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Dr.

Ram Manohar Lohiya National Law University Lucknow

2019

Final Draft On

“GOVERNMENT OF INDIA ACT 1935”

Submitted to: Submitted by:

Dr. C.M Jariwala Shalini

Professor, Dean(Academics) Section- B

RMLNLU Enroll no.:121

Semester VIIIth


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Acknowledgement.

We take this opportunity to express our profound gratitude and deep regards to our
guide Dr. C.M Jariwala (Dean) sir for her exemplary guidance, monitoring and constant
encouragement throughout the course of this project. The blessing, help and guidance
given by her time to time shall carry a long way in the journey of life on which we are
about to embark.


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Index
1. Background to the Act
2. Introduction
3. Some features of the act
4. Objectives of the British Government
5. Defects of the establishment of federal court

6. Defects: British Political Needs vs. Indian Constitutional


Needs

7. Criticisms

8. Bibliography


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Background to the Act
 Indians had increasingly been demanding a greater role in the government of their country
since the late 19th century. The Indian contribution to the British war effort during the First
World War meant that even the more conservative elements in the British political
establishment felt the necessity of constitutional change, resulting in the Government of India
Act 1919. That Act introduced a novel system of government known as provincial "dyarchy",
i.e., certain areas of government (such as education) were placed in the hands of ministers
responsible to the provincial even for those areas over which they had gained nominal control,
the "purse strings" were still in the hands of British officialdom.
 The intention had been that a review of India's constitutional arrangements and those
princely states that were willing to accede to it. However, division between Congress and
Muslim representatives proved to be a major factor in preventing agreement as to much of the
important detail of how federation would work in practice.
 Against this practice, the new Conservative-dominated National Government
in London decided to go ahead with drafting its own proposals (the white paper). A joint
parliamentary select committee, chaired by Lord Linlithgow, reviewed the white paper
proposals at great length. On the basis of this white paper, the Government of India Bill was
framed. At the committee stage and later, to appease the diehards, the "safeguards" were
strengthened, and indirect elections were reinstated for the Central Legislative Assembly (the
central legislature's lower house). The bill duly passed into law in August 1935.
 As a result of this process, although the Government of India Act 1935 was intended
to go some way towards meeting Indian demands, both the detail of the bill and the lack of
Indian involvement in drafting its contents meant that the Act met with a lukewarm response
at best in India, while still proving too radical for a significant element in Britain.

Introduction
In 1927, the British government appointed the Simon commission to study the working of
dyarchy in the provinces and make proposals for further constitutional changes. The
commission visited India and studied the implementation of the act of 1919. In its report,
the Simon commission recommended to abolish dyarchy to introduce provincial


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autonomy to provide safeguards to minorities and to have a federal form of government
at the centre.

Ramsay Macdonald convened the round table conference at London to evolve the
solution for the constitutional problem. Mahatma Gandhi attended the second round table
conference in 1931. After the third round table conference, the British government
published the “white paper”, outlining the new scheme of reforms. Afterwards a joint
select committee of parliament was set up to draft a bill which later took form of
government of India act 1935. Sir Samuel Hoare was the secretary for state of India at
that time.

The bill was introduced in the House of Commons on 5th February 1935. It was
introduced in the House of Lords on 6th June 1935. The bill received the royal assent on
2nd August 1935 as government of India act 1935.This act had 321 sections and 10
schedules, it divided the subjects in three lists i.e. the federal legislative list, the
provisional legislative list, and the concurrent list. This act dealt with: (a) All India
Federation; (b) Provincial Autonomy; (c) Dyarchy at the centre, and (d) a Federal Court.

 All India Federation: In this All India Federation the British India provinces, the
chief commissioners of provinces and those Indian states which might accede to
be united were included. The federation consisted of 11 provinces, 6 chief
commissioners and other states.
The accession to the federation was voluntary.
 This act ended the system of dyarchy introduced by government of India act
1919, and provided for the establishment of ‘ Federation of India’, to be made
up of both British India and some or all of the ‘ princely states.‘
 This act introduced the direct elections for the first time & increased franchise from 7
million to 35 million people.
 The partial reorganisation of provinces included separation of Sind from Bombay,
splitting Bihar and Orissa into different provinces, complete separation of Burma
from India, detachment of Aden from India and establishing as a separate colony.
However, the degree of autonomy introduced at provincial level was subject to
important limitations: the provincial governors retained important reserves power, and
the British authorities also retained a right to suspend responsible government. The
act proposed that federation of India could come into existence only if as many
princely states were entitled to one half of the state seats in upper house of the federal
legislature.
 The parts of the act intended to establish the federation of India never came into
operation, due to opposition from the rulers of princely states. The remaining parts of
the act came into existence in 1937, when the first election under act also held. The
proposed federal polity was to have a bicameral legislature at the centre.

Upper house: The upper house was called Council of States and it consisted of 260
members. Out of 260 members 156 were to represent the provinces and 104 state natives.

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Out of 156 which were representing the provinces 150 were to be elected on communal basis.
Seats reserved for Hindus, Muslims, Sikhs, were to be filled by direct elections and seats
reserved for Indian Christians, Anglo Indians and Europeans was to be filled by indirect
elections of electoral college consisting of their representing members.

