Introduction
- The Government of India Act 1935, passed in August 1935, was the longest British Act of Parliament up to that point.
- It also included the Government of Burma Act 1935.
Background to the Act
For that it was necessary to permanently weaken the movement.
- This could be achieved if the Congress was internally divided and large segments of it co-opted or integrated into the colonial constitutional and administrative structure.
The phase of suppression should, therefore, be followed, decided the colonial policy makers, by another phase of constitutional reforms.
- Congress
- Act of 1919
- British political establishment
- Montagu Chelmsford Reforms
- Government of India Act 1935
- Simon Commission
- Round Table Conference
- All Parties Conference
- Lothian Report
- Constitutional Reforms
- Provincial "dyarchy"
- Dominion Status
- Civil Disobedience movement
- British Parliament
- Joint Select Committee
- White Paper
- British India
- Indian States
Provisions of the Act
- The Government of India Act 1935 was a detailed document with 32 Sections, 14 Parts, and 10 Schedules, divided into 2 Major Parts.
- The Act's main features included provisions for an all-India Federation, responsible government with safeguards, and separate representation for communal and other groups.
- Provincial Part of the Act Introduced Provincial Autonomy by replacing dyarchy with responsible government in all departments.
- Governors were given wide discretionary powers over summoning legislatures, giving assent to bills, and administering tribal regions.
- Special powers for governors included safeguarding minority rights, civil servants' privileges, and British business interests.
- Governors could also take over and run a province's administration indefinitely under a special provision.
Political Executive:
- Governor's Role: The Governor, representing the crown, held executive authority in the provinces, similar to the Governor-General.
- Diarchy Abolished: Diarchy was eliminated in the provinces, with no Reserve Subjects or Executive Council.
- Council of Ministers: The Council of Ministers managed provincial subjects, except for specific areas like law and order, where the government had special responsibilities.
- Minister Selection: Ministers were chosen from elected members of the provincial legislature and were collectively responsible to it.
- Governor's Powers: The British-appointed Governor had significant powers, accepting ministerial recommendations unless they threatened special responsibilities like maintaining peace or protecting minority rights.
- Special Responsibilities: The Governor could act at his discretion in certain matters without consulting ministers, and his decisions were final regarding his capacity to act.
- Governor's Authority: The Governor had vast powers, including legislative authority and control over non-votable items, making up about 40% of the budget.
- Dismissal of Ministers: The Governor could dismiss ministers and assume control of the province if normal governance was not possible.
- Political Breakdown: In cases of political breakdown, the Governor, under the Viceroy's supervision, could take over provincial government, as seen after the Congress provincial ministries resigned in 1939.
- Provincial Ministers' Power: Provincial ministers under the 1935 Act had more power than their predecessors, with no reserved departments and greater authority in ministerial appointments.
- Collective Responsibility: The Governor was expected to encourage collective responsibility among ministers, though actual power dynamics varied based on factors like party strength and individual personalities.
- Power and Patronage: The Act granted significant power and patronage to provincial politicians, but the British Governor's potential intervention remained a contentious issue.
Provincial Legislature:
- The composition of the Provincial Legislature varied from province to province.
- In all Provincial Legislative Assemblies, all members were directly elected by the people.
- In six provinces (Madras, Bombay, Bengal, U.P., Bihar, and Assam), there was a bicameral Legislature consisting of a Legislative Council and a Legislative Assembly. In each of these Legislative Councils, a few seats were filled by the Governor through nomination.
- The electoral provisions were governed by the communal award of the British Government, as modified by the Poona Pact concerning the Scheduled Castes.
- Seats in the legislatures were divided among various communities and groups.
- There were separate constituencies for General, Muslim, European, Anglo-Indian, Indian Christian, and Sikh communities.
- All qualified electors who were not voters in a Muslim, European, Anglo-Indian, Indian Christian, or Sikh constituency were entitled to vote in a General constituency.
- Some General seats were reserved for the Scheduled Castes.
- There were also separate constituencies for Labour, Landholders, Commerce, and Industry.
Federal Part of the Act: All India Federation:
- The India Act 1935 proposed the establishment of an All Indian Federation comprising British Indian Provinces and Princely States.
