The Government of India Act, 1935

01The Act and the federation

The Government of India Act 1935 reached the statute book over the Conservative Party's stiff opposition. Its design was an Indian federation with two kinds of member: the princely states, and the provinces of British India.

Many of the Simon Commission's recommendations were reflected in the Act. One of them was that the constitution should provide for its own growth, without rigidity; behind that lay the assumption that representative government in India could only evolve by stages. Although the Act was a statute, its preamble acknowledged a convention of the British Empire under which a constitution's details were not exhaustively drafted, and grew instead through conventions and through "terms of instruction issued from London". The same passage also rejected, citing the Simon report, time as the measure of the stages, and any need for periodic commissions of inquiry.

02Provinces and centre

In the provinces the Act ended dyarchy. The franchise went up, to about fourteen per cent of the people, and provincial ministries were to be chosen by election. Significantly, the Governor did not lose his emergency powers; they were kept for law and order and for the protection of minorities.

The centre was treated differently. Conservative opinion had to be mollified, and for that reason the Union government was left as it was, except that the legislative assembly grew and the franchise widened. One addition stood out: a Federal Court at Delhi, with jurisdiction over constitutional questions and over disputes between provinces.

03The Federal Court

Demand for a higher court was older than the Act. In the 1920s a Supreme Court for India had the support of several provincial authorities and of nearly every legal public body, bar associations and vakils' associations included.

The Federal Court proposal, when it came at the Round Table Conferences, was a different thing: it was "driven more by concerns of federalism than by judicial autonomy or unresponsiveness". The conferences had proposed a federation of the provinces and the princely states, with responsible government in the provinces — and it was that federal design, not a general demand for justice, that the court was built to serve.

The court found support from three directions. The states did not want to be dominated by the central legislature. Provincial politicians did not want an unelected central executive cutting into their powers. Minorities did not want to be at the mercy of majoritarian electoral politics.

What all three needed was the same thing: a judiciary independent enough to strike down legislation that encroached on minority rights, or on some other government's sphere, as ultra vires — beyond the legislature's lawful power.

The Federal Structure Committee added one more power on top of this: a province could now sue, and be sued, in its own right, by another province or by the Union, before the court.

At the Third Round Table Conference the British Indian delegates tried for an expansion of the proposed court into a Supreme Court whose jurisdiction over appeals would be much wider. The representatives of the princely states, who feared the courts reaching into their internal affairs, resisted strongly. The decision was deferred: the Joint Select Committee provided that the legislature might expand the court's jurisdiction at some later date.

The Act gave the court jurisdiction to interpret the constitution and any law the federal legislature made. It also had an appellate jurisdiction in civil and criminal cases, provided a High Court certified that the case involved a substantial question of law.

Appointment of the judges lay with the King, on the Secretary of State for India's recommendation; the purpose was to shield the court from local politics.

Set beside a High Court judge, a Federal Court judge was well protected. He retired at sixty-five. His salary came out of consolidated funds, and the legislature had no control over those. The legislature was barred from discussing his conduct and from touching his salary or tenure. And he could be removed only for misbehaviour or infirmity, and then only on the Privy Council's recommendation.

The court opened two years after the Act commenced, to low expectations. The federation for whose sake it had been created never came into existence, because the princely states would not join, and the court began with "a much-reduced jurisdiction".

04The Congress case against the Act

The Congress agreed to fight the first provincial elections. It also called the Act a "slave constitution", one meant, in the Congress's own words, to "perpetuate the political and economic bondage of India". The federation, in the Congress reading, was a way of keeping British control: popular forces were to be held in check by what it called "reactionary feudal classes", the princes, and the landlords and zamindars, for whom the second chamber provided representation.

Election to the two Houses of the central assembly ran in opposite directions. For the Lower House it was indirect, through the provincial legislatures; for the Upper House it was direct, from special constituencies.

The constitution was described as one that would evolve, and the Indian legislatures were given no power to amend it. They could pass resolutions that recommended amendments, on certain questions, the extension of the franchise and the method of election among them. The Congress analysis noted that the assembly would stay a non-sovereign body under the British Parliament, citing section 110 of the Act for the point. The Governor-General's powers were greatly enlarged, enough to draw from Churchill the remark that Mussolini would be envious. In the Congress verdict the new constitution was worse than 1919, because many emergency powers that had been implicit were now explicit. The Governors, too, kept their veto and, unlike in 1919, received independent powers of legislation.

05The economic critique

The Congress had a second, more substantive complaint: the constitution left economic and social deprivation unaddressed. On this reading money was withheld from health and education while a top-heavy administration concentrated on law and order; the Act stood in the way of elected governments that wanted to help Indian trade or industry; and British financial and commercial interests received constitutional protection. Examples include the Reserve Bank, over which the Federal Legislature's control was very limited, and the Railways, carrying a great deal of British capital, which were to be run by a statutory board of bureaucrats, the Railway Board.

The Act contained no Bill of Rights. What it contained instead was a non-discrimination clause whose only beneficiaries were British-domiciled persons: laws were forbidden that imposed sanctions on British subjects domiciled in the United Kingdom, whether over entry into India or over "acquisition, holding or disposal of property, the holding of public office, or the carrying on of any occupation, trade, business or profession". Companies were covered too. A company incorporated in the United Kingdom had a guarantee that Indian company law would not apply to it, and British entities were assured equal treatment in taxation and in eligibility for government grants.

The idea of a constitution holding the economy captive was a powerful one, economic development being central to nationalist thinking. It is perhaps not a coincidence that the Congress went on to set up a National Planning Committee to plan state-led development and redistribution.

06The resolutions of 1937

The settlement of 1935 was a spectacular failure as a check on rising nationalism. The princes, its intended bulwark against the nationalists, refused to take part in the federation. The Congress, having decided to contest, won so heavily that it formed governments in most of the provinces.

Within days of the election, a resolution had passed in eight provinces and in the central legislative assembly. It asserted that the Act "in no way represents the will of the people" and "has been designed to perpetuate the subjection of the people of India", and it demanded the Act's repeal, with a Constituent Assembly, chosen on universal adult franchise, to frame the constitution of a free India. Remember this for the exam: this 1937 demand is the direct origin of the Constituent Assembly that went on to write India's Constitution.

07What to carry forward

• 1935: a federation of provinces and states on paper; provincial dyarchy ended; franchise about fourteen per cent; elected provincial ministries; Governors' emergency powers kept; the centre left alone; a Federal Court at Delhi.
• The Federal Court: wanted at the Round Table Conferences, more for federal reasons than judicial ones, by the states, provincial politicians and the minorities; judges appointed by the King on the Secretary of State's recommendation; removal only for misbehaviour or infirmity on the Privy Council's recommendation; opened to a reduced jurisdiction because the federation never came.
• The Congress case: a "slave constitution"; a federation resting on the princes and on the landlords and zamindars of the second chamber; a Lower House indirectly elected and an Upper House directly; no amending power, a non-sovereign assembly; the Governor-General's powers enlarged; many implicit emergency powers made explicit. Also count the Governors' veto and their new legislative powers.
• The economic case: health and education starved; elected governments kept from aiding Indian enterprise; the legislature's control of the Reserve Bank very limited; the Railways under a statutory board; no Bill of Rights, but protections for UK-domiciled persons and UK companies.
• 1937: the princes stay out; the Congress wins most provinces; eight assemblies and the central assembly demand repeal and a Constituent Assembly chosen on universal adult franchise.