The
Governor
could also issue what were known
as Governor's Acts.
as Governor's Acts.
Cambridge History of India - v4 - Indian Empire
The procedure to be adopted for election of the
representatives of the depressed classes to the Central Legislature
was postponed as that involved the whole system of representation
at the Centre.
It is true that the Indian National Congress passed a resolution
by which it neither accepted nor rejected the Communal Award,
but the fact remains that there were many defects in it for which
it was condemned by the Indians. It was pointed out that the
Award was unjust to the Hindus and the Sikhs. It maintained the
weightage given to the Muslims in the legislatures in those provin-
ces where they were in a minority. Instead of giving similar
weightage to the Hindus in Bengal, the Award gave them only 32%
of the seats when they actually formed 44. 8% of the total popula-
tion of the province. The Award gave 10% of the total seats in
the Bengal Provincial Legislature to the Europeans who were only
0. 01 per cent of the total population. It is true that the Award
cut down the representation of the Muslims also but the cut in
the case of the Hindus was greater than that of the Muslims. In
the Punjab, the Hindus instead of getting weightage as a minority
community, had their representation cut down to give some weight-
age to the Sikhs. The Sikhs also failed to get the weightage which
the Muslims got in other provinces. No wonder, the Award was
opposed both by the Hindus and the Sikhs. The British Govern-
ment had been proclaiming that they were entirely disinterested in
the matter of communal settlement but it could be pointed out
that it was the British disinterestedness which penalized the Hindus
everywhere. While the Europeans were given 2,50,000 times
weightage in Bengal, the Hindus were not given even that which
was their due on the basis of their population. Mr. Attlee who
later on became the Prime Minister of England in 1945, admitted
that the Communal Award was weighted in favour of the Muslims
and against the Hindus.
Lord Zetland criticized the Communal Award in these words:
“It is one thing to concede separate communal electorate for the
purpose of giving minorities reasonable representation in the vari-
ous legislatures; it is an entirely different thing to employ the sys-
tem for the purpose of conferring upon a majority community in
## p. 639 (#679) ############################################
POONA PACT
639
a
any particular province a permanent majority in the legislature un-
alterable by any appeal to the electorate. Such a course has never
hitherto been adopted. It was considered and rejected by the
Statutory Commission, who declared that a claim submitted to
them which in Bengal and Punjab would give to the Muslim com-
munity a fixed and unalterable majority in the general constituency
seats, was one which they could not entertain; it would be unfair,
they wrote, the Mohammedans should retain the very considerable
weightage they now enjoy in the 6 provinces and that there should
at the same time be imposed, in the face of Hindu and Sikh opposi-
tion, definite majority in the Punjab and the Bengal unalterable
by an appeal to the electorate. "
Dr. Rajendra Prasad who later on became the President of
India, made the following observation on the Communal Award:
“The distribution of seats among the various communities was no
less remarkable. In all discussions about the communal problem,
Bengal and the Punjab presented difficulties. In both these Pro-
vinces, the Mussalmans are in a majority but the majority is a small
one about 55 p. c. In both these provinces it was demanded on
behalf of the Mussalmans that there should be both separate electo-
rate and reservation of seats for them although they happened to
be in a majority. In Bengal the position was complicated by the
desire of the British Government to give a very heavy weightage to
the Europeans while in the Punjab the non-Mohammedans were
divided into Hindus and Sikhs. The Sikhs insisted that, if there
were to be separate electorates and reservations of seats, they as an
important community should be given weightage as Mussalmans
had got in other Provinces where they were in a minority. The
Communal Award maintained with a small variation the propor-
tion of seats given to Mussalmans by the Montagu-Chelmsford Re-
forms in all the Provinces except Bengal and the Punjab. In Ben-
gal, the Hindus were in the minority of 44. 8 per cent of the total
population. They were given only 80 out of 250 seats, i. e. only 32
per cent of the total. The Mussalmans who were 54. 8 per cent of
the population were given 119 seats, i. e. 47. 6 per cent of the total.
The Europeans who were . 01 per cent of the population were given
25 seats, i. e. 10 per cent of the total number of seats. It will thus
appear that the Mussalmans who were in a majority were reduced
to a minority in the representation and the Hindus who were in a
minority were deprived even of their due proportion—in order to
give a very heavy weightage of 2,50,000 times to the Europeans.