- The constituent units of the Federation included 11 Governor’s provinces, 6 Chief Commissioner’s provinces, and all Indian states that agreed to join.
- States were free to decide whether to join the proposed Federation.
- Upon joining, the ruler of a state would execute an Instrument of Accession in favor of the Crown, overriding previous treaties with the British Crown.
- The terms for a state joining the Federation were outlined in the Instrument of Accession.
- Princes would select their state’s representative in the Federal Legislature without pressure to democratize their administrations.
- The Federation could not be established until a number of states, whose rulers could choose at least 50% of the 104 seats in the Council of State and whose aggregate population was at least 50% of the total population of all Indian States, had acceded to the Federation.
- Unlike the provincial portion of the Act, the Federal portion would go into effect only when half the states by weight agreed to federate.
- This did not happen due to opposition from the rulers of princely states, and the establishment of the Federation was postponed after the outbreak of the Second World War.
- The remaining parts of the Act came into force in 1937, when the first elections under the act were also held.
The Federal Executive:- Introduction of Dyarchy at the Centre:
- Dyarchy, which was rejected by the Simon Commission, was included in the Federal Executive by the Act of 1935.
- The Federal Subjects were divided into two categories:
- Reserved Subjects:
- These subjects were administered by the Governor-General on the advice of executive councilors (not exceeding three in number), appointed by him.
- Reserved subjects included Defence, External Affairs, Ecclesiastical Affairs, and the Administration of Tribal Areas.
- Transferred Subjects:
- Subjects other than Reserved subjects were Transferred subjects.
- Transferred subjects were administered by the Governor-General with the help of a Council of Ministers(not more than 10), chosen by him and responsible to the Federal Legislature.
- The Governor-General had special powers and responsibilities, allowing him to dominate the ministers and make decisions without their advice on certain subjects.
- The British Government, through the Secretary of State for India and the Governor-General(Viceroy), continued to control India’s financial obligations, defence, foreign affairs, and the British Indian Army.
- No finance bill could be placed in the Central Legislature without the consent of the Governor-General.
- At least 80 percent of federal expenditures, including funding for British responsibilities and foreign obligations, were non-votable and taken off the top before considering claims for social or economic development programs.
- The Viceroy, under the supervision of the Secretary of State for India, was given overriding and certifying powers, theoretically allowing him to rule autocratically.
Protection of Minorities:
- One important feature of the Act was the protection and safeguards for minorities.
- There was a concern that minorities needed protection from being dominated by the majority community.
- However, the provisions intended to safeguard minorities were seen as a way to give more power to the Governor-General and Governors, allowing them to bypass ministers and legislators.
The Federal Legislature
- The proposed federal legislature was a bicameral body comprising the Council of States(Upper House) and the Federal Assembly(Lower House).
Upper House (Council of States):
- A permanent body with one-third of its membership vacated and renewed every three years.
- It had 260 members total, with:
- 104 members representing native Indian states, nominated by the rulers of these states.
- 156 elected members from British India, representing provinces:
- Out of 156, 150 were elected on a communal basis.
- Seats for Hindus, Muslims, Sikhs were filled by direct elections.
- Seats for Indian Christians, Anglo-Indians, and Europeans were filled by an indirect method through an electoral college of their representatives.
Lower House (Federal Assembly):
- It had a 5-year term unless dissolved earlier by the Governor General.
- It consisted of 375 members, with 250 from British India and 125 from Indian States.
- Members from British India were indirectly elected, while members from Indian States were nominated by rulers.
- In the Upper House, members were elected directly, while in the Lower House, which was theoretically more popular, members were elected indirectly.
- Princes nominated one-third of representatives in the Lower House and two-fifths in the Upper House.
- The Federal Legislature could make laws for the whole or any part of British India or for any federate State, while Provincial Legislatures could make laws for their respective provinces.
Division of Federal Subjects:
- The scheme of federation and provincial autonomy required a clear division of subjects between the centre and the provinces.
- The 1919 Act division was revised, and the 1935 Act introduced three legislative lists:
- Federal Legislative List
- Provincial Legislative List
- Concurrent Legislative List
- Residual legislative powers were given to the Governor General, who decided the appropriate list for subjects at his discretion.
- The powers of the legislature were limited and restricted. Certain subjects were specifically excluded from the authority and jurisdiction of Federal and Provincial Legislatures.
