October 2, 2022

Constitutional Development by British

Constitutional Development by British: a Glimpse of Government of India acts (1919 and 1935)

Introduction

The Indian Councils Act of 1909 did not generate the principle of responsible Government in India. Due to outbreak of the First World War and the contribution made by the Indians to it, And the pressure generated by the Home Rule Movement and Revolutionary movement, the Indians had to be given more rights in the form of Diarchy enunciated by the Act of 1919. The reforms were not only shadowy but also positively vicious. The system of communal Representation on the basis of separate electorate alienated the Muslim from the stream of National life and made them rank communalists. The executive did not surrender or share its arbitrary powers with the legislature which at best were transformed into debating clubs.

At the outbreak of war in 1914, the British Government affirmed that it was entering the war to make world safe for democracy. The Indians took the promise on its face value and extended wholehearted support to the war efforts of the Government. Sri Tilak and Mrs. Annie Besant began to demand Home rule. The Muslim League sank its differences with the Congress and formulated a joint scheme known as Congress League Scheme.

At last Mr. Montagu, the Secretary of State for India, made a declaration on behalf of the British Government in 1917 and said that the British policy in India would thenceforth be directed towards securing the association of Indians in every branch of administration of progressive realisation of responsible government in India. In pursuance of this policy the Parliament
passed an Act in 1919 entitled Government of India Act, 1919.

But after the failure of the Act of 1919 also due to various reasons as has been discussed below, The Government of Lord Willingdon look recourse to extremely repressive measures to suppress the spirit of the Indian nationalists that were arisen and increasing in the due course. Hundreds of peasants in the U.P and many Congressmen, including Jawaharlal Nehru, Sherwani and Purushottamdas Tandon was imprisoned. In Bengal, thousands of people were arrested and detained on flimsy grounds without any trial.

Gandhiji protested against these illegal measures and the region of terror, in a telegram to the Viceroy. But the Private Secretary of the Viceroy justified the Government measures. Gandhiji then sought an interview with Willingdon and declared that he would launch a Civil  Disobedience Movement if no satisfactory reply was given by the Viceroy. The Viceroy refused to grant the interview under the threat of Civil Disobedience.

To control the worst situation of the anger and protest among the natives of the India, the British enacted four new ordinances, namely, the Emergency Powers Ordinance, Unlawful Instigation Ordinance, Unlawful Association Ordinance and Prevention of Molestation and Boycott Ordinance which were issued on 4th January, 1932 and were aimed at ruthlessly suppressing the Indian people. Government took extremely severe measures to crush the movement even before it was launched. Congress offices and Ashrams were taken possession of and the police took resource to lathi-charges to disperse the crowds assembled to execute the programme of Civil Disobedience Movement. The repressive measures of the Government could not prevent the Civil Disobedience Movement. Thousands of people organised meetings and demonstrations.

The Third Round Table Conference took place in London, while Mahatma Gandhi was organising a massive civil disobedience movement in India, after returning from the Second Round Table Conference. The discussion at the Third Round Table Conference resulted in a White Paper in 1934 containing proposals incorporated in a Bill and presented to the Parliament for passage which later came to be known as the Government of India Act of 1935 and was passed by the British Parliament.

Government of India Act, 1919

Mr. Montage in consultation with the Viceroy, Mr. Chelmsford, and a committee of four members formulated a report known as Mantford Reforms in 1918. On the basis of it, a bill was introduced in British Parliament and passed in 1919 which received royal ascent on December 23, 1919.

Key Features of the Act of 1919

The main and the key features of the Government of India Act, 1919 are stated below as:

The Preamble to the Act

There were several important features of the Preamble which are listed as follows:

  • India was to remain an integral part of the British Empire.
  • Suggestion of decentralisation of authority without loosening the supreme hold of the Central Government.
  • The time and manner of gradual advance towards the distant goal of responsible government was to be decided not by the Indians but the British Parliament which was an outside authority.
  • It proposed the conferment of partial responsibility in the Provinces and the largest measure of independence in their sphere.