What is noteworthy is that although the representation of both
Muslims and Hindus was reduced, the cut was greater in the Hindus'
representation. In other words, unlike other Provinces weightage
## p. 640 (#680) ############################################
640 CONSTITUTIONAL CHANGES FROM 1919 TO 1969
was given to the smallest community not out of the majority com-
munity alone but out of another minority which was required not
only to give up any weightage which it might feel entitled to as a
minority but also to make a greater sacrifice proportionately than
the majority community. In the Punjab also to give weightage to
the Sikhs, the Hindus were required to give up a portion of their
representation, although they were in a minority and would be
entitled to weightage according to ordinary canons of fairness and
justice. It may also be noted that in both these Provinces, the
Award reduced the Muslim representation to such an extent as to
make it a minority of the total, although they still constituted the
largest group in the Legislative Assembly and had those seats re-
served for them, to be filled through separate electorates. No
wonder the Award was assailed with great vehemence by the Hindus
who were required to make sacrifices in the Provinces where they
were in majority and also in the Provinces where they were in a
minority, and in Bengal the sacrifice that was imposed was propor-
tionately much greater-nearly double--than that required of the
majority community. ” (India Divided, pp. 129-30).
THIRD ROUND TABLE CONFERENCE
The Third Round Table Conference was called by the British
Government rather reluctantly as it was of the opinion that the rest
of the work could be done in India. The result was that the ses-
sion of the Third Round Table Conference lasted from November
17, 1932 to December 24, 1932. The Labour Party did not parti-
cipate in its deliberations and the Indian National Congress was
unrepresented. The delegates to the Conference merely discussed
the Reports of the various committees appointed by the Second
Round Table Conference and decided a few more points.
THE WHITE PAPER (1933)
When the whole scheme regarding the future constitution of
India was thrashed out, the Biitish Government issued in March
1933 a small document known as the White Paper. It gave in
detail the working basis of the new Indian Constitution with
dyarchy at the Centre and a responsible Government in the provin-
ces. As was to be expected, the White Paper was condemned by the
Indian public opinion, but the British Government went on with its
programme.
In April 1933, a Joint Select Committee was appointed to exa-
mine and report on the Government proposals as contained in the
## p. 641 (#681) ############################################
GOVERNMENT OF INDIA ACT, 1935
641
White Paper. The Committee consisted of 16 members each from
the House of Commons and House of Lords and its Chairman was
Lord Linlithgow. The Committee invited representatives from
British India and Indian States. After examining many witnesses
and going through the memoranda received from the Indian Asso-
ciation, the British India delegations, Sir Tej Bahadur Sapru, Shri
M. R. Jayakar and other prominent individuals, the Joint Select
Committee submitted its report on November 22, 1934. Although
it did not alter the fundamentals as given in the White Paper, it
recommended many changes in the structure of the Provincial and
Federal Legislatures and other matters also.
When the Reforms scheme was thoroughly discussed and given
the shape by the Joint Select Committee, a Bill was drafted on those
lines and introduced in the House of Commons on February 5,
1935. Sir Samuel Hoare, Secretary of State for India, was in-
charge of the Bill which was severely criticised by the Labour Party
for its limited scope.
The Labour members tried to amend the
Bill in such a way as to recommend explicitly India's right to
Dominion Status. The diehards led by Winston Churchill tried to
introduce reactionary elements into the Bill. However, the Govern-
ment went on with its own scheme which was passed by the House
of Commons on June 4, 1935. The Bill was introduced in the
House of Lords on June 6, 1935 and was passed in July, 1935.
Here also the efforts of the Labour members to liberalise the Bill
failed.
As the Government had made many amendments in the
Bill at this stage, the Bill had to be sent back to the House of Com-
mons which accepted the proposed amendments. The Bill received
the Royal assent on August 2, 1935 as the Government of India
Act, 1935.
GOVERNMENT OF INDIA ACT, 1935
The Act provided for an All-India Federation. The question of
a federation for India had presented a peculiar problem on account
of the disparity between the Indian States and the provinces of
British India. The Indian States were under the complete control
of the Political Department of the Government of India. On the
other hand, the provinces had some sort of a democratic Govern-
The Act provided that all the provinces were to join the
Indian Federation automatically. Entry into the Federation was
to be a voluntary act on the part of the ruler of each State, how-
ever small and insignificant his State might be. At the time of
joining the Federation, the ruler of the State was to execute an
Instrument of Accession in favour of the Crown. On the accept-
ment.
