested
always with the Privy Council. No Indian legislature could restrict the appellate
authority of the Privy Council.
(l) The residuary power in the case of British India could be located by the GovernorGeneral either in the federal legislature or in the provincial legislature. But, in the case
of the States, the residuary power rested in the Ruler himself.
Conclusion: In view of the peculiar characteristics exhibited by the federation
contemplated under the Government of India Act, 1935, it could hardly be called federal.
Some writers have described it as quasi-federal.
3. The Units of the Federation under the Government India Act, 1935.
The contemplated federation was to have the following units:(a) Governors Provinces,
(b) Chief Commissioners Provinces, and
(c) Federated States.
As observed before, the relationship between these units and the contemplated
federation was not to be uniform. The federal principle was restricted to the Governors
provinces and the federated States, while the Chief Commissioners provinces were
under the control of the Governor General in executive matters.
There were 11 Governors provinces. They were as follows:
Madras, Bombay, Bengal, United Provinces, Punjab, Bihar, Orrisa, Central Provinces
and Berar, Assam, North-West Frontier Province and Sind.
The Chief Commissioners provinces were
British Baluchistan, Delhi, Ajmer, Mewar, Coorg, Andaman and Nicobar Islands,
and the area of Panth Pipoloda.
As observed, the accession of the States was voluntary. Each state could accede by
excuting and Instrument of Accession. But, the States did not agree to the accede and

accordingly, the federal part of the Government of India Act never came into effect
except in th establishment of the Federal Court.
4. Dyarchy in the Federation
The federal executive was to be constituted on the principle of diarchy. There were to
be Councillors and the Council of Ministers. But this part of the Act never came into
effect. Nevertheless a brief description of the federal executive may be instructive. The
structure of the executive was in brief as follows:
The Governor-General was granted the executive power of the King. The powers
extended to all matters in respect of (a) which the federal legislature could make laws,
(b) the raising of defence for the Crown in British India and (c) the governance of the
forces of the Crown borne on the Indian establishment and (d) the exercise of the right
possessed by treaty, grant, usage, sufferance or other lawful means in respect of the
tribal areas. But, in the federated states, it extended only to matters over which the
federation had legislative power, in so far as such executive authority was not reserved
in whole or part of the State.
Thus, the Governor-General had dual character. He was the Governor-General of
India with respect to British India. He was also the Crown representative exercising
paramount with respect to the Indian States.
5.Powers of the Governor- General
As observed above, diarchy was to be the characteristic of the federal executive.
Therefore, there were certain matters in which the Governor-General acted at his own
discretion (that meant without consulting the ministers) in all the other matters; he was
to act on the advice of the Ministers unless when he could exercise his individual
judgement. He could seek the advice of the Ministers but was not bound by it. But when
he acted at his own discretion, Ministers had no right to tender advice to him.
Subjects on which Governor-General could act at his discretionThe subjects on which he could act at his discretion were the following:
Defence, ecclesiastical (affairs relating to religious ministrations to British forces and
servants) and external affairs except in relations between India and any part of Kings
Dominions. He also exercised discretion in regard to the tribal areas.
In these matters he was to be aided by 3 Councilors, appointed by himself, whose
conditions of service were determined by the King in Council. However, joint
consultation with the Ministers was also recommended. The subjects over which he
could exercise his individual judgment were the following:

(i) Prevention of any grave menace to peace and tranquility of India or any part thereof.
(ii) Safeguarding of the financial stability and credit of the federal Government.
(iii) Safeguarding the legitimate interests of the minorities.
(iv) Securing of legal and equitable rights and the safeguarding of the legitimate
interests of members of the Public Services.
(v) Prevention of discrimination, by executive action, against British subjects domiciled
in United Kingdom and companies incorporated in that country.
(vi) Prevention of executive action, which would subject the good of the United Kingdom
or of Burmese origin imported into India, to discriminatory or penal treatment.
(vii) Protection of the Rights of any Indian State and the rights and dignity of the Ruler
thereof.
(viii) Securing the due discharge of his functions with respect to which he is required to
act at his discretion or exercise his individual judgment.
The powers of the Governor-General were extraordinary. These extraordinary
powers were bestowed on him to protect various interests, like those of the minorities
and princes, economic interests of the United Kingdom, public officers, prevention of
commercial discrimination, etc. As the Joint Parliamentary Committee observed these
powers were necessary to hold the scale evenly between the conflicting interests and to
protect those who have neither influence nor ability to protect themselves The
Governor-General was also issued an instrument of instructions, which advised him as
to the mode in which his special responsibilities were to be discharged.
It can be said that the whole thing was camouflaged as to cover the unwillingness
to transfer real powers to Indians. The Central executive was admitted to be based on a
system of diarchy which was thoroughly discredited in the provinces under the
Government of India Act 1919. Therefore, any amount of justification of it could be
concealing the real intentions; it was natural that this part of the Government of India
Act, 1935, could not be put into effect.
6. Federal Legislature
The federal legislature consisted of the King, represented by the Governor-General,
the Council of States and the Federal Assembly. The Council of States was a permanent
body, one third of the members retiring every 3 years. On the other hand the Assembly
had maximum duration of 5 years.
(a) Council of States
The composition of the Council of States was 156 members for British India and 104
for the States. The number in the case of States depended on the number of States
acceding to the federation. The members from British India were directly elected with
the exception of those to be nominated by the Governor-General for the purpose of

securing due representation of the Scheduled classes, women and minority

communities. There were 75 general seats, 6 for Scheduled Castes, 4 in the Punjab for
Sikhs. 45 for Mohmmedans and 6 for women, 7 for Europeans, 2 for Indian Christians
and 1 for Anglo-Indians were to be filled indirectly by members of an electoral college
composed of such members of the Chamber or Chambers of the Provincial Legislature.
The territorial seats were allocated to the Various Governors and Chief Commissioners
Provinces.
(b) Federal Assembly
In the Federal Assembly there were supposed to be 250 representatives of British
India, and 125, as maximum for the States. The Federal Assembly was, so far as the
British Indian section was concerned, to be largely composed of representatives
returned from the territorial constituencies. In each province certain seats were
allocated to the minorities communities returned by the voters voting in separate
communal electorates. Such minorities were the Sikhs in the Punjab, Muslims,
Christians, Anglo-Indians and Europeans. The depressed classes were assured of some
representation by the system of reserved seats in joint electorates of the general
constituencies. Apart from the communal seats, certain interests were given special
representation in the Federal Assembly. Seats for commerce and Industries were to be
filled by Chambers of Commerce and like bodies, for land holders by land holders, for
labour by labour organizations. The representatives from the States were to be selected
by the Rulers in such manner they thought fit.
The salient features of the federal legislature could be summed up as follows:
(i) Communal electorates and representation for special interests.
(ii) Direct elections from British India.
(iii) Nomination by States.
7. Powers of the Governor-General and the Legislature
Normally, a head of the State would enjoy certain legislative powers. But the powers
of the Governor-General in relation to the legislature were extraordinary under the
Government of India Act. He had the following powers:
(a) He could summon either House of the Federal Legislature at his discretion; he could
prorogue them or dissolve them at his discretion.
(b) He could frame rules in the consultation with the Presiding Officers of the Houses:
(i) On any matters in relation to those which he could act at his discretion or in his
individual judgment;