In short, The Government of India was to remain responsible to the British Parliament but in order to seek the co-operation of the people, the size of the Central Legislature was to be enlarged. The Preamble thus made no change in the character of the Central Government or the Home Administration of Indian Affairs. The Congress leaders who were anxious to get the right of self-determination at the earliest and a specified date resented the doctrine of discretion of the British Parliament.

Home Government

The Act allowed the Secretary of State of India to act as the agent of the British Government to superintend, direct and control all acts, operations and concerns which related to the Government or revenues of India. Under the new Act his salary was made a charge of British revenues which previously was used to be paid out of Indian revenues. One good effect of this measure was that the Parliament got the opportunity to criticise him at the time of annual appropriations.

Governor-General and the body of Executive Council

The Diarchy was introduced only in the Provinces. The Government of India remained responsible to the Secretary of State for India and the British Parliament. The Government at the Centre remained autocracy as before but the Indians were given more opportunities of influencing the Government.

The Act of 1919 did not introduce any fundamental change in composition and powers of the Central Executive Council and the unrestricted and despotic powers of the GovernmentGeneral were left untouched. The superintendence, direction and control of entire administration both civil and military-remained vested in him. He constituted the whole of the
Executive. He was at dominating position in the Executive Council because:

  • His unique position in India due to the Representative of the Crown.
  • He had a powerful say in the appointment and promotion of his Councillors.
  • He use to distribute work among the Councillors and made rules and regulations regarding conduct of work.
  • He wasn’t bound to act on the advice of his Council.
  • His office was deemed to be the most responsible and distinguished office.
  • He was appointed by the Crown on the recommendation of the British Prime Minister for a period of 5 years.
  • He discharged his onerous duties with the help of his Executive and Legislativ Councils.
  • Since he was individually responsible to British Parliament for the good governance of India, he was armed with extensive discretionary powers.

The new Act empowered the Governor-General to have direct control over the External Affairs Department and the Political Department. He was called Viceroy when he had his dealings with his native States on behalf of the Crown. He maintained Residents in every State to keep him duly informed about the affairs of the State.

Some steps were taken to give effect to the policy of increasing association of Indians in every branch of administration including:

  • Making of advocates of Indian High Courts of not less than ten years standing eligible for appointment as Law Minister in the Executive Council.
  • The inclusion of three Indians in the six-Member Council of the Governor-General.

However, these weren’t proved fruitful as only relatively unimportant departments were entrusted to Indian Councillors and the Executive remained as usual free from the inquest and control of the Legislature. Since the Councillors knew that the Legislature could not remove them even by a vote of censure, they cared little for the interests of the people at large. The expansion of the Executive Council simply enabled the Governor General to add few more Indian “yes-man” to his council.

Special Powers of the Governor-General and Defective Organisation of the Central Legislature

The composition of the Legislature was very much defective as there was no question to the responsibilities of the Government owned to the general citizens of India. The GovernorGeneral had the last word on any bill or resolution passed by the Legislature in case a no confidence motion against the Government or a censure motion against a member of Executive

Council and it didn’t mean that the Executive should resign and seek fresh verdict of the people. The Central Legislature was not a sovereign law-making body. At every step it was subject to the overriding authority of the Governor-General who constituted the real ruler of the land.

The unlimited powers of the Governor General in the legislative sphere include as follows

  • He use to summon and prorogue the Legislature, dissolved the Legislative Assembly and also extended its life under special circumstances.
  • He also possessed the power to prevent the consideration of a Bill or a part thereof if in his opinion it affected peace and tranquillity of the country.
  • He could disallow a question in the Legislature.
  • He could also address either or both the Houses as and when he pleased.
  • No bill passed by the Legislature could become an Act unless assented to by the Governor-General who could even withhold his assent or return the same with his suggestion for reconsideration of the House.
  • He was also empowered to disallow an adjournment motion or debate on any resolution.
  • He was authorised to reserve any Bill duly passed by both the Houses for the consideration of the Crown. He possessed law-making power also.
  • He could enact a law which he considered essential for the safety and tranquillity of the Empire even if the Legislature had refused to pass it.
  • He was also empowered to promulgate ordinances in case of emergency while the Legislature was not in session. The life of such an ordinance was normally six months unless extended for six months again.
  • He had the final say in the preparation of annual budget.
  • He was empowered to restore any grant refused or reduced by the legislature if in his opinion the demand was essential for the discharge of his responsibilities.