## p. 642 (#682) ############################################
642 CONSTITUTIONAL CHANGES FROM 1919 TO 1969
ance of that Instrument, the State was to become a unit of the
Federation. The Crown was forbidden to accept an Instrument
of Accession if its terms appeared to be inconsistent with the scheme
of the Federation. While the provinces were to be alike in respect
of the position and quantum of legislative and executive powers in
the Federation, the States were to differ regarding the extent of
their powers in the Federation. The extent of the federal jurisdic-
tion in the States was to depend solely upon the transfers made by
their respective rulers through their Instrument of Accession. The
Instrument was to authorise the various federal authorities to exer-
cise their respective functions under the Act in relation to a particu-
lar State. It was to be the duty of the ruler of the State to see that
due effect was given within his State to the provisions of the Act
in so far as those provisions were made applicable by virtue of the
Instrument. The ruler was authorised to extend the functions of
the federal authority in respect of his State by another Instrument,
but no subsequent Instrument could decrease the scope of the
authority of the Federation as provided by the original Instrument
of Accession.
The Indian States were to send 125 members to the Federal
Assembly and 104 members to the Council of State. The provin-
ces were to send 250 members to the Federal Assembly and 156
members to the Council of State. The members from the Indian
States were to be nominated by the rulers but those from the pro-
vinces were to be elected on communal lines. The functions of the
Crown with regard to Indian States were to be performed in India
by his representative who was the Viceroy himself.
The Indian Federation as provided by the Government of India
Act, 1935, was different from the other federal systems. There
was no simple division of powers between the Centre and the units.
The Act provided for 3 Lists: Federal List, Provincial List and
Concurrent List. The Federal Government was authorised to pass
laws on the subjects given in the Federal List. The subjects given
in the Provincial List were within the exclusive jurisdiction of the
Provincial Legislature. As regards the Concurrent List, both the
Federal Legislature and the Provincial Legislatures could pass laws
on the subjects given in that List. However, if a law was passed
by the Federal Legislature on any subject given in the Concurrent
List, the Provincial legislature could not make laws on the same
subject afterwards. As regards the residuary powers, the Governor-
General in his discretion was given the power to decide as to which
of the 3 Lists a particular subject was to be allotted.
The Act provided for dyarchy at the Centre. Certain federal
subjects were reserved in the hands of the Governor-General to be
## p. 643 (#683) ############################################
GOVERNMENT OF INDIA ACT, 1935
643
administered by him with the assistance of not more than 3 Coun-
sellors to be appointed by him. Those subjects were Defence, Ex-
ternal Affairs, Ecclesiastical Affairs and the administration of tribal
areas. In the administration of other federal subjects, the Gover-
nor-General was to be aided and advised by a Council of Ministers
whose number was not to exceed 10. The federal ministry was to
administer all the federal departments except the above mentioned
reserved departments. The federal ministry was to be formed on
the usual cabinet lines except that it was to include the representa-
tives of the important minorities. The Governor-Gerineral was
instructed by means of an Instrument of Instructions to secure such
representation to the best of his ability. In spite of the composite
character of the ministry, responsibility was to be collective. The
ministry was to be responsible to the federal legislature.
The Governor-General was required to act in three different
capacities. Ordinarily, he was to act on the advice of his ministers
with regard to all subjects other than the reserved subjects. When
he acted on the advice of the ministers, he acted as a constitutional
head. He was also required to act in his individual judgment.
When he did so, he was required to consult his ministers but it was
not binding on him to act upon their advice. The Governor-
General acted in his individual judgment while performing his
special responsibilities. Those were the safeguarding of the finan-
cial stability and credit of India, prevention of any grave menace
to the peace and tranquillity of India or any part of India, safe-
guarding of the legitimate interests of the minorities, the legitimate
rights of the public servants and their dependents and the interests
of the Indian States and the dignity of their rulers, prevention of
commercial discrimination and discriminatory taxation against
goods of British origin or Burmese origin and the securing of the
due discharge of his discretionary powers.
While acting in his discretion, the Governor-General was not re-
quired even to consult his ministers and the question of acting upon
their advice did not arise at all. While doing so, he could act in
an arbitrary manner. The Governor-General acted in his discre-
tion while administering the reserved departments of Defence, Ex-
ternal Affairs, Ecclesiastical Affairs and the tribal areas. He also
acted in the same capacity while appointing the 3 Counsellors.
