Government of India Act, 1935: Dr. Amit Kashyap Assistant Professor of Law, Army Law College, Pune-412106

GOVERNMENT OF INDIA ACT,
1935
Dr. Amit Kashyap

Assistant Professor of Law,
Army Law College,
Pune-412106.
GOVERNMENT OF INDIA ACT, 1935:
SYNOPSIS:
• Before the Government of India Act, 1935
• The Simon Commission
• The Nehru Committee
• Jinnah’s 14 Points
• Idea of Federation
SYNOPSIS:
• The first Round Table Conference
• The Second Round Table Conference
• The Third Round Table Conference
• Salient features of Federation
• Units of Federation under the Government of
India Act, 1935
• Dyarchy in the Federation
• Powers of the Governor-General
• Federal Legislature
• Powers of the Governor-General and the
Legislature
• Restrictions on Legislative powers
• The Scheme of distribution of Legislative
powers
• Provisions regarding the failure of
Constitutional Machinery
• Federal Court
• Responsible Government in the Provinces
• Limits on the powers of the Provincial
Legislatures
• The working of Provincial Autonomy
Before the Government of India Act,
1935:
• 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.
The Simon Commission:
• 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.
1935:
• 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.
1935:
• 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.
1935:
• 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.
1935:
• The salient features of the Report can be
summed up as follows:
• It recommended that responsible Government
should be made real in the provinces and Dyarchy
was to be discarded.
• 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.
1935:
• 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.
The Nehru Committee:
• As a challenge to the Simon
Commission an All Parties
Conference appointed a Committee
under the president ship of Motilal
Nehru to make the Indian point of
view on Constitutional reform
known to the British Government.
The Nehru Committee:
• 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:
• “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;
Recommendations:
• 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;
• It emphasized the urgent need of
provincial autonomy;
Recommendations:
• It contemplated a scheme of division of
power between the Centre and the
provinces, the residuary powers were to
be vested with the Centre;
• Though the Report acknowledged the
fact that the problem was not beyond
remedy in free India.
Recommendations:
• It recommended the abolition of
the separate electorates and
proposed their substitution by
joint electorates with
reservation of seats for
minorities on population basis.
Recommendations:
• Minorities were also given the right to
contest a seat other than those
reserved for them;
• The Report submitted a list of
nineteen fundamental rights which
were to be embodied in the
Constitutional Statute:
Recommendations:
• 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;
Recommendations:
• Among other things, is recommended that a
Supreme Court was to be established as the
final court of appeal in India;
• The Parliament i.e. Central Legislature was to
consist of two Houses.
• 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.
Recommendations:
• 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 31st 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.
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” :
• “The form of the future constitution should be
federal with the residency powers vested in the
province.”
• “A uniform measure of autonomy shall be
granted to all provinces.”
• “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.”
• “In Central Legislature Muslim
representation shall be not less than one-
third.”
• “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.”
• “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.”
• “Full religious liberty, i.e., liberty of belief,
worship and observance, propaganda,
association and education shall be
guaranteed to all communities.”
• “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.
• “Sind should be separated from the Bombay
Presidency.”
• “Reforms should be introduced in the North-
West Frontier Province and Baluchistan on the
same footing as in other provinces.”
• “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.”
• “The Constitution should be embodying
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.”
• “No Cabinet either central or provincial
should be formed without their being a
proportion of at least one-third Muslim
Ministers.”
• “No change shall be made in the
constitution of the Central Legislature
except with the concurrence of the States
constituting the Indian Federation.”
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.
Idea of 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.
Idea of Federation:
• 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 Irwin’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.
Idea of Federation:
• 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
paramount of the British Government and thereby
they could be free in their internal affairs.
• The Rulers of several States welcomed the idea of
federation.
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.
Idea of Federation:
• 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.
Idea of Federation:
• 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.
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.
• The possibility of a federation for India;
• Full responsible Government with necessary
safeguards in the Provinces;
• 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 Bahadur 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.
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 weightage.
• 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.
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.
The Third Round Table Conference:
• 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 was
subsequently contained in the White Paper of 1933.
• The main features of the White Paper were the
following:
• There was to be a federation in India provided certain
number of Indian States agreed to accede to the
federation.
• Provincial autonomy subject to certain special