 Lower house: The lower house was to be called the Federal Assembly. It consisted of
375 members out of whom 250 represent provinces and 125 represent the princely
states. The term of assembly was 5 years but it could be dissolved earlier also.

Provincial autonomy: The provincial part of the Act, which went into effect
automatically, basically followed the recommendations of the Simon Commission.
Provincial dyarchy was abolished; that is, all provincial portfolios were to be placed in
charge of ministers enjoying the support of the provincial legislatures. The British-
appointed provincial governors, who were responsible to the British Government via the
Viceroy and Secretary of State for India, were to accept the recommendations of the
ministers unless, in their view, they negatively affected his areas of statutory “special
responsibilities” such as the prevention of any grave menace to the peace or tranquillity
of a province and the safeguarding of the legitimate interests of minorities. In the event of
political breakdown, the governor, under the supervision of the Viceroy, could take over
total control of the provincial government. This, in fact, allowed the governors a more

untrammelled control than any British official had enjoyed in the history of the Raj. After the
resignation of the congress provincial ministries in 1939, the governors did directly rule
the ex-Congress provinces throughout the war.

 It was generally recognized, that the provincial part of the Act, conferred a great deal of
power and patronage on provincial politicians as long as both British officials and Indian
politicians played by the rules. However, the paternalistic threat of the intervention by the
British governor rankled.
 Dyarchy at the centre: The Government of India Act, 1935 introduced the system of
Dyarchy at the centre, provided for the division of the federal subjects into two, the
reserved side and the transferred side, to be administered by the governor-general_
assisted by the executive councillors and by the governor-general with ‘the aid and
advice’ of the council of ministers, respectively. Their strength was not to exceed 10.
 Federal court: the federal court was established which began its functioning from
October 1, 1937. The Chief Justice of the federal court was Sir Maurice Gwyer. It
consisted of one chief justice and not more than 6 judges.


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Some features of the act.

 No preamble: the ambiguity of British commitment to dominion status.

While it had become uncommon for British Acts of Parliament to


contain a preamble, the absence of one from the Government of India Act 1935 contrasts
sharply with the 1919 Act, which set out the broad philosophy of that Act's aims in
relation to Indian political development.

Indian demands were by now centering on British India achieving constitutional parity
with the existing Dominions such as Canada and Australia, which would have meant
complete autonomy within the British Commonwealth. A significant element in British
political circles doubted that Indians were capable of running their country on this basis,
and saw Dominion status as something that might, perhaps, be aimed for after a long
period of gradual constitutional development, with sufficient "safeguards".

This tension between and within Indian and British views resulted in the clumsy
compromise of the 1935 Act having no preamble of its own, but keeping in place the
1919 Act's preamble even while repealing the remainder of that Act. Unsurprisingly, this
was seen in India as yet more mixed messages from the British, suggesting at best a
lukewarm attitude and at worst suggesting a "minimum necessary" approach towards
satisfying Indian desires.


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 No Bill of Rights
In contrast with most modern constitutions, but in common with Commonwealth
constitutional legislation of the time, the Act does not include a "bill of rights" within the
new system that it aimed to establish. However, in the case of the proposed Federation of
India there was a further complication in incorporating such a set of rights, as the new
entity would have included nominally sovereign (and generally autocratic) princely
states.

A different approach was considered by some, though, as the draft outline constitution in
the Nehru Report included such a bill of rights.

 Safeguards
The Act was not only extremely detailed, but it was riddled with ‘safeguards’ designed to
enable the British Government to intervene whenever it saw the need in order to maintain
British responsibilities and interests. To achieve this, in the face of a gradually increasing
Indianization of the institutions of the Government of India, the Act concentrated the
decision for the use and the actual administration of the safeguards in the hands of the
British-appointed Viceroy and provincial governors who were subject to the control of
the Secretary of State for India.

 Reality of responsible government Under the Act


A close reading of the Act reveals that the British Government equipped itself with the
legal instruments to take back total control at any time they considered this to be
desirable. However, doing so without good reason would totally sink their credibility
with groups in India whose support the act was aimed at securing.

 The governor general remained the head of the central administration and enjoyed wide
powers concerning administration, legislation and finance.
 No finance bill could be placed in the central legislature without the consent of governor
general.
 The reserve bank of India was established.
 The composition of the provincial legislature varied from province to province.
Bicameral Legislature were established in Assam, Bengal, Bihar, Bombay, Madras and
U.P.