(ii) Prohibiting discussion on certain matters or prohibition of discussion of certain

matters except with his consent. For example:-- He could prohibit the discussion of the
subject of relation between his Majesty or the Governor-General or any foreign state;
(iii) On matters pertaining to administration of tribal areas or any excluded areas;
(iv) On matters pertaining to action taken by the Governor-General in relation to the
affairs of the Province;
(v) On matters pertaining to personal conduct of any Indian Ruler or the member of
the Ruling Family;
(c) He had the right of addressing or sending messages to both the Houses;
(d) No bill could be an Act unless he gave his assent. When a bill was placed before him
he could give his assent, return it for consideration of the Legislature or reserve it for the
signification of His Majestys pleasure;
(e) He had the power to issue Ordinances when the Legislature was not in session, he
could also issue Ordinance in respect of certain subjects. He could also enact permanent
legislation in matters pertaining to the exercise of discretion or individual judgment,
explaining his action to the chambers by judgment;
(f) He could also send the Chambers a draft of his proposed Act.
8. Restrictions on Legislative Powers
It was quite evident that the Government of India under the Government of India
Act, 1935, enjoyed powers which were less than powers of a Dominion.
Even in the Dominions, the legislature of the Dominions could not pass a law
repugnant to Imperial legislation which was applicable to those Dominions. In case of
repugnancy, the laws of the Dominions were void. However, in the case of India further
restrictions were imposed. Those restrictions can be summed up as follows:
(a) The supremacy of the Parliament over British India and its power to legislate for
British India were asserted in the Act;
(b) No legislature, provincial or federal, could make any law affecting the sovereign or
the Royal family, or the succession of the throne or the sovereign dominion or
suzerainty of the Crown;
(c) The legislatures were also prohibited from making any law pertaining to some
subjects like the discipline of the Navy and the Prize Courts;
(d) The legislatures were also prohibited from the Prerogative rights of his Majesty to
grant special leave to appeal from any Court.
In the above case, any Act, exceeding the limits prescribed, could be invalid to the
extent it exceeded limit. Besides, there were also certain bills which required a prior
sanction of the Governor-General in his discretion. The included bill or amendment:

(a) Which repealed, amended or was repugnant to any provisions of any Act of
Parliament which extended to British India;
(b) Which repealed or amended or was repugnant to any Governor-Generals or
Governors Act or any Ordinances promulgated in his discretion by the GovernorGeneral or Governor;
(c) Which affected matters in respect of which the Governor-General was required to
exercise his discretion;
(d) Which repealed, affected or amended any Act relating to any police affairs;
(e) Which affected the procedure for criminal proceedings in which European British
subjects were concerned;
(f) Which subjected persons not resident in British India to a great taxation than
persons resident in British India;
(g) Which affected the grant of relief from any Federal tax or income in respect of
income taxed or taxable in the United Kingdom.
9. The Scheme of Distribution of Legislative Power under the Government of
India Act, 1935
The power of the federal legislature extended to making laws for any part of British
India and any federated State, in respect of the subjects in the federal list and the
concurrent list; while the power of the provincial legislatures extended to making laws
for the provinces or part of thereof in respect of subjects in the provincial list and in the
concurrent list.
The Federal Acts could also have extra-territorial operation in certain circumstances.
The federal list and 59 subjects like defence forces, external affairs, currency, posts and
telegraphs, etc. the provincial list had 54 subjects like public order, administration of
justice, police, agriculture, land and land tenures, etc. the concurrent list had 36 subjects
like criminal law, marriage and divorce, testamentary and intestate succession.
The exercise of these legislative powers was subject to the restrictions discussed above.
The relevance and influence of the Government of India Act, 1935, on the Constitution
of India must be discriminately and carefully appreciated. Under the Government of
India Act, 1935, there was a resemblance of a Federal scheme with predominant powers
in the Central Government which was subject to the paramountcy of the British
Parliament. It is true that there were 3 lists in the scheme of distribution of legislative
powers. The lists were the central list. There is a similar distributor of legislative powers
under the Constitution of India but under the Constitution of India the President (under
the advice of the Central Cabinet) has the dominant powers. Under the Government of
India Act, 19356, the scheme of distribution could be altered under certain
circumstances by the Governor-General. Whereas, the President (of course subject to

the advice of the Central Cabinet) can alter such a scheme of distribution of legislative
powers, only under some circumstances.
To some extent, the Presidents rule under the Constitution of India in circumstances of
emergency or when there is a failure of constitutional machinery in a State has some
resemblance to the provisions of the Government of India Act, 1935.
Under the Government of India Act, 1935, the provinces were enjoying very limited
autonomy; whereas, in the Constitution of India such autonomy has extended to some
extent.
The provisions of the Government of India Act, 1935, regarding emergency seem to have
inspired the corresponding provisions of the Constitution of India.
The structure of the judiciary under the Government of India Act, 1935, was unified for
the first time by establishment of the Federal Court. That Court was subject to the
appellate jurisdiction of the Privy Council. Whereas under the Constitution of India the
Supreme Court is the highest Court having appellate powers over all the judicial bodies
in the country and its decisions are not subject to the appellate jurisdiction of any
authority.
In conclusion it can be said that some features of the Government of India Act, 1935,
inspired or influenced the Constitution of India though of course the constitution of
India has its own separate and independent characteristics.
10.

Provisions regarding failure of Constitutional Machinery.