In short the Governor-General under the new Act was most dominating and unique in all spheres. The Britishers who drafted the Act of 1919 intended that the structure of the Legislature should be such as might not necessitate the use of special powers by the GovernorGeneral. Their aim was to constitutionalise the autocratic rule of the Governor-General. The Act by restricting the powers of both the Houses made them extremely weak and ineffective. It denied the right of vote to the women and encouraged communal representation in order to create divisions in the Legislature. The only redeeming feature of the Act was that the members of the Legislature got the opportunity to criticise the Government and draw public attention to the failing of Executive. Sometimes this criticism persuaded the Government to accept the suggestions of the Legislature so far as it did not conflict with the British interest.

The diarchal system

A. Division at the Provincial Level

It reoriented the Provincial Set-up into the introducing diarchy. For the first time under the British rule, the Indian Provinces under the Act of 1919 obtained the semblance of a responsible government. The Provincial Governments acted as the agents of the Central Government. There was no rigid or clear-cut division of powers. The new Act had done the following changes in this regard:

  • It clearly defined the subject to be dealt with by the centre and the provinces.
  • The provincial subjects were divided into reserved and transferred.
  • The Reserved subjects were administered by the Governor of each province with the help of his Executive council whose members had no responsibility towards the Legislative Council.
  • The Reserved subjects included Police, Land Revenue Administration, Justice, Irrigation & Canals, Famine Relief, Control of Newspapers, Borrowing, Forests, etc.
  • The Transferred subjects were administered by the Governor with the help of Indian Ministers who were responsible to the Legislature.
  • The Transferred subjects included those departments which afford most opportunity for local knowledge and social service, those in which Indian have shown themselves to be keenly interested, those in which mistakes that may occur, though serious, would not be irremediable and those which stand most in need of development. It therefore included subjects such as Local Self-government, Public Health, Sanitation and Medical Administration, Education, Public Works including roads, bridges and tramways, fisheries, excise, technical education and agriculture, etc.

B. Division between the Centre and the Provinces

The underlying principles of the division of subjects between the Centre and Provisions are stated as follows:

  • The matters which were of All-India interest and in regard to which uniformity in legislation was necessary for the whole of India, were regarded as Central subjects. The Central list contained 47 subjects, chief among them being Defence, Foreign and Political Relations, Patents and Copyright, Currency and Coinage, Communications, Commerce and Shipping, Excise duties on cotton, salt, Income-tax and Public Debt in India.
  • The subjects which were chiefly of local importance and interest were treated as Provincial subjects. The Provincial list contained 50 subjects including Local SelfGovernment, Public Health and Sanitation and Medical Administration, Education, Public Works, Water Supplies and Irrigation, Famine Relief, Forest, Co-operative Societies, Law and Order etc.
  • It contained a provision that, if the Governor-General-in-Council declared any Central Subjects as a Provincial interest, then the Provincial legislature would be empowered to make laws pertaining to that subject.
  • The Act suggested the Central control in matters of legislation on transferred subjects on the Provincial list to be restricted in future within the narrowest possible limit and so the Central Government interfered very rarely.
  • The scope of powers of superintendence, direction and control vested in the GovernorGeneral-in-Council over the Provincial maters was also greatly reduced.
  • The Central hold on the financial matters of Provinces was also relaxed. The Provinces were assigned separate specified sources of income. The Act gave them some independence of action on financial matters like levying and collecting new taxes.

C. Demerits

The Provincial Legislatures were not absolutely free to legislate even on Provincial subjects. The Governor-General continued to enjoy a set of overriding powers. In spite of the division of powers no federal Government was set up at the Centre. Essentially the Centre continued to
have a unitary government. The residuary powers were given to the Centre Government. In case of a controversy whether a particular subject was a central or a Provincial subject, the Governor opinion was held final and irrevocable. But, it can be said that, the Act of 1919 although did not confer full autonomy on the Provinces, certainly took the first step in that direction.