- For example:
- laws affecting the British Sovereign or the Royal Family,
- matters concerning the Army Act, the Air Force Act,
- the Law of Prize Courts,
- Amendments to the 1935 Act were considered.
- Discriminatory legislation against British interests was prohibited.
- Legislation initiation required prior approval from the Governor General.
- Non-votable items in the Federal budget comprised about four-fifths of the total.
- Rejected budget items could be presented again by the Governor General.
- In case of disagreement, the Governor General could convene a joint sitting.
- The Governor General had the power to veto or return bills for reconsideration.
- The King in Council could disallow acts even after assent from the Governor General.
- Six out of eleven provinces were given a bicameral system of legislature.
- The Act increased the size of the legislature and expanded the franchise.
- Special seats were allocated to women in the legislature.
- Provincial assemblies included more elected Indian representatives.
- Indian representatives could now form majorities and governments.
The Federal Structure
The Role of the Governor General in the Government of India Act, 1935:
- Pivotal Role: The Governor General was central to the Constitution of India, providing unity and direction to its diverse elements.
- Modes of Action: The Governor General acted in three main ways:
- On Ministerial Advice: Generally, he acted on the advice of his Ministers.
- Individual Judgement: In matters of special responsibility, he could act on his own judgement, sometimes disregarding ministerial advice. His special responsibilities included:
- Financial Stability: Safeguarding India's financial stability and credit.
- Peace and Tranquility: Preventing any serious threat to the peace or tranquility of the country.
- Minority Interests: Protecting the legitimate interests of minorities, public servants, and their dependents.
- Commercial Discrimination: Preventing commercial discrimination against goods of British or Burmese origin.
- Rulers' Dignity: Safeguarding the interests and dignity of the rulers of Indian States.
- Discretionary Powers: Ensuring the due discharge of his own discretionary powers.
- Discretionary Matters: In certain matters, he acted without consulting his Ministers, including:
- Reserved Departments: Defence, External Affairs, Ecclesiastical Affairs, and Tribal Areas.
- Council of Ministers: Appointment and dismissal of the Council of Ministers.
- Ordinance Making: Making ordinances and enacting Governor General’s Acts.
- Control over Non-votable Items: Controlling non-votable items, which comprised 80% of the budget.
- Instructions to Governors: Issuing instructions to Governors regarding their special responsibilities.
- Legislative Powers: Summoning joint sittings of both Houses, addressing the Legislatures, and sending messages about certain bills.
- Sanctioning Bills: According sanction to certain types of bills in Federal and Provincial legislatures and withholding assent to bills.
- Limited Responsibility: Responsibility was introduced in a limited way at the Federal Centre by the Act of 1935. Other departments were administered by the Governor General with the aid and advice of the Council of Ministers, except in cases where he could exercise individual judgement.
- Ministerial Advice: In cases of individual judgement, the Governor General could disregard ministerial advice. He had the discretion to choose and summon Ministers, who would hold office at his pleasure.
Other provisions of the Act
1. Establishment of a Federal Court:
- The India Act 1935 called for the creation of a Federal Court with original and appellate powers to resolve inter-state disputes and constitutional interpretation issues.
- However, it was not the ultimate court of appeal, as certain cases could still be appealed to the Privy Council in England.
- Despite the Federation not being established, the Federal Court was set up to handle constitutional cases.
- The Federal Court started operating on October 1, 1937, under the leadership of Chief Justice Sir Maurice Gwyer.
- It was composed of one Chief Justice and a maximum of six judges.
2. Federal Railway Authority:
- The Government of India Act 1935 established the Federal Railway Authority, a new seven-member body responsible for railway control.
- This authority operated independently of ministers and councillors, aiming to reassure British railway stakeholders about the safety of their investments.
- Reserve Bank of India: Established during this period.
- Financial Control Shift: The act transferred financial control from London to New Delhi, addressing the long-standing demand for fiscal autonomy by the Government of India.
3. Expansion of Electorate:
- The electorate was expanded to 30 million, but high property qualifications limited enfranchisement to only 10 percent of the Indian population.
- In rural areas, voting rights were granted to wealthy and middle peasants, presumed to be key constituents for Congress politics.