If the Governor-General was satisfied that the Government of the federation could not
be carried on under the Act he could issue a proclamation declaring that he could
assume any powers exercisable by any federal authority other that the Federal Court and
the powers so assumed could be exercised at his discretion. He could also modify the
Government of India Act, 1935, for this purpose in so far as it affected any federal
authority other than the Court. Such proclamation was required to be laid before both
Houses of Parliament (British) and it ceased to operate 9 months later, unless both
Houses of Parliament approved its continuance. If so approved it could be in operation
for further period of 12 months.
11. Federal Court
As the Government of India Act, 1935 contemplated a federation for the whole of India,
it was necessary that a Federal Court was to be established. Therefore, the Act provided
for the constitution of a Federal Court. The Federal Court consisted of Chief Justice of
India and judges not exceeding 6 in number. However, the number of Judges could be
increased by an address presented by the Legislature asking for an increase. Judges

were to be appointed by the Crown and they were to hold office until the age of 65.
However, a Judge could resign or be removed on the ground of misbehavior, or a mental
or bodily infirmity if the Privy Council on reference by the Crown so recommended.
The qualification of a Judge of the Federal Court was that he should have been at least
for 5 years a Judge of a High Court in British India or a federated State or a barrister or
advocate of 10 years, standing or a pleader in High Court pr Courts of like standing. The
Chief Justice must have instead of 10 years qualification, 15 years and must have been a
barrister, advocate or pleader or have been one when he was appointed as a Judge.
The jurisdiction of the Federal Court was both original and appellate.
(a) The Court had exclusive original jurisdiction in any dispute between members of the
federation, the provinces and the federated States which involved a question of law or
fact on which the existence or extent of a legal right depended. If a State was a part, the
dispute must have concerned the interpretation of the Government of India Act, 1935 or
order-in-Council thereunder or the extent of the legislative or executive authority vested
in the federation by the Instrument of Accession. It would also cover a dispute arising
under an agreement between the federation and the States regarding subjects
surrendered to the federation by the Princely States.
(b) The appellate jurisdiction of the Federal Court was confined to such proceeding in which
any High Court in British India had given a certificate that the proceedings involved a
substantial question of law as to the interpretation of the Act or order-in-council
thereunder. It was also provided that with the previous sanction of the GovernorGeneral in his discretion, the legislature might provide for appeals without certificate
from the High Court. If the amount at issue was above some specified financial value,
provision also could be made for preventing direct appeals from High Courts to the
Privy Council with or without special leave.
(c) In the case of a State, appeal could be brought on the question of the interpretation of
the Act or order-in-Council thereunder.
An appeal could lie to the Privy Council from the Federal Court without leave from any
decision of the Federal Court in its original jurisdiction dealing with the interpretation
of the Act or in order-in-Council thereunder.
The Federal Court also had an advisory jurisdiction. While exercising its jurisdiction, the
Court could give its opinion on matter of law or a fact whenever the Governor-General
sought its advice in the matter.
However, it has to be noted that the Federal Court was not the final Court to interpret
the Government of India Act, 1935. Appeal could be taken to the Privy Council from the
Federal Court. Yet, it has to be noted that the Federal Court discharged its functions in
an admirable manner maintaining the highest standards of independence and

impartiality. The effective functioning of the Federal Court paved the way for the
establishment of Supreme Court after independence.

12.Responsible Government in the Provinces

The Government of India Act, 1935, was a definite improvement so far as the Governors
Provinces were concerned. The British Prime Minister, Ramsay McDonald had observed
in his concluding speech at the Second Round Table Conference as follows:
We are all agreed that the Governors Provinces of the future are to be
responsibly governed units, enjoying the greatest possible measure of
freedom from outside interference and dictation in carrying out their own
policies in their own sphere.
This measure of responsible Government was popularly known as Provincial Autonomy.
Provincial Autonomy had two aspects: firstly, it meant independence from the Central
Government, secondly; it meant responsible Government within the province. But, such
autonomy was not complete there being some limitations on it. It was true that there
was no diarchy in the provinces under the present Act. Therefore, there were no
important departments of Government which were reserved from the control of
Ministers. Nevertheless, the Governor had certain responsibilities. They are as follows:
-

Prevention of any grave menace to the peace and tranquility of the province or any part
thereof;
Safeguarding the legitimate interests of the minorities;
Securing of the legal and equitable rights and safeguarding the legitimate interest of the
public services;
Prevention of discrimination against British subjects domiciled in the United Kingdom
or companies incorporated in that country;
Securing of the peace and good government of the Partially Excluded areas;
Protection of the rights of any Indian State and the rights and dignity of any Ruler
thereof;
Securing of the execution of orders or directions issued by the Governor-General at his
discretions.
The Governor was appointed by the Crown on the advice of the Secretary of State for
India. He had a Council of Ministers to act and advise him in the exercise of his powers.
The AssembliesLower Houses were to represent the people.
The Council was a permanent body, 1/3 of the members retiring every three years. The
constituencies were not at all General constituencies. But there were also communal

constituencies as settled by the British Governments Communal Award of August, 1932.

But so far as the Scheduled Castes were concerned a substantial portion of the general
seats were assigned to them. In such constituencies there had to be primarily elections
in which only the members of the Scheduled Castes participated and chose four
candidates for each vacancy reserved for them. Thereafter, there would be an election
where all the voters of the general constituencies could vote, and the candidate getting
the highest number of votes among those four could be deemed to have been elected.
Seats were also reserved for Mohmmedans, Sikhs, Europeans, Anglo-Indians,
Christians, representatives of Commerce, industry, mining, and plantations, landlords
and labour.
The council had a majority of members elected by the Assembly. The system of voting
was that of proportional representation with the single transferable vote. Some of the
members were also nominated by the Governor to secure due representation to
Scheduled Castes and women.
The members of the Assembly were elected directly. The franchise varied not only from
province to province but even in some cases from community to community. But it was
restricted as only 4% of the population had a right to vote.
13. Limits on the powers of the Provincial Legislature.
Though it was claimed that the provinces were autonomous; yet, there were certain
restrictions on the legislative powers of the Provincial legislatures. While introducing
certain bills, previous sanction of the Governor-General was necessary. The bills were
pertaining to the following subjects:
(i) A bill affecting any Act of Parliament applicable to British India;
(ii) Any bill affecting any matter regarding which the Governor- General required to act
at his discretion or to exercise his individual judgment;
(iii) Any bill affecting any Governor-Generals acts or ordinances issued by him at his
discretion;
(iv) Any bill affecting the procedure for criminal proceedings against European subjects.
Apart from these restrictions requiring the prior sanction of the Governor-General,
there were also certain restrictions which arose out of the legislative powers of the
Governor.
As head of the province, the Governor at his discretion could summon and prorogue the
legislature. He could also dissolve the Lower House. If need be, he could summon the
joint sitting of two Houses. He could also address the legislature or send messages to it.

As the head of the State, he could give assent to a bill or withhold the assent or return it
for consideration. He could also reserve it for consideration of Governor-General.
The Governor also had powers to enact legislation of a temporary or a permanent
character, on his own authority. He had the powers to issue ordinances both when the
legislation was in session and also when not in session. In the legislature, a bill affecting
a Governors acts or ordinances could not be introduced without the prior sanction of
the Governor.
When the Governor reserved a bill for the consideration of the Governor-General, the
latter could either give his assent or reserve It for the signification of His Majestys
pleasure. Further, His Majesty could disallow an act assented by the Governor-General
or the Governor within 12 months of such assent.
A finance bill could be introduced only with the recommendation of the Governor.
Certain expenses were charged on the revenue of the provinces and they could not be
voted by the legislature. Such expenses included the salaries and other allowances of the
Governor, Ministers, Judges, etc. but the Governor, could decide at his discretion,
whether the item was charged on the revenue or not. These restrictions made the
powers of the Governor and the Governor-General very real even in legislative matters.
Therefore, to this extent, autonomy of provincial legislatures was restricted.
However, it must be noted that such restrictions were common even in the British North
America Act which provided the Constitution of Canada. With the growth of
Conventions and understandings, Provincial Autonomy could be made more real that it
was provided in the Act.