Governor and Ministers

The Act provided for the appointment of Ministers to help the Governor in dealing with the transferred subjects. The provisions with this regard are stated below as:

  • The limit on the numbers of ministers were fixed as for Bombay, Calcutta and Madras it was three Ministers each while the remaining Governor to hold office during his pleasure, from among the non-official members of the local legislature.
  • If a person at the time of his appointment did not happen to be a member of the Legislature of that Province, he could not hold ministerial office for more than six months.
  • The legislature could also punish a defaulting Minister by proposing a reduction in his salary.
  • The legislature was empowered to secure the Minister’s resignation by expressing its lack of confidence in him.
  • The Governor was empowered to remove a Minister without assigning a reason, no less was the legislature empowered to do the same.
  • It was clearly stated in the Act that, in relation to the transferred subjects, the Governors shall be guided by the advice of his Ministers, unless he sees sufficient cause to dissent from their opinion, in which case he may require action to be taken otherwise in accordance with the advice.

The general responsibilities whether created by the Act or otherwise, the Instrument of Instructions charged the Governor with the responsibility were as follows-

  • To see that measures were taken for maintaining safety and tranquillity in all parts, of a province and for preventing occasions of religious and racial conflicts, and all orders issued by the Secretary of State or the Governor-General-in-Council were complied with.
  • To provide for the advancement and social welfare of small and backward communities
  • which could not fully rely for their protection upon joint political action.
  • To safeguard members of the Civil Services employed in the Provinces in the legitimate exercise of their functions and the enjoyment of all recognised rights and privileges.
  • To see that no order of the Government or Act of the Legislative Council should deprive any of the diverse interest of or arising from race, religion, education, social conditions, wealth or any other circumstances of the privileges and advantages that they had heretofore enjoyed or exclude them from the enjoyment of benefits which hereafter might be conferred on the people at large
  • To prevent the establishment of a trade monopoly or any unfair discrimination in matters affecting commercial or industrial interests.

In reality the intervention of the Governor was not confined only to the extraordinary circumstances but also to other ordinary circumstances. So in practice the Ministers were far from being the real masters of their department. They were not free agents. They had to submit to the wishes of the Governor who could even ignore the advice of a Minister and act in his
discretion if he considered it necessary in the interest of minorities, the depressed classes, public services or for maintaining peace and tranquillity in the Province.

Financial Control

It was a reserve subject. Finance being the key department, was largely controlled by the Governor. The Budget was prepared strictly under the supervision of the Governor. For the allocation of funds of the Councillors and the Minstrels. However, in cases of difference, he was given the power to make allocations of revenue and balances while binding on both.

The Governor was also given the power to restore any demand for grant relating to a reserved subject, reduced or rejected by the legislature, by certifying that the amount was essential for good administration of the department. In case of transferred subjects the Governor was not given any power of restoring or sanctioning a grant reduced or rejected by the legislature. However, in case of emergency he could authorise such expenditure as might be necessary for the peace and tranquillity of the Province or for the carrying on of any department.

Criticisms of the Act of 1919

The Act of 1919 was passed gave a rude shock to the Indians who were clamouring for ‘selfgovernment’ embodying the “right of self-determination”. The Act received universal condemnation except from the Moderates and Anglo Indians. Mrs. Besant, an Extremist of those times, wrote in her book, ‘New India’ that the scheme was ‘ ungenerous for England to offer and unworthy for India to accept”. Some of the Defects are listed below as:

  • Central Executive a Yes-men body of the Governor-General
  • Limited authority of the Central Legislature and narrow franchise
  • Division of subjects between the Centre and the Provinces Defective
  • Dyarchical experiment a failure

Government of India Act, 1935

The 1935 Act was the second instalment of constitutional reforms passed by British Parliament for implementing the ideal of responsible government in India. The Act of 1935 envisaged a federal form of government and as such was a radical departure from its predecessors. It granted provinces to the Centre. The Act of 1935 was quite a lengthy and detailed document. It consisted of 321 sections and 10 schedules. It was fully enforced in April 1937. The Act was largely disappointing because it did not hold out assurance about granting Dominion Status, not did it consider sympathetically the feelings and urges of politically conscious Indian. It
perpetuated the sovereignty of the British Parliament over India and had nothing regarding the fundamental rights of the people.

