Kalinga University

Faculty of Law
Course: LLB Sem- 1st
Subject: Legal and Constitutional History
Subject code: LLB101

Unit 4

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-in-Council
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.

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 19 th
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-General’s 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.

INDIAN COUNCILS ACT 1909

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.

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.

Government of India Act, 1919

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 Minto-Morley
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 follow 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.

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 co-operated. 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 Viceroy’s
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 Majesty’s 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 Montague-Chlemsford Report was
prepared. The Government of India Act, 1919 was based on this report.

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 Governor’s 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.

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 Governor-
General-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.

1. 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 Governor’s provinces was split into two parts, Reserved and
Transferred subjects. The Reserved subjects were to be dealt with by the Governor-in-
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-in-
Council 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 Governor’s 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.

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 five-sevenths
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.
(b) Powers of the Central Legislature:

(i) Legislative Powers

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

- 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.

(ii) 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.

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.

Montague’s 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.

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.

GOVERNMENT OF INDIA ACT 1935

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 Muslim’s
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 Jinnah’s 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) Jinnah’s 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 Irwins’s 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 précised 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.

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 Governor-General
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.

The Units of the Federation under the Government India Act, 1935.

The contemplated federation was to have the following units:-

(a) Governor’s Provinces,

(b) Chief Commissioner’s 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.

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.

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 discretion-

The 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 King’s
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.

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.

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 Majesty’s 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.

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-General’s or Governor’s

Act or any Ordinances promulgated in his discretion by the Governor-General 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.

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.

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.

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.

 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.
 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
Governor-General 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.
 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.

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
Assemblies—Lower 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 Government’s 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.

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-General’s 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 Governor’s 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 Majesty’s 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.

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.