14. The Working of the Provincial Autonomy

As observed above, the frame work of the Constitution of the provinces had certain
serious limitations. But nevertheless, with a proper spirit and understanding it was not
possible to work out an autonomous administration. What was necessary was a
sympathetic understanding between the Governor, Council of Ministers and the
Legislature. In the elections held after the inauguration of the Act, in 5 provinces the
Indian National Congress had big majorities. These provinces were, Madras, Uttar
Pradesh, Bihar, Central Provinces and Orrisa. In Bombay, Assam and North Western
Frontier Province, the party was the largest single group. In Bengal, Punjab and Sind it
had minority. The Indian National Congress was not prepared to accept office even in
those provinces where it had majority unless the Governors gave assurance. However,
the statesmanship of Marquess of Zetland, the Secretary of State for India and Lord
Linlithgow, the Governor-General paved the way for an understanding between the
Congress and the Governors. It was accepted that the powers of intervention if the

Governors would be sparingly used. At this assurance, the Congress accepted the office
and continued to be in the office for two years until the outbreak of the Second World
War. It should be said to the credit of the Governors and the Indian Statesman that
during these 2 years there was smooth working of Provincial Autonomy apart from
minor frictions here and there; particularly, in those provinces where the Congress was
in power.
Out of the working of the Council of Ministers during the short period of 2 years, certain
developments were discernible. The working of the Government exhibited all the
trappings of the Cabinet system of Government.
(a) The principle of joint responsibility and the superiority of the Prime Minister over
his colleagues became settled features of the Government.
(b) Though the extraordinary power of the Governor-General was provided for giving
adequate representation to the minorities it was generally not necessary to use such
power. In all those provinces where the Indian National Congress formed Governments,
the minorities had an adequate representation;
(c ) The distribution of work and allocation of departments were left to the Council of
Ministers and the Governor had no occasion to intervene.;
(d) Though, in some provinces, legislation of radical nature was passed by the
legislature, the Governor seldom opposed it. The wishes of the legislature were
respected;
(e) Though, the Governor had the powers to dismiss any Ministry, this power was hardly
used. On the issue of the war, when there were serious differences of opinion between
the National Congress and the British Government the Council of Ministers voluntarily
chose to resign.
In brief, it can be said that Provincial Autonomy under the Government of India
Act,1935, was a considerable success. It also revealed to the world that Indians were not
lacking in statesmanship and abilities of administration. For that matter, the
Government of several provinces earned the respect of many statesmen outside India.
Besides, it was for the first time that more or less real responsible Government became a
reality in India. It is not surprising that many who were Ministers in the provinces
during that short period participated in the constitutional development and
administration of the country later.

CHAPTER V
TOWARDS INDEPENDENCE
1.
2.
3.
4.
5.
6.
7.

The Second World War and thereafter

Demand for Pakistan
The Cripps Mission
Quit India
The Wavell Plan
The Simla Conference
The Cabinet Mission Scheme
a. Merits
b. Demerits
8. Constituent Assembly

9. Attlees Statement
10.
The Mountbatten plan
11. The Indian Independence Act, 1947
12.The Constitution
1. The Second World War and thereafter
The working of the provincial autonomy under the Government of India Act,
1935, came to a sudden end after the break of the Second World War. Indian
Nationalist opinion, particularly, the Indian National Congress had always feared
that India would be dragged into imperialist wars of Great Britain and thus the
men and resources of the country would be exploited for imperialist ends. The
Congress protested against the dispatch of Indian troops to Egypt, Singapore and
Aden in August, 1939.
On September 3, 1939, England declared a war against Germany and it was said
that the war was fought to make the world safe for democracy and for preserving
democratic ideals. It was also said that one of the aims of the war was to protect
the right of self-determination of all nations. India was also declared as a country
at war by the Viceroy. Though, the Indian National Congress was sympathetic to
the cause of England and her allies in their fight against Nazism and Fascism; yet,
the Working Committee of the Indian National Congress demanded clarification
of Britains war aim in relation to India. It was natural that the Congress should
have demanded full democracy in India when it was Britains war aim to protect
the right of self-determination of all nations. However, the British Government
evaded the main issue by holding out the cause of the Muslim League and the
Princes. As a protest, the Congress called upon all its Ministers to resign.
Unfortunately, Jinnah called upon the Muslims of India to observe a day of
deliverance as a mark of relief that the Congress regime had at least ceased to
function. The Viceroy invited Gandhiji, Dr Rajendra Prasad and Mr. Jinnah to
attend a meeting. At the meeting the Viceroy suggested the possibility of
immediate expansion of the Executive Council of the Viceroy and also of coalition
ministers in the provinces. It was obvious that these suggestions were not
acceptable to the Congress. However, when the war situation took a bad turn for
the British by the middle of 1940, Congress became sympathetic to the cause of
the allies. It offered its co-operation provided Indias right to complete
Independence was acknowledged and immediate provisional Government was
established at the Centre. It was unfortunate that Mr. Churchill, the prime
minister of the Great Britain that he had not become His Majestys first minister
to preside over the liquidation of the British Empire. This failure of appreciation
of the friendly gesture of the Indian National Congress led to the movement of
individual civil disobedience.

2. Demand for Pakistan

In the meanwhile, the Muslim League consolidated its position and passed its
Pakistan Resolution.
When the civil disobedience movement was at its zenith, the Viceroy expanded its
Executive Council by appointing 5 Indians to it. After this expansion, in a Council
of 13, there were 8 Indians. However, important departments like defence, home
and finance were kept with the British members. Neither the Indian National
Congress nor the Muslim League agreed to take places in the Council.
3. The Cripps Mission
In the earlier stages, the war took a bad turn against the British. France, an ally of
the British became an easy prey to Germany. With Japans entry the situation
worsened. Having conquered most of the British possessions in East, Japan
threatened to invade India. The German Ariel attacks were extremely fierce and
Britain was putting up a desperate fight. The adverse situation of the war
compelled the British statesmen to make efforts to appease Indian opinion. It was
in the context that Sir Strafford Cripps, a member of the British Cabinet was sent
to India to enter into direct negotiations with the Indian political parties and
communities. In March, 1942, Cripps reached India. His proposals as summed up
by Dr. M.V. Pylee are as follows:
-