Key Features of the Act of 1935

The most important features of the Act can be stated as follows:

Autonomy of the Provinces

The Provinces enjoyed the Independence in the following way-

  • The Provinces for the first time got a measure of democratic government.
  • The system of diarchy with the division into the transferred and reserved units was dismantled away.
  • All the subjects were transferred to the charge of Ministers.
  • The Ministers were not absolutely free in matter of running their departments.
  • The hold of the Centre over the provincial subjects was also considerably reduced.
  • The Governors continued to possess a set of overriding powers although such powers were not exercised very often.
  • As in the case of Federation, the executive power of the Province was vested in and exercised by the Governor on behalf of the Crown. He was to discharge his functions with the help of a Council of Ministers.
  • As in the case of Federation, the executive power of the Province was vested in and exercised by the Governor on behalf of the Crown. He was to discharge his functions with the help of a Council of Ministers.
  • The Ministers for their actions and policies were made responsible to the Provincial Legislature.
  • Provision for the establishment of a High Court and provincial service cadre in each Province.

However, there were some restrictions imposed on the Autonomy of the Provinces which can be stated as follows:

  • Externally, the Governor-General could interfere in the administration of the Province to the extent of seeing that didn’t threaten the peace and the tranquillity of India.
  • Internally, Governor’s powers of discretion and individual judgement meant a drastic cut in the powers of Ministers.
  • For example, In case of grave emergency, the Governor-General under Section 102 could issue a Proclamation of Emergency and empower the Federal Legislature to make laws on Provincial subjects.
  • He could also direct any Governor to act as his agent in the Province in respect of Defence, Foreign Affairs, Ecclesiastical Affairs or Tribal Areas.
  • The Provincial executive authority was to be exercised in such a manner as not to interfere with federal authority.
  • Whenever the Governor of a Province acted in his discretion or individual judgement, he was responsible to the Governor-General.
  • Governor could return a Bill to the legislature for reconsideration on the line suggested by him.
  • He could withhold his assent or reserve a Bill for the consideration of the GovernorGeneral and the King.

In short it could be said that, His position was modelled exactly on that of the GovernorGeneral. The loud claim of autonomy proved a mere bluff and farce because the Governor instead of acting as constitutional head acted as a real ruler. No sphere of Provincial administration was free from his influence. His legislative powers were also fairly extensive.Thus the Provincial Autonomy was introduced with heavy restrictions and sfeguards. It could grow and work only at that extent which was allowed by the Governor. The discretionary powers of the Governor were not clearly defined and they were so wide and overwhelming that the Governors could interfere in the day-to-day working of the Ministers on the pretext of their
discretionary powers.

All India Federation

The Act provided for an All-India Federation comprising the British Indian Provinces and the Indian States in the following way:

  • The constituent units of the Federation were 11 Provinces, 6 Chief- Commissioner’s provinces and all those states which agreed to join it.
  • The States were absolutely free to join or not to join the proposed Federation.
  • At the time of joining it, the ruler of that State was required to sign an Instrument of Accession, mentioning therein the extent to which it consented to surrender its authority to the Federal Government.
  • The ruler was, however, authorised to extend the scope of Federal authority in respect of his State by executing another Instrument.
  • Every unit enjoyed full autonomy in its internal affairs.
  • The Act also provided for the setting up of a Federal Court to settle disputes between the Federal Government and the Units.

Diarchy at Central Level

The Act of 1935 abolished diarchy at the Provincial level and introduced it at the Centre in the following way as:

  • The Federal subjects were divided into two categories the Reserved and Transferred.
  • The reserved list included Defence, External affairs, Ecclesiastical affairs and Tribal Areas.
  • These were to be administered by the Governor-General with the help of three councillors to be appointed by him.
  • For the administration of Transferred subjects the Governor-General was to appoint a Council of Ministers whose number could not exceed 10.
  • The Ministry was to consist of the persons who commanded the confidence of the legislature.
  • By a subsidiary Instrument of Instructions the Governor-General was also empowered to include in his Ministry the representatives of the Indian States as well as the minority communities.
  • The Ministry was collectively responsible to the Federal Legislature.
  • The Governor-General remained over all in charge of both the Reserved and Transferred subjects. He was also responsible for the co-ordination of work between the two wings and for encouraging joint deliberations between the councillors and the Ministers.

