Sunday, April 6, 2014

Government of INDIA ACT, 1935



The Government of India Act 1935 opened a. new era in Indian constitutional progress. The process of preparing this Act took eight years, beginning in November 1927 with the appointment of Simon Commission, continuing through the Round Table Conferences and a Joint Select Committee and concluding with a hard fought passage through Parliament against the, opposition of Churchil and his friends in the Conservative Party.. Considerable statecraft was employed in drafting the Act to satisfy the different aims and objectives of the parties concerned - British concerned with safeguarding their imperialist interests and the Indians with their desire for the transference of power in their hands. In the end, the substance of power was retained by the British and the appearance only was given away.

The Act was quite a lengthy and detailed document consisting of 321 sections and 10 schedules. It said nothing about the dominion status. It perpetuated the sovereignty of the British parliament over India. The principle of communal electorate was retained and enlarged in scope. The Act granted this concession to the Depressed Classes. The minorities were given weightage in representation, in the provinces where they were in a minority, except that the Hindu minorities in Punjab and Bengal were not treated equally favourably with the Muslims. The franchise was extended from 2. 8 percent to 11 percent of the population by lowering the property qualifications.

The Act provided for an all India federation comprising of the British Indian provinces and the Indian states. The constituent units of the federation were 11 provinces, 6 chief commissioner’s provinces and all those Princely States which agreed to join it. The States were free to join or not to join the proposed federation. In accordance with the principle of federation, the Act provided for the division of powers between the centre and the units. It provided a federal list consisting of 59 subjects, the provincial list consisting of 54 subjects and a concurrent list of 46 subjects. The Act also provided for the setting up of a Federal Court to settle disputes between the federal government and the units.

Provincial Autonomy


The Act abolished dyarchy at the provincial level and introduced it at the centre. The federal subjects were divided into two categories: reserved and transferred. The reserved list included defence, external affairs, ecclesiastical affairs and the tribal areas. These were to be administered by the Governor General with the help of councillors. The transferred subjects were to be administered by the Governor-General with the help of ministers to be chosen from the persons commanding the confidence of the central legislature. The Governor-General was also empowered to include the representatives of the Indian states in the ministry. He was also responsible for the coordination of work between the two wings: councillors and the ministers.


Federal Provisions


The federal of the constitution was to be set up when half of the Indian Princely States by weight agreed to federate. But this never happened and the federal feature remained a non starter. The Princes had welcomed the scheme of federation in the first round of RTC but soon after the conference, doubts began to assail them regarding the real implications of federation. The Chamber of Princes which met in January 1935 at Bombay emphasized that the federation depended upon the clear recognition of sovereignty of the states and their rights. However, the British were unwilling to reduce their paramountcy claim over the States in return for their accession to the federation. Moreover, with the rise of States Peoples Movement, the Congress was demanding that the states should establish responsible government and allow their subjects the right to elect state representatives to the federal legislature. Hence, the princes did not agree to join the federation. However, the British were not perturbed with this deadlock because the Act provided two alternative constitutions. One contemplated the establishment of a federal union but if it was not possible, then it was stipulated that the Government of Indian Act, 1919 with some minor amendments would remain in force, limiting its legislative powers to the federal list of subjects and the concurrent list.

Government of INDIA ACT, 1935Since the federal part of the constitution never came into force, it is not necessary to enumerate the details. However, what is important to note is that the scheme was so devised as to make it impossible for the progressive and liberal elements of Indian society to come to power and carry out the necessary reforms. The federal legislature was made bicameral. The upper house was to consist of 260 representatives out of which 104 i. e. two fifth were to be chosen by the rulers of the States. The remaining 156 seats were to be divided as follows:

140 seats allotted to the provinces out of which 75 were for general electorate, 6 for Scheduled Castes, 4 for Sikhs, 49 for Muslims, 6 for women, 10 reserved for Anglo-Indians, Europeans and Indian Christians, and 6 kept for the Governor- General for nomination of members of his choice. Thus in a house of 260, the majority of population i. e. Hindus could elect only 31 percent of members, 24 percent distributed to communal minorities and 40 percent given to States. In the lower house, out of 375 seats, 125 were to be drawn from the States, and the remaining 250 were to be divided as follows: Hindus 104 i. e. 42 percent, Muslims 83 i. e. 24 percent, 26 to other minorities, 11 for industry and commerce, 10 for labour, 7 for landlords and 9 for women. Moreover, most of the members in the British provinces were to be elected by the members of their own communities, who were members of the Provincial Assemblies through a system of proportional representation with single transferable vote. In short, the whole scheme of representation was such that not only the Princes were given disproportionate share in the Federation but their personal status and autocracy was also maintained. The Act was a hindrance to the growth of democratic government.

 

Provincial Autonomy ln Action


The only redeeming feature of the Act was the provincial autonomy. The system of dyarchy was abolished in the provinces and all subjects were transferred to the ministers popularly elected. The hold of the centre over the provinces was also considerably reduced. But the ministers were not free to run the departments of their own. The governor continued to possess a set of overriding powers through ‘discretionary powers’ regarding summoning of legislatures, giving assent to Bills and administering certain special regions. The governor in addition could take over and indefinitely run the administration of a province under the Section 93 of the Act.

Both at the centre and in the states, a system of ‘safeguards and reservations’ was an integral part of the Act. The reasons given were that the minorities needed protection from the dominance of the majority community. The safeguards amounted to vital, reduction in the powers of the ministers. Some of these safeguards were: i) powers in the hands of Governors and the Governor General to disallow the Bills, ii) to certify Bills or financial requirements, iii) to legislate by ordinance and to control the higher public services. It was the intention of the framers of the Act that the provinces should act as self-governing units but the self-government was unmistakably with strings. This was the price of prudence or of pacifying the British Conservative Party.

Apart from the constitutional provisions, three other important decisions were included in the Act: i) Burma and Aden were constitutionally separated from India, ii) Sind and Orissa were made separate provinces, and m) the authority of the Crown with regard to the Indian States was removed from the Government of India and placed under Crown’s Representative i. e. the Governor-General.

In India, the Act was criticized by almost all sections of the Indian public opinion. Jinnah declared that the scheme of Federation was wholly ‘rotten, totally unacceptable and absolutely unworkable. ’ Hindu Mahasabha regarded it as ‘much worse than the existing one and was even reactionary and obstructive to the growth of nationalism and democracy’. When the Act was passed, Nehru wrote: “From the point of view of political change this proposed constitution is an absurdity, it is far worse from the social and economic points of view... Britain retains power without responsibility, there is not even the proverbial fig leaf to cover the nakedness of autocracy". In the debates in the House of Commons, Attlee pointed out that ‘the Act did not recognize the rights of Indians because it contained a large number of reservations. “The keynote of the Bill was mistrust. There is no trust at all. India is not to have control over foreign affairs or her finances. The whole note struck by the Bill was not a constitution to be worked by Indians but some kind of consultation with restrictions of every kind at all times". He compared the Bill “with a ship whose source of energy which give it the movement was left out. " Laski commented that the scheme was cluttered up with all sorts of checks and balances which seemed to ‘reproduce the worst features of the worst modern constitution’.

Politically and constitutionally, the Act was a remarkable feat even though its highest intentions were never fulfilled. Under it, India had first taste and practice of parliamentary self-government in the eleven provinces. Although the all-India federation embodied in it was never created yet the bones of a Federal System including a detailed separation of powers were formed and exercised. It marked a critical stage in the development of British policy towards Indian self- government from 1937 to ’47. But it was far behind the times for which it was legislating. Its origin went back to Simon Commission. By the time it came, a decade had passed - a decade of vital developments in the political life of British India and in less degree of the Indian states. Political power which was till then defused was becoming concentrated in organized political parties. The political consciousness of the masses had awakened. With these developments, the British government and public opinion was largely out of touch.

The importance of the Act lies in the fact that it was under it that, with a few amendments, power was transferred entirely from the British to Indian hands and it served as the working constitution of Independent India for three years and of Independent Pakistan for nine years.


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