The object of His Majestys government was the creation of a new

Indian Union which shall constitute a Dominion in the British
Commonwealth but in no way sub ordinate to Britain in any aspect of
its domestic or external affairs.
Immediately upon cessation of hostilities, steps shall be taken to set up
India an elected body charged with the task of framing a new
constitution for India.
Provision shall be made for the participation of Indian States in the
constitution making body.
His Majestys Government undertakers to accept and implement
forwith the constitution so framed subject only to:
a. The right of province of British India that is not prepared to accept of
new constitution to retain its present constitutional position, provision
being made for its subsequent accession, if it so decides. If such nonacceding provinces so desire, they will be allowed to have a constitution
of their own with the same status as the Indian Union.
b. A treaty shall be signed after due negotiation between his Majestys
Government and the Constitution making body. This treaty will cover

all necessary matters arising out the complete transfer of responsibility

from British to Indian hands; it will make provision in accordance with
the undertakings given by His Majestys Government, for the
protection of the racial and linguistic minorities, but will not impose
any restriction on the power of the Indian Union to decide in future its
relationship to other member of States of the British Commanwealth.
Whether or not an Indian State elects to adhere to the constitution, it
will be necessary to negotiate a revision of its treaty arrangements so
far as this may be required in the new situation.
5. The constitution making body shall be composed as follows, unless the leaders
of Indian opinion in the principal communities agree upon on some other form
before the end of hostilities.
The entire membership of the Lower House of provincial legislatures (constituted
immediately after the end of the war) shall, as a single electoral college, proceed
to the election of the constitution making body by the system of proportional
representation. This body shall be in number about 1/10 th of the Electoral College.
Indian States shall be invited to appoint representatives in the same proportion
to their total population as in the case of representatives of British India as a
whole and with the same powers as British Indian Members.
6. During the critical period which now faces India and until the new constitution
can be framed, His Majestys Government must inevitably bear the responsibility
for, and retain the control and direction of the defence in India as a part of their
World War effort; but the task of organizing to the full the military, moral and
material resources of India must be the responsibility of the Government of India
with co-operation of the peoples of India. His Majestys Government desires, and
invites, the immediate and effective participation of the leaders of the principal
sections of the Indian people in the counsels of their country, of the
Commonwealth and the United Nations. Thus they will be enabled to give their
active and constructive help to the discharge of the task which is vital and
essential for the future freedom of India.
There was a prolonged discussion between Sir Strafford Cripps and the leaders of
the Indian political parties. On the whole, Indian National Congress rejected
these proposals though various leaders of the Congress did it for different
reasons. Maulana Azad, the president of the National Congress rejected it on the
ground that it did not bring immediate freedom to India. Gandhiji himself
rejected it on the ground that he was opposed to the war itself. Only Pandit
Jawaharlal Nehru who was in favour of democracies was inclined to accept.

However, the resolution of the Working Committee which reflected the collective
approach of the Congress rejected the proposal on the following grounds:-(a) That the proposals gravely imperiled the national unity of India.
(b) That under the proposals, the Constituent Assembly would be most
undemocratic and thus it would favour the reactionary forces in India.
(c ) That there would be no effective control over the defence and, therefore, It
would be difficult to make the people of India enthusiastic over war efforts.
(d) The transitional proposals were also unacceptable.
The Muslim League expressed its full satisfaction at the recognition of the
Muslim claim for the separation but yet rejected the proposals after the Congress
had rejected it. The ground for rejecting the proposals was that the Muslim
League wanted a plebiscite for the purpose of determining the choice of a
province, to be in India or to opt out of India was to be participated only by the
Muslims. While the proposals had suggested that such plebiscite must be
participated by the people of the communities inhabiting the province in
question.
The Hindu Mahsabha, the Scheduled Castes and the Sikhs opposed it for various
reasons.
It was unfortunate that the proposals which attempted to please and
accommodate every shade of public opinion in India ultimately ended in pleasing
none. However, the proposals were withdrawn suddenly on April 11, 1942.
4. Quit India
With the failure of the Cripps proposals, there were all round frustrations in
India. The Working Committee of the Indian National Congress in its meeting at
Wartha on July 14, 1942, demanded the withdrawal of British from India. The All
India Congress Committee endorsed the resolution of the Working Committee at
its Bombay session on the 8th August, 1942. The Committee resolved to sanction
for the vindication of Indias inalienable right to freedom and independence, the
starting of a mass struggle on non-violent lines on the widest possible scale.
Consequently, there was Quit India Movement on 9 th August, 1942. Before
daybreak, Gandhiji and other members of the Working Committee and a large
number of other leading citizens of Bombay were arrested, with the result there
was a mass revolt and a bureaucratic repression. This mass frenzy and the
autocratic barbarism deeply moved Mahatma Gandhi. After some
correspondence, Gandhiji started a fast for self purification. After the successful

termination of the fast, Gandhiji was released on May 6, 1944. After his release,
he made fresh attempt for reconciliation with the Muslim League.
C.Rajgopalachari who had resigned from the Congress advanced a formula for
bringing together the Congress and the Muslim League by agreeing to Pakistan
with a mutual agreement for jointly safeguarding defence, commerce an
communications between India and Pakistan. After a month of long discussion
between Gandhiji and Jinnah, there could be no agreement between the two.
5. The Wavell Plan
In October 1943, Lord Wavell succeeded Lord Linlithgow as the GovernorGeneral of India. As the Commander-in-Chief of India he was well acquainted
with the situation in India. He had also participated in the Cripps mission. On
14th June, 1945, he placed a new solution before the Indian leaders which is
popularly known as the Wavell Plan. The main pressure behind this move on
the part of the British Government was that exerted by the United States of
America.
Though the European war had come to an end by the beginning of 1945, there
were no signs of an early termination of the war in Asia. The Government of
United States of America realized that the defeat of Japan would not be possible
unless there was full co-operation of India. Therefore, they brought pressure on
the British Government. Besides, the Bengal Famine and the deaths of thousands
of people under famine conditions had contributed to the extreme deterioration
of the economic conditions in India. Further, the political factors in United
Kingdom also insisted on a fresh approach to the Indian political problem.
Following were the terms of the offer:
(i) With an idea to advance India towards her goal of self-Government, the

Viceroys Executive Council will be reconstituted in such a way that all its
members except the Viceroy and the Commander-in-Chief would be Indian
Political Leaders.
(ii) The portfolio of the External Affairs (except for Frontier and Tribunal
matters) would be placed under the charge of an Indian Member of the
Council.
(iii) The Council would have a balanced representation of main communities
including equal proportions of Muslims and caste Hindus.
(iv) The Executive Council would be a sort of an interim National Government
and the Governor-General would use his veto power reasonably.
(v) A British High Commissioner would be appointed in India as in other
Dominions to look after British commercial and other interests.

