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AMITY LAW SCHOOL, NOIDA

CONSTITUTION OF INDIA

PROJECT ON THE GOVERNMENT OF INDIA ACT,

BY - Amaan Ahmed Khan

COURSE - BBA LL.B. (H)

SECTION - B

A

THE GOVERNMENT OF INDIA ACT, 1935

INTRODUCTION

The Government of India Act was passed by the British Government in the year 1935. It was one of the lengthiest Acts at that time as it contained 321 sections and 10 schedules. Once the act was passed the government saw that it was too lengthy to be regulated with efficiency and thus, the government decided to divide it into two parts for the act to function in a proper manner:

1. The Government of India Act, 1935
2. The Government of Burma Act, The act gave new dimensions to the affairs of the country by the development of an All India Federation, Provisional autonomy and the removal of the dyarchy. It was also the last constitution of British India, before the country was divided, in 1947, into two parts-India and Pakistan. The act was implemented and formed from the sources like the Simon Commission Report, the three roundtable conferences etc. which were earlier declined by the government. The Act proposed various amendments in context to the act earlier framed in the year 1919. HOW DID THE ACT COME INTO FORCE?  The Government Act of 1919, was not satisfactory at all and was too short in its provisions for the self-government form to be imposed in the country. The provisions of the act were not enough to fulfill the National Aspirations that the people of the country aspected. After which, a lot of discussions took place which also led to the Rowlatt Act in the same year. When the Simon Commission Report came out it was seen that the report was not satisfactory which would lead to the consultation with the then Indian Community Representatives at the Round Table conference, held in London.  The matter was important and was discussed in the round tables of 1930, 1931, and 1932 respectively.

WHAT IS THE IMPORTANCE OF THE ACT?

The act holds great importance in the Indian history and some points are stated below which define its importance:  The introduction of the act ended the dyarchy system by giving more freedom to british India for better governance in the form of Provincial Autonomy and established at dyarchy at the center,  There was a division of the federal Subjects between the Centre and the provinces, as the division made in the act of 1919 was revised,  This act is of utmost importance because it leads to the Relationship of a Dominion Status which urged the need for Independence again in the minds of the people,  The main provision of the act was to make the Governor General Pivot of the constitution to settle if there were any disputes among the people,  An important provision of the act was the protection of minorities such as women etc. and safeguarding their rights. WHAT ARE THE FEATURES OF THE ACT? The Salient Features of the act are as follows:

1. The most important feature of the act was that it introduced a dyarchy at the central level in the government,
2. The act mainly focused to fulfill the National Aspirations,
3. The act gave a measure to form a federal form of government and an all India Federation,
4. The act involved the making of a federal form of Government in India which is still prevalent in our Indian constitution by dividing the central and its units under 3 lists as- (Federal List, Provincial List, and Concurrent list)while the residuary powers were with the viceroy,
5. There was the separation of states which lead to the creation of two new states -Sindh and Orissa.

6. The act extended the Franchise by giving 10% voting rights to the public which was a great extension of rights to the people,
7. The act provided for the establishment of a federal court which was done in 1937.
8. The act abolished the Indian Council and made provision for the introduction of an advisory body in India,
9. The act re-organized certain provinces such as separating Burma from India,
10. To control the credit flow in the economy it leads to the establishment of the Reserve bank of India to control the currency in the country. WHY DID THE ACT FAIL? The act had so much to promise to the people for their welfare but was not able to deliver anything that could turn out in its implementation. The act was a complete failure and the main reasons why the act failed have been discussed below:  The concept of an All India Federation failed completely because the Indian National Congress never came for the accomplishment of the plan which was made because of the representation power of the princely states was still in the hands of the British so the concept could not be implemented.  The act failed to provide flexibility to the people at the constitutional level in regard to their amendments of rights as the power to change or alter any right was present with the British government while the Indians could not do anything according to their needs.  The act failed to provide a proper federal structure, majority of the power was with the governor general who was not at all responsible for the central legislature which meant that the legislature was not governed properly. DIFFERENCE BETWEEN THE GOVERNMENT ACT OF 1935 AND 1919: GOVERNMENT OF INDIA ACT 1935 GOVERNMENT OF INDIA ACT 1919 1)The act did not talk about the preamble. 1)The act provided for a preamble.

matter of running their departments. The Governors continued to possess a set of overriding powers although such powers were not exercised very often.