- The act, as D.A. Low suggests, aimed to undermine Congress support and align these crucial classes with the Raj.
- The central legislature's bicameral structure included 30 to 40 percent of seats nominated by princes, effectively preventing a Congress majority.
4. Communal and Separate Electorate and Reservations:
- The separate electorate was established for Muslims, and reserved seats were allocated for Scheduled Castes (previously known as 'depressed classes' or untouchables) in both provincial and central legislatures.
- The Act not only maintained the separate electorate from the 1919 Act but also expanded its scope by including separate electorates for Anglo-Indians and Indo-Christians.
- Women were granted reservations in 41 seats in provincial legislatures and limited reservations in the central legislature, although the reservations for women were divided along religious lines.
5. Supremacy of the British Parliament:
- The Government Act of India 1935 upheld the supremacy of the British Parliament.
- No Indian legislature, whether federal or provincial, was permitted to modify or amend the constitution; this authority was reserved for the British Parliament alone.
6. Burma Separation from India:
- A significant aspect of the Act was the separation of Burma from India, effective April 1937.
- Aden was also transferred from the administrative control of the Government of India to the colonial offices, becoming a Crown colony.
7. Abolition of the Indian Council of the Secretary of State:
- The Government of India Act 1935 abolished the Council of the Secretary of State for India, established in 1858, replacing it with advisers.
- These advisers could be consulted at the discretion of the Secretary of State, except regarding Services matters.
- The Council was dissolved due to widespread agitation in India against its consistently anti-Indian policies.
- With the introduction of provincial autonomy and partial Responsible Government at the Centre, the Secretary of State's control over Transferred Subjects was significantly reduced.
- However, the Secretary of State retained control over the powers of the Governor-General and Governors, who were held strictly accountable for their actions taken in individual judgment or discretion.
8. Reorganization of Provinces and Creation of New Provinces:
- The Act led to a partial reorganization of provinces, including the separation of Sindh from Bombay and the division of Bihar and Orissa into separate provinces.
- As a result, two new provinces, Sindh and Orissa, were created, joining the North-West Frontier Province(NWFP) to form a total of 11 Governor provinces.
9. Rights and Obligations of the Crown in Respect of Indian States:
- The rights and obligations of the Crown concerning Indian States remained unchanged, apart from the control given to the Federation by the Instrument of Accession.
- These rights and obligations were overseen by the Crown Representative.
- The offices of Governor-General and Crown Representative were allowed to be combined.
10. Government of India Bill and Provincial Autonomy:
- The Government of India Bill received Royal assent in August 1935.
- The British Government decided to introduce Provincial autonomy on April 1, 1937, while leaving the Federation in abeyance, which never came into existence.
- The operative part of the Act of 1935 remained in force until August 15, 1947, when it was amended by the Independence of India Act, 1947.
Analysis of the Act
- The Government of India Act 1935 viewed the Indian government as a Crown government, with authorities deriving functions directly from the Crown, similar to Dominion constitutions, a concept absent in earlier Acts for India.
- Provincial autonomy under the 1935 Act proved beneficial, marking a significant point in India's constitutional development.
- The Act did not address the dominance status promised during the Civil Disobedience movement.
- Absence of a preamble reflected the British ambivalence towards dominion status. Unlike the 1919 Act, which outlined its aims in a preamble, the 1935 Act lacked this clarity.
- The 1919 Act’s preamble, based on Edwin Montagu’s 1917 pledge, aimed at gradual self-governance in India.
- By 1935, Indian aspirations focused on achieving constitutional parity with Dominions like Canada and Australia, implying complete autonomy within the British Commonwealth.
- British political circles were skeptical about India's capability for self-governance, viewing dominion status as a distant goal.
- The 1935 Act reflected a compromise between Indian and British perspectives, lacking its own preamble but retaining the 1919 Act’s preamble, conveying a mixed message from the British.
- Unlike modern constitutions, the 1935 Act did not include a “Bill of Rights” or “Fundamental Rights”, which were part of the draft outline constitution in the Nehru Report.
- The proposed Federation of India faced challenges in incorporating a set of rights due to the inclusion of nominally sovereign, autocratic princely states.
Safeguards:
- The Act was very detailed and included many ‘safeguards’ that allowed the British Government to intervene whenever it felt necessary to protect British responsibilities and interests.
