Despite the provision to draft a federal Constitution, the Government of India Act 1935 fell short of an actual federal Constitution. Critically analyse.
It was the longest act enacted by the British Parliament at that time. According to this act, India would become a federation if 50% of Indian states decided to join it. They would then have a large number of representatives in the two houses of the central legislature. However, the provisions with regards to the federation were not implemented. The act made no reference even to granting dominion status, much less independence, to India.
Federal features in GOI 1935
- All India Federation: It provided for the establishment of an All India Federation consisting of the British India Provinces and other Indian states. The States were absolutely free to join or not to join the proposed Federation. The rulers of Indian states never gave their consent and thus, the Federation envisaged by the Act never came into being.
- Provincial Autonomy: One redeeming feature of the new Act was that it marked the beginning of the provincial autonomy.The Act divided legislative powers between the provincial and central legislatures and within their defined sphere the provinces were autonomous units of administration. The Ministers were not absolutely free in matters running their departments. The Governors continued to possess a set of overriding powers.
- Setting up of a federal legislature: Bicameralism was introduced. The Federal Legislature was to consist of two houses. It envisaged setting up a council of states and federal assembly, with reservations in the Council of states for minorities, women and depressed classes.
- Distribution of Legislative Power: The act made a three-fold division of powers between the Centre and the Provinces- federal list, provincial list and concurrent list. The subjects which were of all-India interest and demanded uniform treatment were put in the federal list.
- Setting up of a federal court: A Federal court was also envisaged to be set up under this act so the provisions of the act could be interpreted in case of any disputes. The Federal Court established by this Act has three kinds of jurisdictions i.e. Original, Appellate and Advisory. The court had exclusive original jurisdiction in any dispute between the Federation and its units.
Non federal features on GOI 1935
- Discretionary powers: The new act armed the governors and governor-general with tremendous discretionary powers and thus reduced provincial autonomy on paper. In a way the Act made the Governors so powerful that they could play the dictator if they liked. The Governors and the Governor-General continued to have the last word in the preparation of budget and allocation of funds to various departments.
- Legislation regarding provincial list: The Federal Legislature had the power to legislate with respect to the subjects enumerated in the Provincial List if a proclamation of emergency was made by the governor-general.
- Defective federation: The proposed formation of the Federation was also fundamentally defective. Entry into the federation was compulsory for the Provinces but voluntary for the Princely States. There was a lot of difference in regard to population, area, political importance and status between the provinces and the States. Whereas the British Provinces were partly autonomous units, the States were still under the autocratic rule of the Princes.
- Residuary powers: The allocation of residuary powers was unique. It was not vested in either of the legislatures, central or provincial. But the Governor-General was empowered to authorise, either the Federal or the Provincial Legislature to enact a law with respect to any residuary matter.
Government of India Act 1935, however, had introduced several features which later formed the nucleus of our Constitution.