2. All India Federation The Act provided for an All-India Federation comprising the British Indian Provinces and the Indian States. The constituent units of the Federation were 11 Provinces, 6 Chief which agreed to join it. The States were absolutely free to join or not to join the proposed Federation2. At the time of joining it, the ruler of that State was required to sign an Instrument of Accession, mentioning therein the extent to which it consented to surrender its authority to the Federal Government. The ruler was, however, authorised to extend the scope of Federal authority in respect of his State by executing another Instrument. Every unit enjoyed full autonomy in its internal affairs. The Act also provided for the setting up of a Federal Court to settle disputes between the Federal Government and the Units.
3. Dyarchy at the Centre: The Act of 1935 abolished dyarchy at the Provincial level and introduced it at the Centre. The Federal subjects were divided into two categories the Reserved and Transferred. The reserved list included Defense, External affairs, Ecclesiastical affairs and Tribal Areas. These were to be administered by the Governor-General with the help of three councillors to be appointed by him. For the administration of Transferred subjects the Governor-General was to appoint a Council of Ministers whose number could not exceed 10. The Ministry was to consist of the persons who commanded the confidence of the legislature. By a subsidiary Instrument of Instructions the Governor-General was also empowered to include in his Ministry the representatives of the Indian States as well as the minority communities. The Ministry was collectively responsible to the Federal Legislature. The Governor-General remained over all incharge of both the Reserved and Transferred subjects3. He was also responsible for the co-ordination of work between the two wings and for encouraging joint deliberations between the councillors and the Ministers.
4. Safeguards and Reservations: Another distinctive trait of the new Act was the provision of elaborate safeguards and protective armours for the minorities. The reason given for it was that the minorities needed protection from the dominance of the majority community. The nationalists, however, saw no sense in this argument. They know that the so-called provisions in the Act relating to the safeguards were merely a trick to empower the Governor-General and the Governors to override the Ministers and legislators. In fact the safeguards amounted to vital reduction in the powers of the ministers.

5. Supremacy of the Parliament: The Act of 1935 was a rigid one. No Indian legislature whether Federal or provisional was authorised to modify or amend it. The British Government alone was given the authority to make changes in it. The Indian legislature could at the most pray for a constitutional change by submitting a resolution to constitution, it was an imposition on India by the British parliament.
6. Federal Court: The Act also provided for the establishment of Federal Court to settler disputes arising among the units themselves and also between a unit and the Federal Government. One of the functions was to interpret the controversial clauses of the Act. It was however, not the final court of appeal. In certain circumstances, the appeal could be made to the Privy Council.
7. Increase in the Size of Legislatures and Extension of Franchise: Another highlight of the Act was the extension of franchise. Nearly 10 percent of the total population got the right to vote. The Act not only retained communal electorate but also extended it. This was a calculated blow to the feeling of oneness in the country, the strength of the Council of State was increased to 260 and that of the Legislative Assembly to 375. The Federal Legislature and six out of eleven Provincial legislature became bicameral.
8. Division of Subject: Under the Act of 1935, the subjects for administrative purpose were catalogued into three lists the Federal list, the Provincial list and the Concurrent list. The Federal list included 49 subjects, the Provincial list 54 and the Concurrent list 36. The subjects which were of all-India interest and demanded uniform treatment were put in the Federal list. These subjects were Armed Forces, Currency and Coinage, Posts and Telegraphs, Railways, Central Services, External Affairs, Wireless, Customs etc4. Only the Federal Legislature could make laws on the Federal subjects. Subjects of mainly of local interest were placed the Provincial list and were wholly within the jurisdiction of the Provincial Legislatures for the purpose of legislation. These subjects were Public Order, Education, Local Self-Government, Public Health, Land Revenue, Forests, Mining and Fisheries and others. The third list known as the Concurrent list, and which contained 36 items, included subjects which were primarily Provincial interest but at the same time required uniformity of treatment all