(vi) The proposal would not prejudice or prejudge the essential form of the
future permanent constitution or Constitution of India which must be
framed by the Indians themselves.
(vii) The interference of the Secretary of the State for India would be reduced to
the minimum and was to be exercised only in the interests of India.
(viii) It was hoped that if the Indian leaders accepted the plan section 93 would
be scraped in the provinces and normal constitutional Governments would be
re-established. That would make the holding of General Elections in India
easier.
6. The Simla Conference
To create a proper atmosphere for the discussion of plan, all political leaders in
the prison were released. The conference was to be held at Simla on 29, 1945, to
which political leaders representing various shades of opinion were invited to
attend.
The Conference began in a very encouraging and a hopeful atmosphere. The
Congress was mostly in favour of accepting the plan. Though the representation
given to the Hindus was disproportionally small, the Congress which was out for
an immediate solution of the political problem of the country accepted the
unequal representation to Hindus. However, it wanted to nominate 1 Muslim, 1
Parsi, 1 Christian, and 2 Hindus for the 5 places allotted to it. But, Mr. Jinnah was
very adamant, claiming that the Muslim League was the sole representative of
Muslims. He objected to a Muslim number being nominated by the Congress to
the Viceroys Executive Council. Obviously, the Indian National Congress which
was a national body could not accept to be reduced into the position of the
representative of a communal group. Though, Lord Wavell could realize the
unreasonable plan of the League; yet, he did nothing to persuade it to change its
attitude. In effect, the neutral attitude of the Governor-General helped the League
to sabotage the Wavell Plan. Consequently, the plan failed.
The only outcome of the Conference was that Jinnahs attitude towards the
question of National independence was fully revealed and the British
Governments lack of sincerity also became evident. The release of the leaders
infused a new life in the masses. This revised enthusiasm had its own impact. The
abortive trial of the Indian National Army and the Naval Mutiny which followed
during the winter of 1945-46 had their own repercussions, expediting to the
movement of events in India.
On 1st August, 1945, Lord Wavell convened the Conference of the Provincial
Governors to take stock of the political situation in the country. Soon after,
General elections to the Central and the Provincial Legislatures were announced.

In the meanwhile, in the United Kingdom, the labour party had become
victorious in the general elections. Consequently, there was further assurance
from Lord Wavell that the British Government was determined to do its utmost to
promote the early realization of self-government in India. After much discussion,
the Congress Party decided to contest the elections. The Congress secured almost
all general and a few Muslim seats. Mr. Attlee, the Labour Prime Minister, issued
a statement, after the study of elections result in India. In that statement he
clearly admitted Indias right to self-determination. Consequently, a mission of
the cabinet comprising of high-ranking Cabinet Ministers was sent to India.

7. The Cabinet Mission Scheme

The Mission reached Delhi on March 24, 1946. Prolonged discussion took place
between the members of the Mission and the leaders of the Congress and the
Muslim League. However, the two main parties could not come to any mutual
understanding. The result was that the members of the Mission had to put
forward their own formula for solving the Constitutional problem. The formula
was embodied in the joint statement issued by the Cabinet Mission and Lord
Wavell on May 19, 1946.
After pointing out the impracticability of the Pakistan scheme, the statement of
May 16 recommended that the new constitution of India should take the
following basic form:1) There should be an Union of India, embracing both British India and the
States which should deal with the following subjects: Foreign Affairs,
Defense, and Communications; and should have the power necessary to
raise the finances required for the above subjects.
2) The Union should have an Executive and a Legislature constituted from
British India and States representatives. Any question raising a major
communal issue in the Legislature should require for its decision a
majority of the representatives present and voting of each of two major
communities as well as a majority of all the members present and voting.
3) All subjects other than the Union subjects and all residuary powers should
vest in the provinces.

4) The States will retain all subjects and powers other than those ceded to the
Union.
5) Provinces should be free to form Groups with executives and legislatures,
and each group could determine the Provincial subjects to be taken in
common.
6) The constitution of the Union and the Groups should contain a provision
whereby any province could, by a majority of vote of its Legislative
Assembly, call for a reconsideration of terms of the constitution after an
initial period of 10 years and 10 yearly intervals thereafter.
As regards the constitution-making machinery, it was provided that the
Legislative Assemblies of provinces would elect the members of that body
on the basis of one representative for one million of the population. The
Sikh and the Muslim legislators were to elect the quota of their
communities determined on the population basis. Others were to elect the
representatives for the rest of the population. The representatives of the
population were to divide themselves into 3 sections: A,B and C. Section C
was to consist of the representatives of Bengal and Assam, Section B of the
Punjab, Sind and North-West frontier Province and Section A of the rest of
the provinces of India. The Sections shall proceed to settle the Provincial
Constitution for the provinces included in each section, and shall also
decide whether any Group Constitution shall be set up for these provinces
and, if so, with what Provincial Subjects the Groups shall deal. The
representatives of the Sections of the Indian States were then to reassemble and settle the Union constitution.
(a) Merits
The Cabinet Mission Scheme had both its merits and demerits.
(1) Its greatest merit was that the Constituent Assembly was to be
constituted on the democratic principle of population strength. The
principle of weightage discarded altogether.
(2)
The democratic method
of the decision of issue by simple majority was adopted in the case
of communal issues. However, safeguards were provided for
minorities.
(3)
The
Proposals
also
provided for an India Union of provinces and States, and rejected
the attempt made by the British Statesmen to save the country from
division and disaster. Some of the anomalies of the Scheme were
also due to the desire of the members of the Cabinet Mission to save
India unity at any cost.

(4)
The scheme required
that all the members of the Constituent Assembly were to be
Indians. Neither the British Government nor the non-official
European in India were to be given any representation in the
Constituent Assembly. The European members of the Provincial
Assemblies were to be absent themselves from voting.
(5)It was subsequently provided that there was to be no interference
with the work of the Constituent Assembly either by the British
Government or by its officials in India. Within the frame work of
the Scheme the Constituent Assembly was to be its own master.
(b) Demerits
Notwithstanding the above merits, the proposal of the Cabinet Mission
was not free from defects. The defects could be summed up as follows:
The first defect of the proposal was that it ignored the interests of minorities
other than Muslims.
Secondly, the proposals were not clear regarding the grouping of the
provinces. The lack of clarity was fully made use of by all the political parties
in India. The Muslim League contended that the grouping of provinces was
compulsory and it was a pre-condition for the working of the proposals,
while the Congress claimed that such grouping was optional. However, the
British Government interpreted the proposals in favour of the Muslim
League and clarified that the grouping of provinces was compulsory under
the proposals.
Thirdly, the order to which the Union and the sectional assemblies were to
meet and draft the constitution was not proper. It was provided in the
proposal that the provinces and the Groups were to form their constitutions
first and then the Constitution of the Centre was to be framed. This would
have obviously led to several practical difficulties.
After the publication of the proposals, the Muslim League passed a
Resolution on June, 1946 accepting the Scheme in its entirety. On the other
hand, the Working Committee of the Indian National Congress accepted the
Scheme partially. The Congress accepted only that part of the proposals
which dealt with the Constitution making of the country. It rejected the
proposal for the Interim Government. This Resolution was dully ratified by
the All India Congress Committee. The Sikhs rejected this scheme
completely, being opposed to the compulsory grouping of the provinces.
Consequently, the proposal regarding the Interim Government was declared