Reservations

The new Act elaborated the safeguards and protective armours for the minorities for the reason that the minorities needed protection from the dominance of the majority community. The Nationalists saw this provision as a trick to empower the Governor-General and the Governors to override the Ministers and legislators. In fact the safeguards amounted to vital reduction in the powers of the ministers.

Parliament and Legislature

The Act of 1935 was a rigid one and for maintain the Supremacy of the Parliament, it had given the stated provision as follows:

  • No Indian legislature whether Federal or provisional was authorised to modify or amend it.
  • The British Government alone was given the authority to make changes in it.
  • The Indian legislature could at the most pray for a constitutional change by submitting a resolution to the Majesty’s Government.
  • Nearly 10 percent of the total population got the right to vote.
  • The strength of the Council of State was increased to 260 and that of the Legislative Assembly to 375.
  • The Federal Legislature and six out of eleven Provincial legislature became bicameral.
  • Yet in order to weaken the growing spirit of nationalism, the Act of 1935 not only retained communal electorate but also enlarged its scope.
  • it granted this wholly concession to the Depressed Classes.
  • The Muslims got 33 1/3 percent of the seats in the Federal Legislature although their number was much less than one-third of the total population.
  • The workers and women got separate representation although they had not asked for it.

Some of the Restrictions in this regard include as follows:

  • Certain types of Bills and amendments could not be introduced in the provincial legislature without the previous sanction of the Governor General.
  • The Governor-General was also empowered withhold his assent to those Provincial Bills sent to him by the Governor for consideration.
  • He could also forward such Bills for the consideration of the Crown or return them to the Provinces for reconsideration.
  • He could direct any Minister to act in a way suggested by him.

Provision of the Federal Court

The Act also provided for the establishment of Federal Court to settle disputes arising among the units themselves and also between a unit and the Federal Government. One of the functions was to interpret the controversial clauses of the Act. It was however, not the final court of
appeal and in certain circumstances, the appeal could be made to the Privy Council. Some other provisions related to it are as stated below:

  • A person was considered eligible for appointment as a Judge if he has 5 years standing as a judge of High Court of any Province or 10 years standing as a barrister of England/Northern Island or 10 years standing as a High Court Pleader.
  • The Chief Justice was required to have been an advocate or barrister of at least 15 years standing.
  • Governor-General was authorised to appoint any federal Judge to act as Chief Justice in a temporary vacancy.
  • The Original Jurisdiction of the Federal Court extended to disputes arising out of the interpretation of any provision of the Constitution. The conditions were that the case brought before it must involve legal rights and secondly, the parties to the dispute must be the Government and not the individuals.
  • The Court’s appellate jurisdiction included hearing of petitions against the decision of High Courts. But it could allow an appeal only when it involved some constitutional right and the High Court also granted a certificate to the effect that it was a fit case for appeal to the Federal Court.
  • The functions of the Federal Court included advisory functions also. The GovernorGeneral could refer any point of law to the Court for information and legal guidance. Such an advice was given in the open court in the present of the lawyers of all the parties concerned.
  • As a Court of Record, The Federal Court held its sittings in Delhi. The account its proceedings was duly maintained and published. Its judgements and verdicts could also be referred to in lower courts.
  • Appeals from its judgement could be taken to the Judicial Committee of the Privy Council even without obtaining a certificate from it. Such appeals could be made only in cases which (I) involved interpretation of any provision of the Act of 1935 or any order-in-Council issued under it and where the court had heard the case under its original jurisdiction; (ii) related to extent of authority vested in the Federal Government by virtue of Instrument of Accession of the State; (iii) arose from the enforcement of a Federal Law in any of the federating states.

The Federal Court started functioning from 1st October, 1937. The record of its services, spread over a period of 13 years, was quite impressive and admirable. In 1950 when the new Constitution of free India came into force, it came to be known as Supreme Court of India. Its powers were also enlarged. The Federal court, as stated above, did excellent work for over a
dozen years. If defended vigorously the civil liberties of the people against the high handedness of the Executive during the Second World War.