responsibilities and safeguards was to be introduced.
The White Paper:
• The executive on the Centre would
also have an element of popular
responsibility.
• The Muslims would be granted
33.5% of the seats allotted to British
India in the Central and Provincial
Legislatures.
The White Paper:
• 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
paramount 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 Dyarchy, 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.
The Main Salient Features of Federalism
under the Government of India Act, 1935:
• Abolition of provincial dyrachy and
introduction of dyarchy at the centre.
• Abolition of Indian Council and
introduction of an advisory body in its
place.
• Provision for an All India Federation
with British India territories and
princely states.
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.
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, Orissa, 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 executing and
Instrument of Accession.
• But, the States did not agree to accede and
accordingly, the federal part of the
Government of India Act, 1935 never came
into effect except in the establishment of the
Federal Court.
Dyarchy in the Federation:
• The federal executive was to be constituted
on the principle of dyarchy.
• There were to be Councilors 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 dyarchy 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.
6. 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.
(a) Council of States:
• There were 75 general seats, 6 for Scheduled
Castes, 4 in the Punjab for Sikhs.
• 45 for Mohamedan 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.
(b) Federal Assembly:
• 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.
7. 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.
8. 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;
The Scheme of Distribution of
Legislative Power under the
• 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
paramount 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, 1935,
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
• 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.
Provisions Regarding Failure of
Constitutional Machinery:
• 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.
Federal Court:
• 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.
Federal Court:
• 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.
Federal Court:
• 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.
Federal Court:
• 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.
Federal Court:
• If a State was a part, the dispute
must have concerned the
interpretation of the Government of
India Act, 1935 or order-in-Council
there under or the extent of the
legislative or executive authority
vested in the federation by the
Instrument of Accession.
Federal Court:
• 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.
Federal Court:
• 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 there under.
Federal Court:
• 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.
Federal Court:
• In the case of a State, appeal could be
brought on the question of the
interpretation of the Act or order-in-
Council there under.
• 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 there under.
Federal Court:
• 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.
Federal Court:
• However, it has to be noted that the Federal
Court was not the final Court to interpret the
• 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.
Federal Court:
• 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:
Provinces:
• “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.”
Provinces:
• 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.
Provinces:
• 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:
Provinces:
• 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;
Provinces:
• 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;
Provinces:
• 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.
Provinces:
• 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.
Provinces:
• 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.
Provinces:
• 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.
Provinces:
• Seats were also reserved for
Mohamedan, Sikhs, Europeans,
Anglo-Indians, Christians,
representatives of Commerce,
industry, mining, and plantations,
landlords and labour.
Provinces:
• 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.
Provinces:
• 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.
13. 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.
14. 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.
Autonomy:
• These provinces were Madras, Uttar Pradesh,
Bihar, Central Provinces and Orissa.
• 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.
Autonomy:
• However, the statesmanship of
Marques 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.
Autonomy:
• 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.
Autonomy:
• 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.
Autonomy:
• 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.
Autonomy:
• (a) The principle of joint
responsibility and the superiority of
the Prime Minister over his
colleagues became settled features
of the Government.
Autonomy:
• (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;
Autonomy:
• (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;
Autonomy:
• (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.
Autonomy:
• 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.
Autonomy:
• 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.

Government of India Act, 1935: Dr. Amit Kashyap Assistant Professor of Law, Army Law College, Pune-412106

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Government of India Act, 1935: Dr. Amit Kashyap Assistant Professor of Law, Army Law College, Pune-412106

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GOVERNMENT OF INDIA ACT,

Dr. Amit Kashyap

• Gandhiji demanded full responsibility at

• The communal issue was deliberately

• On his return to India he found that

• The pattern of federalism adopted under the

• (g) Which affected the grant of relief

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