postponed. Jinnah was enraged at this decision and gave a call for direct
action by the Muslims. The day on which the direct action was taken
recourse to, there were unprecedented Hindu Muslim riots in Calcutta
which resulted in large scale loss of life and property.
However, Lord Wavell invited Pandit Jawaharlal Nehru, the then President
of Congress, to form the Interim Government. It was formed on September
2, 1946. The Muslim League refused to participate in the Interim
Government. The Interim Government consisted of the following members:
Pandit Nehru, Sardar Patel, Dr. Rajendra Prasad, Mr. Rajgopalachariar,
Dr.John Matthai, Sardar Baldev Singh, Sir Shafat Ahmed Khan, Mr.
Jagjivan Ram, Sayeed Ali Zaheer, Mr. Bhabha, Mr. Asaf Ali and Mr. Sarat
Chandra Bose. Subsequently, the Muslim League decided to join the Interim
Government and on October, 15, 5 members of the Muslim League were
included in the Government. This Government remained in Office till the
partition of India in August 1947.
8. Constituent Assembly
Election to the Constituent Assembly took place in July 1946, and the
Constituent Assembly met for the first time in New Delhi on December 9,
1946. The Muslim League refused to participate in its deliberations. Dr.
Rajendraprasad was elected its president. The Objectives Resolution was
passed on January 22, 1947.
9. Attlees Statement
Mr. Attlee, the Prime Minister of England made a declaration on 20 th
February, 1947. The declaration made it clear that His Majestys
Government was desirous of handling over their responsibilities to
authorities established by a Constitution approved by all parties in India.
But unfortunately, as there was no clear prospect that such a Constitution
and such authorities would emerge and as then existing state of uncertainty
was fraught with danger and could not be indefinitely prolonged, His
Majestys Government wished to make it clear that it was their definite
intention to take necessary steps to effect the transfer of power to
responsible Indian hands by a date not later than June 1948. The
declaration further added that His Majestys Government would have to
consider to whom the powers of the Central Government in British India
should be handed over on due date, whether as a whole to some form of
Central Government of British India or in some areas to existing Provincial
Governments or in such other way as may seem most reasonable and in the
best interests of the Indian people.

It was also announced that Lord Mountbatten was to succeed Lord Wavell
as the Viceroy of India. It was stated that Lord Mountbatten was to be
entrusted with the task of transferring to Indian hands the responsibility for
the Government of British India in a manner that would best ensure the
future happiness and prosperity of India, Lord Mountbatten reached India
on March 24, 1947, and make a declaration that he would complete the work
of transfer of power into Indian hands within the next few months. After
holding consultations with the Indian leaders, he visited London in May to
discuss the matter with the British Government.
The situation in India was very acute. The Muslim League was carrying on
an intensive programme of agitation which resulted in communal violence
and chaos in India. Jinnah declared that the Muslim League will not yield
an inch in its demand in Pakistan.
10. The Mountbatten Plan
In the circumstances mentioned above, the Mountbatten plan was
published on June 3, 1947. After emphasizing the matter of agreement
amongst the Indian Parties and the Intention of the British Government of
not attempting to frame any ultimate Constitution of India, the plan laid
down the following procedure:
The primary purpose of the procedure was to ascertain the intention of the
people of different areas on the issue whether the Constitution was to be
framed in the existing Constituent Assembly or in a new and separate
Constituent Assembly consisting of the representatives of the areas. To
ascertain such intention the procedure prescribed as follows:
1) The Provincial Legislative Assemblies of Bengal and Punjab were to
meet in two parts, one representing the Muslim majority districts and
the other, the rest of the provinces;
2) The members of the two parts were empowered to vote on the
question whether or not the provinces were to be partitioned. If a
simple majority of either part decided in favour of partition, partition
would take place;
3) The Legislative Assembly of Sind was to take its own decision at
special meeting;
4) In case of North Western Frontier Province a referendum was to be
held;
5) The Muslim majority district of Sylhet was to decide by a referendum
whether it would join East Bengal or remain in Assam.

That the policy provided for the creation of a Boundary Commission

to settle the details of the boundary in case partition was decided
upon. The plan was accepted by the Muslim League on June 9, 1947,
and by the All India Congress Committee on June 15, 1947. It was
decided that Bengal and Punjab were to be partitioned. West Bengal
and East Bengal were to join as a new Constituent Assembly. Sind
and North Western Frontier Province as well as Sylhet decided to join
Pakistan. Two Boundary Commission were set up for the division of
Punjab and Bengal. The Indian Independence Act was passed by the
British Parliament on June 18, 1947.
11. The Indian Independence Act, 1947
The object of this Act was to give effect to the June 3 plan of Lord
Mountbatten. It merely legalized what had already been promised to the
people of India.
(1) The Act provided for the partition of India and the establishment of
two Dominions of India and Pakistan from the appointed day (15 th
August 1947). The Act also provided for the legislative supremacy of
two Dominions.
(2) The Legislatures of the two Dominions were given full power to make
laws having extra territorial jurisdiction.
(3) The British Government was to have no control over the affairs of the
Dominions, provinces or any part of the Dominions after 15 th August,
1947.
(4) Until a new Constitution was framed for each dominion, the Act
made the existing Constituent Assemblies the Dominion Legislatures
for the time being. The Assemblies were to exercise all power which
were formerly exercised by the Central Legislature, in addition to its
power regarding the framing of a new constitution.
(5) Pending the framing of a new constitution, each of the Dominions
and all the provinces were to be governed in accordance with the
Government of India Act, 1935. Each Dominion was authorized to
make modifications in the Government of India Act, 1935 under the
Independence Act.
(6) The paramountcy over the Princely States was not transferred to
either of the Dominions. It stood lapsed, consequently, native States
became independent.
(7) The Governor-General was given the power to modify or adapt the
Government of India Act, 1935 a might be considered necessary till

31st March 1948. After that day it was open to the Constituent
Assembly to modify or adapt the same Act.
It may be noted that the Indian Independence Act of 1947 made
provisions for the partition of India, creation of 2 sovereign
Dominions. Thus legislators of the Dominions were given full powers
to make laws even having extra territorial jurisdiction. The
Dominions in no way were controlled by the British Government in
respect of their affairs. Though until the new Constitution was
framed for each of the Dominions, the Indian Independence Act of
1947 made the existing Constituent Assemblies the Dominion
Legislatures for the time being. These assemblies could exercise the
legislative powers exercised by the Central Legislature and they had
also the power to frame a new constitution. Thus the Indian
Independence Act of 1947 paved the way for framing a new
constitution.
12. The Constitution
After the passing of the Indian Independence Act, 1947, the Constituent
Assembly could continue its work without any interference from the
Muslim League. The Constituent Assembly set up a Drafting Committee
under the chairmanship of Dr. B R Ambedkar. Shri B N Rao was the
Constitutional Advisor of the Committee and the Committee consisted of
M. Gopalswami Ayyanger Alladi Krishnaswami Iyer, K.M. Munshi, T.T.
Kishanmachari, Mohamed Sadullah, N. Madhav Rao and D.P.Khaitan. The
Draft prepared by the Committee was fully discussed both in the country
and the Constituent Assembly. The Constitution was finally adopted on
November 26, 1947 and came into effect on January 26, 1950.