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Objectives of the British Government
 The federal part of the Act was designed to meet the aims of the Conservative Party.
Over the very long term, the Conservative leadership expected the Act to lead to a
nominally dominion status India, conservative in outlook, dominated by an alliance of
Hindu princes and right-wing Hindus which would be well disposed to place itself under
the guidance and protection of the United Kingdom. In the medium term, the Act was
expected to (in rough order of importance):
 Win the support of moderate nationalists since its formal aim was to lead eventually to
a Dominion of India which, as defined under the Statute of Westminster 1931 virtually
equalled independence;
 Retain British control of the Indian Army, Indian finances, and India’s foreign
relations for another generation;
 Win Muslim support by conceding most of Jinnah's Fourteen Points
 Convince the Princes to join the Federation by giving the Princes conditions for entry
never likely to be equaled. It was expected that enough would join to allow the
establishment of the Federation. The terms offered to the Princes included:
 Each Prince would select his state’s representative in the Federal Legislature. There
would be no pressure for Princes to democratize their administrations or allow elections
for state representatives in the Federal Legislature.
 The Princes would enjoy heavy weightage. The Princely States represented about a
quarter of the population of India and produced well under a quarter of its wealth. Under
the Act:


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 The Upper House of the Federal Legislature, the Council of State, would consist of 260
members: 156 (60%) elected from the British India and 104 (40%) nominated by the
rulers of the princely states.
 The Lower House, the Federal Assembly, would consist of 375 members: 250 (67%)
elected by the Legislative Assemblies of the British Indian provinces; 125 (33%)
nominated by the rulers of the princely states.
 Ensuring that the Congress could never rule alone or gain enough seats to bring down the
government
 This was done by over-representing the Princes, by giving every possible minority the
right to separately vote for candidates belonging to their respective communities, and by
making the executive theoretically, but not practically, removable by the legislature.

The Working of the Act


The British government sent out Lord Linlithgow as the new viceroy with the remit of
bringing the Act into effect. Linlithgow was intelligent, extremely hard working, honest,
serious and determined to make a success out of the Act. However, he was also
unimaginative, stolid, legalistic and found it very difficult to "get on terms" with people
outside his immediate circle.
In 1937, after the holding of provincial elections, Provincial Autonomy commenced.
From that point until the declaration of war in 1939, Linlithgow tirelessly tried to get
enough of the Princes to accede to launch the Federation. In this he received only the
weakest backing from the Home Government and in the end the Princes rejected the
Federation en masse. In September 1939, Linlithgow simply declared that India was at
war with Germany. Though Linlithgow's behaviour was constitutionally correct it was
also offensive to much of Indian opinion that the Viceroy had not consulted the elected
representatives of the Indian people before taking such a momentous decision. This led
directly to the resignation of the Congress provincial ministries.
From 1939, Linlithgow concentrated on supporting the war effort.

Defects of the establishment of Federal Court

 Very limited jurisdiction


 Appeals were even allowed to privy council
 Only a restricted category of cases in which a question of
constitutional law was involved was forwarded to Federal court.
 The courts were not authorized to enforce its own decisions directly but with the aid
of civil and judicial authorities throughout the federation.

 No appeals were allowed without the certificate from British and state high courts.


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Defects: British Political Needs vs. Indian Constitutional Needs

 The Bill, like most modern Bills, contains no Preamble.


 Dyarchy at the Centre
 Option for the states
 Privileged position for the states
 Communal award
 Discretionary powers
 Mistrust of Indians
 No Bill of Rights
 The federal part of the Act was never introduced due to strong opposition from the
princely state rulers.
 The Act denied Indians the right to draft, or modify, their own constitution.

Criticisms
 Many criticisms have been levelled by many writers and leaders against the act of
1935. According to Pandit Nehru the new constitution was a machine with strong
brakes and no engine.
According to Sir R.K Shanmugan Chettiar,” it is indeed a far cry between the
Government of India act and Dominion Status.
 C.Rajagopalchariya says that,” the new constitution was worse than dyarchy.”
 The Indians were not given control over government of their country. It was
not liked by the Indians.


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 The Indians protested against the system of indirect elections of the federal
assembly.
 The dyarchical form of government of the centre was hated by Indians.
 Another defect of the act was that the Indians were not given the absolute
control over defence.
 The seats given in the legislature on the basis of community have been
criticised by many writers.
 According to Fazal-ul-haq, the premier of Bengal under the act of 1935 there
was to be neither Hindu raj nor Muslim raj but the British raj.
 The ruler of the Indian states criticised the federal scheme on the ground that it
did not give them any power or authority to leave the federation if once they
joined it.
 The discretionary powers of the governors reduced provincial autonomy to a
farce.
 Finally it is obvious that the powers of the provincial legislature were very much restricted.
At the same time the upper chambers were deliberately made reactionary bodies.

Reactions of Indians: As already stated earlier the new constitution could not
attract the Indians. Like almost all the Indian political parties the Muslim League also did not
show favourable reaction to the new constitution but they accepted the prevailing circumstances.


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Bibliography

1. http://en.wikipedia.org/wiki/Government_of_India_Act_1
935(last visited on 27th September, 8:00 p.m.)

2. http://www.studylecturenotes.com/social-sciences/law/454-the-government-of-india-
act-1935-a-detailed-lecture(last visited on 26th September, 4:00p.m.)

3. http://www.scribd.com/doc/33263645/The-Government-of-India-Act-1935-A-
Detailed-Study(last visited on 24th September, 6:30 p. m.)

4.M.P. Jain, Constitutional History of India, Wadhwa and Corg. New Delhi, 2006

5.Bipan Chandra, India’s struggle for Independence, Penguin Books, New Delhi, 2001.


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