Division of Subjects in forms of Lists

Under the Act of 1935, the subjects for administrative purpose were catalogued into three lists the Federal list, the Provincial list and the Concurrent list which are explained as follows:

  • The Federal list included 49 subjects, the Provincial list 54 and the Concurrent list 36.
  • The subjects which were of all-India interest and demanded uniform treatment were put in the Federal list. These subjects were Armed Forces, Currency and Coinage, Posts and Telegraphs, Railways, Central Services, External Affairs, Wireless, Customs etc.
  • Subjects of mainly of local interest were placed the Provincial list and were wholly within the jurisdiction of the Provincial Legislatures for the purpose of legislation. These subjects were Public Order, Education, Local Self-Government, Public Health, Land Revenue, Forests, Mining and Fisheries and others.
  • The third list known as the Concurrent list, and which contained 36 items, included subjects which were primarily Provincial interest but at the same time required uniformity of treatment all over the country.
  • The Act authorised both the Federal and Provincial Legislatures to pass laws on those subjects. In the event of a conflict, the Federal law was to prevail.

Preamble

No new thing was added in comparison to the Act of 1919, and the same was there as to appease the Indians that British Government still was committed to its promise of giving Dominion status to India.

India Council and its Abolition

The new Act abolished the India Council and stated as follows:

  • It provided for the appointment by the Secretary of State and his team of Advisers whose number was not to be less than 3 and nor more than 6.
  • With the introduction of Provincial autonomy the control of Secretary of State only remained intact over the discretionary powers of the Governor-General and the Governors and was diminished greatly over the Transferred subjects.

Criticisms of the Act of 1935

Every political party of India condemned the new draft for one reason or another. Mr. Jinnah, the leader of Muslim League, described it as thoroughly rotten fundamentally bad and totally unacceptable. C. Rajagopalchari stated that, “The new Constitution is worse than diarchy”. Pt. Malviya remarked that, “the new Act has been thrust upon us. It has a somewhat democratic appearance outwardly, but it is absolutely hollow from inside”. Pt. Nehru condemned it as saying that, “it is a new character of slavery. It was a sort of machines with strong brakes and not engine”. It was criticised on the following grounds.

  • Discretionary Powers of Governors and Governor-General
  • Defective Federation
  • Extension of Communal Electorate System
  • Safeguards
  • Refusal to Grant Right to Self-determination

Dr. Rajendra Prasad rightly remarked regarding the subject of Law and order. It was nothing short of a camouflage and fraud to declare that Law and Order had been transferred when special responsibility in respect of them was reserved with the Governor-General and the Governor in wide and all-pervasive terms”.

Conclusion:

Dr. Shyama Prasad Mukherjee, Minister of Finance, Government of Bengal, in his letter of resignation dated November 16, 1942 complained to the Governor against his constant interference in the sphere of Ministers. He stated his reason behind his resignation as, “The reason is connected with the manner, in my opinion unwarranted, in which you have interfered with the work of the Ministry and have rendered so-called Provincial Autonomy into a meaningless farce. I regret to say that from the very beginning of our association with you, you have failed to rise to that impartial height of a Provincial Governor which could have given you courage and foresight to respect the Constitution, establish new Conventions, and broaden the base of the Provincial administration so as to win the affection and confidence of the people.
You have all along permitted yourself to be guided by a section of permanent officials loyal diehards, according you; short-sighted and reactionary according to us resulting in the establishment of a Government which has proved disastrous to the interests of the Province”.
The dismissal of Allah Buksh, the Chief Minister of Sind, and forced resignation of Fazal-ulHaq, Chief Minister of Bengal when they enjoyed the support of the legislatures of their Provinces, proves the arbitrariness of the Governors. The Act was an ingenious blend of plus and minus, addition and subtraction, progress and regress. The hand that gave had taken away also. Thus it amounted to a sort of self-cancelling business with the net result of zero. Mr. Fazal-ul-Haq, Premier of Bengal, rightly observed when he proclaimed that under the Act, there was to be neither Hindu Raj nor Muslim Raj but the British Raj.


Author: Vaibhav Goyal,University Institute of Legal Studies, Panjab University Chandigarh
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