CHAPTER VI
THE INDIAN STATES
SYNOPSIS
1) The position before the Act of 1858
2) The position after the Act of 1858
1. The position before the Act of 1858
With the gradual expansion of the political power of the East India
Company over various regions of India, the Princely States also occupied a
position of the subordination to Companys regime. The relation between
East India Company and the Princely States was rather peculiar. To a
certain extent, the Princely states had independence. But they were not
sovereign powers. Therefore, there could not be any true relation between
the Companys regime and the several States. The independence that the
Princely States enjoyed was mostly one tolerated by the Company in
regard to the internal administration of the States. Though East India
Company did not very often intervene in the internal administration of the
Princely States yet, it could so intervene if necessary for purpose of
securing the carrying out of financial obligations or to maintain order. The
relation was capricious. The Resident who represented the Companys
administration in the Native States was like an over lord.
2. The position after the Act of 1858
With the Crown assuming the political power over India there was
considerable change in the relation between the British Government and
the Princely States. The British administration realized that the Native
Princes could of considerable help to the administration; as such Princes
could be supporters of the British Regime and also great impediments in
the political strivings of the people. The proclamation of Queen Victoria
made it clear that the Crown respected the rights, dignity and honour of
the Native Princes as if they were that of the Crown. The GovernorGeneral came also to be designated as Viceroy. Soon the Political
Department with its hierarchy of Residents and Political Agents to exercise
control over the Princely States came into being. Thereafter, the relation
between the Crown and the Princely States came to be known as
Paramountcy. Paramountcy had the following characteristics:
a. It was the product of an evolutionary process based on treaties,
engagements and Sanads supplemented by the usage and
sufferance and also political practice.

b. The States had no existence in the eye of the international law.

Therefore, these States could neither declare war nor, make peace
with the foreign states. The paramount power represented the
States in their international affairs. In brief, for all international
purposes, the Princely States were considered to be part of the
Indian Empire.
c. The Princes i.e, the Head of the Native States were granted position
and administration not sovereignty. His position was conditional on
his remaining faithful in allegiance and subordination to the Crown.
Each succession was to be recognized by the Governor-General-inCouncil. The military forces of the State could not exceed the limit
fixed by the Governor-General-In-Council. The power of the native
Princes was also to be exercised in subordination to the interests of
the British Government.
d. In matters of defence, the exclusive responsibility was that of the
British Government. The paramount power was committed to
defend both British India and the Indian States. It was also a
responsibility of the paramount power to protect the Native States
against internal rebellion and insurrection.
e. The paramount power could also intervene in the internal affairs of
the States in certain circumstances.
With the demand for responsible government there also developed a demand
for certain amount of independence in the Native States. After the First World
War, a deliberative, consultative and advisory body known as the Chamber of
Princes was brought into existence by a Royal Proclamation. The Viceroy was
the President of the Chamber. The Chamber became a respectable body of a
large number of Princes. In 1927, the Princes demanded a thorough
investigation of the various aspects of the relation between the Princely States
and the Paramount Power. Consequently, the Butler Committee was
appointed. The main outcome of the Committee was that it recommended that
the rulers should not be handed over power without prior agreement to an
Indian Government in British India responsible to an Indian Legislature. From
this time onwards the British Government began to treat the Princes as one of
the important political elements in the country. Therefore, whenever, measure
of political reform was to be considered the interests of the Princes and the
interests of the minorities were always important questions. It also said that it
was a part of British diplomacy to play one against the other and thereby
postpone the establishment of responsible government in India. In the First
Round Table Conference, the Princes gave their support to the Proposal of All
India Federation. It has been also seen how participation by the Princes was

made a pre-condition for the establishment of the Federation under the

Government of India Act, 1935.
The stand of the Princes during the discussions with the Cabinet
Mission had been aptly summarized by Dr. Pylee as follows:
a) Paramountcy should not be transferred to a successor
Government but should lapse.
b) The states should not be forced to join any Union or Unions
created as a result of transfer of Power in British India.
c) Prima facie there should be no objection to the formation of
confederation of States if the Rulers so desired.
d) There should be no interference in their internal affairs by British
India
e) Adequate safeguards should be made for the continuance of the
existing arrangements in the economic and financial fields during
the interim period in order to avoid a sudden breakdown of these
arrangements consequent upon the transfer of power in British
India.
Under the Indian Independence Act, 1947, the two Dominions of India and
Pakistan were created but the paramountcy of the British Government over the
Princely states was not transferred to either of these Dominions. As a result,
these States became independent. It was the skill, firmness and sagacity of
Sardar Patel which was responsible for the Native States to accede to the
Indian Dominion. The Native States so acceded by signing the instrument of
accession. This process was a process of peaceful change except in case of 1 or
2 states.
Events had moved fast in the months following the acceptance of the
Mountbatten plan. The Viceroy, Lord Mountbatten, had advised and urged the
Rulers of the States to enter into relations with one or the other Dominion
depending on the contiguity of their territory as well as the communal
character of their subjects.
Sardar Patel requested the Rulers to accede to the Indian Dominion with
respect to 3 subjects: external affairs, defence and communications without
any financial obligations. He also requested the Rulers to execute standstill
agreements covering all subjects of common interest. The instrument of
accession and standstill agreements were signed by almost all the States
except, Junagadh, Hyderabad and Jammu and Kashmir.

There was a powerful popular upsurge in Junagadh. The Nawab of Junagadh

fled to Pakistan. Administration of Junagadh was taken over by Government of
India in 1947.
There was a serious deterioration in law and order position in Hyderabad. In
September 1948 there was a police action. Consequently Nizam of Hyderabad
acceded to India.
Jammu and Kashmir acceded to the Indian Union in the face of armed raiders
from Pakistan and the frontier.
Thus, within a short period of two years, all the States contiguous to the
territory of the Indian Dominion were united to form the Union of India under
the new Constitution.