12. Burma, Berar and Aden: Another important features of the new Constitution was the Burma was separated from India and Aden was surrendered to British Colonial Office. Berar, although it remained formally a part of Hyderabad State, was for administrative purposes, merged with the Central Provinces. CRITICISM OF THE GOVERNMENT OF INDIA ACT, 1935 however, felt otherwise. Even the impartial British statesmen like Mr. Atlee admitted that the new keynote of the Act was mistrust. It was disappointing for it did not even made mention of Dominion status. Every political party of India condemned the new draft for one reason or another. Mr. Jinnah, the leader of Muslim League, described it as thoroughly rotten fundamentally bad and totally unacceptable Act has been thrust upon us. It has a somewhat democratic appearance Act received with a chorus of condemnation from all sides. It was critised on the following grounds.
13. Discretionary Powers of Governors and Governor-General: The new Act armed the Governors and Governor-General with tremendous discretionary powers and thus reduced Provincial Autonomy to a farce. In a way the Act made the Governors so powerful that they could play the dictator if they liked. The only thing that can be said in favour of the Act is that it slightly enlarged the control of the Indian legislatures over financial matters but on the whole the final powers remained vested in the hands of Englishmen. The Governors and the Governor-General continued to have the last word in the preparation of budget and allocation of funds to various departments. The Act invested the Governors and Governor-General with a set of special responsibilities. These were in the nature of overriding powers. The Law portfolio was in the hands of a responsible Minister but prevention of any menace to the peace and tranquility in the Province came under the special responsibility of the Governor. The excess of special responsibilities was in fact a handy weapon to crush the revolutionary activities and Congress movements. Under this cover even the civil liberties could also be denied at camouflage and a fraud to declare that such and such subjects had been transferred when the responsibilities with regard to them were

reserved with the British. The wide powers vested in the Governor, Governor-General and also in the Crown and the Parliament negatived the very essence of the Provincial autonomy DEFECTIVE FEDERATION The proposed formation of the Federation was also fundamentally defective. Entry into the Federation was compulsory for the Provinces but voluntary for the Princely States. The Federation was thus going to be a jumble of dissimilar units. There was a world of difference in regard to population, area, political importance and status between the Provinces and the States. Whereas the British Provinces were partly autonomous units, the States were still under the autocratic rule of the Princes. Yoking together of such heterogeneous units under one federation was highly absurd. The second absurdity was that the States were to be represented in the Federal Legislature not by the elected representatives of the States but by the nominees of the native rulers. Thirdly, the wide range of powers vested in the Governor-General was a vital flaw in the proposed Federation. Such a thing is opposed to the spirit of a Federation.

3. Extension of Communal Electorate System: The Act of 1935 received a chorus of criticism for one or the other reason. It not only retained the system of Communal Electorate but also extended its application in the case of Harijans, labour and women. The sinister motive behind it was to separate the Harijans from the Hindu community and poison the political atmosphere with the evil of casteism and sectionalism.
4. Safeguards: The Act of 1935 armed the Governor-General and the Governor with far-reaching powers in the name of defending the minorities against the tyranny of the Hindus. The minorities naturally began to feel greatful to the rulers for the protection of their interests. They became their allies in arresting the growth of nationalism. The British diplomacy always used the Indian States, the minorities and the services as tools against the Congress.
5. Refusal to Grant Right to Self-determination: Another flaw in the Constitution was its refusal to grant the right of self determination to the Indians. The Indians had no say in making or amendment of a Constitution for themselves. The