- These safeguards were a significant reduction from the principle of self-government.
- In addition to the restrictions on law-making powers of the legislatures, the Governor-General and Governors were given the authority to override ministers and legislatures in certain situations.
- If a General believed there was a breakdown of the constitutional machinery, he could even take on absolute dictatorial powers.
Reality of Responsible Government Under the Act – Is the Cup Half-Full or Half-Empty?
- British Control: The Act allowed the British Government to regain full control whenever they deemed necessary.
- Credibility Issue: However, reclaiming control without valid reasons would damage their credibility with Indian groups they aimed to support.
- Lord Lothian's Perspective: Lord Lothian pointed out that while the constitution seemed to give power to the Governor-General and the Governor, ultimate authority rested with the King. He argued that once power was handed to the legislature, interference from the Governor or Governor-General would be unlikely.
Problems with Federation:
- Diverse Elements: The Federation scheme attempted to merge Indian States under autocratic Princes with British Indian Provinces enjoying some level of responsible government. This combination led to conflicts and inefficiencies.
- Illogical Process: The process for forming the Federation was flawed. Accession by States was voluntary, while it was compulsory for British Indian provinces.
- Preferential Treatment for Princes: To encourage Princes to join the Federation, they were given excessive representation through nomination. This was intended to make them counterbalancing forces against nationalists.
Dyarchy:
- Dyarchy was proposed at the Centre despite being condemned.
- Important departments like Defence and External Affairs were kept as Reserved.
- India's constitutional status as a dependency remained unchanged, with the British Parliament retaining powers of constitutional amendment and responsibility for Indian administration.
- The Secretary of State continued to control various All India Services.
- Separate representation of communal and other groups was considered inequitable and unreasonable.
False Equivalences:
- False Equivalences under the Act treated British citizens and companies in the UK the same as Indian citizens and companies, unless UK law denied reciprocal treatment.
- The unfairness of this arrangement was evident due to the dominant position of British capital in the Indian modern sector and the dominance maintained through unfair commercial practices.
- Detailed provisions required the Viceroy to intervene if any Indian law or regulation discriminated against UK resident British subjects, British registered companies, and British shipping interests.
- British Political Needs vs. Indian Constitutional Needs highlighted the ongoing dysfunction in the reform process.
- The Montagu statement of 1917 emphasized the need for the reform process to stay ahead of the curve to maintain British strategic initiative.
- Imperialist sentiment and a lack of realism in British political circles hindered this process.
- Conditional concessions of power in the Acts of 1919 and 1935 caused resentment and failed to gain the backing of influential groups in India.
- Montagu might have supported more liberal reforms, but his cabinet colleagues were not in favor, making the passing of a more liberal Bill than the 1935 Act impossible.
Relationship to a Dominion Constitution:
- In 1947, a few amendments to the Act made it the functioning interim constitutions of India and Pakistan.
- The Act of 1935 was widely criticized and rejected by almost all Indian groups, including the Congress.
- The Congress demanded the formation of a Constituent Assembly, elected by adult franchise, to draft a constitution for an independent India.
- Jawaharlal Nehru, then Congress President, recalled April 1, 1937, when the "unwanted, undemocratic, and anti-national" constitution of the Government of India Act, 1935, would be imposed against the nation's will.
- On another occasion, Pandit Nehru described the new constitution as "a machine with strong brakes but no engine."
Objectives of the British Government
- B.R. Tomlinson noted that the pace of constitutional progress in India was influenced by the need to involve Indian collaborators in the British administration.
- According to Tomlinson, the highest level of imperial control shifted from London to Delhi.
- Empowerment of the Viceroy: The Viceroy gained many powers previously held by the Secretary of State.
- This shift aimed to protect essential imperial interests while reshaping the Indo-British relationship.
- Federal Part of the Act: Designed to align with the Conservative Party's goals.
- The Conservatives envisioned that the Act would eventually lead to a dominion-status India, led by Hindu princes and right-wing Hindus, under British guidance.
- The Labour opposition criticized the Act as a means to safeguard British interests by sharing power with loyalist factions in India.
- The reforms aimed to restore the political standing of Liberals and moderates who favored constitutional methods, especially after their decline during the Civil Disobedience Movement.
- Given the harsh repression of the movement, many Congress members would be swayed towards constitutional politics over extra-legal means.
- The reforms were expected to create divisions within Congress, distinguishing between constitutionalists and non-constitutionalists, as well as between the Right and Left factions.
- Retention of British Control: Maintain British oversight of the Indian Army, Indian finances, and foreign relations for an extended period.
- Muslim Support: Gain Muslim backing by addressing most of Jinnah's Fourteen Points.
- Preventing Congress Dominance: Ensure that Congress could not govern alone or destabilize the government by over-representing Princes, granting minorities separate voting rights, and making the executive theoretically removable by the legislature.
Provincialization of the Congress:
- The British aimed to weaken the Congress party by granting Indian politicians significant power at the provincial level while keeping central authority firmly in British hands. This was expected to fragment Congress into provincial factions.
- Lord Linlithgow believed that provincial autonomy could diminish Congress's effectiveness as a unified national force.
- Despite the British efforts to divert Congress's focus to provincial matters, the Congress High Command maintained control over provincial ministries and demonstrated strong cohesion, even forcing resignations in 1939.
- The Government of India Act of 1935 aimed to entice Indian princes into joining a new federation but ultimately failed because the princes did not see the federation as beneficial.
- Lord Linlithgow stated that the Act was designed to keep India tied to the Empire.
Reasons Princes Did Not Join the Federation:
- The princes did not recognize that joining the federation was their best chance for the future.
- They objected to the issue of paramountcy, where the British government retained the right to intervene in their affairs.
- Lack of cohesion among the princes prevented them from acting as a unified group.
- Each prince was more focused on securing the best deal for his own state in terms of money and autonomy.
- Larger states were reluctant to give up fiscal autonomy, while smaller states were unhappy with their representation in the legislature.
- There was a fear of joining a democratic federal government dominated by elected leaders from British India, who might support democratic movements within the princely states.
- Congress was actively promoting democratic reforms in the princely states, which threatened the princes' autocratic rule.
- If the federation had been established, it could have led to Congress dominance through the election of states' representatives in the Federal Legislature.
- The British plan required the princely states to remain autocratic, which contradicted their official stance on the future of India.
Indian Reaction to the Proposed Federation:
- The proposed Federation was widely rejected and denounced by all significant groups in British India due to the minimal offerings and a deep-seated distrust of British intentions, which was well-founded.
- No major group in India accepted the Federal aspect of the Act, as key areas like external affairs, defense, and currency were effectively under the Governor-General's control.
- The Reserve Bank Bill included a constitutional reservation that prohibited substantial alterations to its provisions without the Governor-General's consent, indicating a lack of real power conferred to the Centre.
- Muslim leaders were primarily concerned about potential Hindu domination and perceived the federal structure as overly unitary.
- Muslims, being minorities in most provinces, opposed the idea of all representatives of British India being elected by provincial assemblies, favoring decentralization with a weak central government and greater autonomy for Muslim-majority provinces.
- The Congress Party also opposed the federal structure, particularly the allocation of one-third of seats in the federal assembly to princes, linking democratic India’s fate to autocratic rulers.
- Despite these criticisms, some Liberals and elements within the Congress were cautiously open to the idea of Federation.
- Notable figures like Birla and Gandhi showed a willingness to accept Federation, with Birla emphasizing the need for princes to move towards democratic elections.
- As a result, the provincial part of the 1935 Act was implemented with the elections of 1937. However, a stalemate at the center rendered the federal part of the Act inactive, as there was little interest in it.
The Working of the Act:
- The British government appointed Lord Linlithgow as the new Viceroy with the task of implementing the 1935 Act.
- Linlithgow was intelligent, hardworking, honest, and determined to succeed but struggled to connect with people outside his close circle.
- In 1937, after provincial elections, Provincial Autonomy began. Linlithgow worked tirelessly to persuade the Princes to join the Federation but received little support from the Home Government, leading to a mass rejection by the Princes.
- In September 1939, Linlithgow declared India was at war with Germany, a decision made without consulting Indian elected representatives, which offended much of Indian opinion and resulted in the resignation of Congress provincial ministries.
- From 1939 onwards, Linlithgow focused on supporting the war effort.