He appointed and dismissed his ministers and presided over their
meetings in his discretion. In the same capacity, he was authoriş-
ed to issue two kinds of ordinances. One type of ordinance could
be issued by him at any time and that lasted for 6 months. The
other type of ordinance was to be issued only when the Legislature
was not sitting. The Governor-General was given the power to
## p. 644 (#684) ############################################
644 CONSTITUTIONAL CHANGES FROM 1919 TO 1969
issue what were known as Governor-General's Acts. But those Acts
had to be forwarded to the Secretary of State. The previous sanc-
tion of the Governor-General in his discretion was required for the
introduction of certain bills in the federal Legislature and the Pro-
vincial Legislatures. He was authorised to stop the discussion of
any Bill at any time by the Legislature. He could withhold his
assent to a bill passed by the Legislature or send the same back for
reconsideration or reserve the same for the consideration of His
Majesty. He was given control over about 80% of the federal
budget. The non-votable items of the budget formed a major part
of the budget. He could, in his discretion, send any instructions to
the Governors and it was the special responsibility of the Governors
to carry them out. He could suspend the Constitution in his dis-
cretion. He was given the authority to summon, prorogue or dis-
solve the Federal Assembly. He could summon both Houses for a
joint sitting. He could address the Legislature or send messages re-
garding a certain bill.
The Federal Legislature was to be bicameral consisting of the
Federal Assembly and the Council of State. The Federal Assembly
was to have a life of 5 years from the date of its first meeting. On
the expiry of that period, it was automatically dissolved. How-
ever, the Governor-General was given the power to extend its life.
The Council of State was to be a permanent body of which 1/3rd
members were to retire after every 3 years. The members from the
States were to be nominated by the rulers. The representatives from
British India were to be elected. The Hindu, Muslim and Sikh
members were to be elected on communal lines. While the mem-
bers of the Council of State were to be directly elected, those of the
Federal Assembly were to be indirectly elected.
The powers of the Indian Legislature were severely restricted.
There were certain subjects on which neither the Federal Legisla-
ture nor the Provincial Legislatures could legislate. The Indian
Legislatures was debarred from making any law affecting the
Sovereign or the Royal family or the succession to the throne or
suzerainty of the Crown over any part of India or law of British
nationality or the Army Act, the Air Force Act or the Law of Prize
Courts. The Indian Legislatures could not make any law amend-
ing any of the provisions of the Government of India Act, 1935 or
any Order-in-Council made under it or any rules made thereunder
by the Secretary of State or the Governor-General or a Governor
in his discretion or in the exercise of his individual judgment. It
could not make any law affecting the prerogative right of the
Crown to grant special leave to appeal to the Privy Council except
in so far as that was expressly permitted by the Act. It could not
## p. 645 (#685) ############################################
GOVERNMENT OF INDIA ACT, 1935
645
make any legislation which discriminated against the British inter-
ests in commercial and other spheres. There were a large number
of subjects of vital importance on which initiation of legislation re-
quired previous sanction of the Governor-General. There were
many non-votable items in the Budget over which the Federal Legis-
lature had absolutely no control. If any item of the budget was
rejected by the Federal Assembly, the same could be put before
the Council of State if the Governor-General so directed. If the
two Houses of the Federal Legislature differed with respect of any
demand, the Governor-General was required to summon a joint
sitting for voting on that demand and the decision of the majority
was to prevail. The Governor-General was given the power to
summon a joint sitting of the two Houses of the Federal Legisla-
ture, when a bill passed by one House was rejected by the other or
was amended in a form to which the first House was not agree-
able. After a bill was passed by both the Houses of Federal Legis-
lature, the Governor-General, in his discretion, could assent to it
or veto it or send it back for reconsideration or reserve it for His
Majesty's consideration. The Act assented to by the Governor-
General could be disallowed within a year by the King-in-Council.
The Act provided for the establishment of a Federal Court of
India with jurisdiction over the States and the provinces. The
Court was to consist of a Chief Justice and two puisne Judges. It
was given both original and appellate powers. It was the duty of
the Federal Court to interpret the Constitution and to see that the
provinces and the Federal Legislature acted within the spheres re-
served for them by the Act. However, the last word in that matter
was to be said by the Privy Council sitting in London.
The Act abolished the India Council of the Secretary of State.
This body had been set up in 1858 to assist the Secretary of State
for India in the discharge of his duties. However, there had been
a lot of criticism about its composition and its actual role and conse-
quently the same was abolished by the new Act. The Secretary
of State was to be assisted in future by an advisory body consisting
of not less than 3 and not more than 6 Advisers. At least half of
those Advisers were to be those persons who had held office in
India for at least 10 years and who had not left India for more
than 2 years at the time of their appointment. They were to hold
office for 5 years only. They could not sit in Parliament. Their
function was advisory and as a rule, the Secretary of State was
required to secure the concurrence of at least one-half of the advi-
sers. The Act provided that "It shall be in the discretion of the
.
Secretary of State whether or not he consult his advisers in any
matter, and if so, whether he consults them individually and
## p. 646 (#686) ############################################
646 CONSTITUTIONAL CHANGES FROM 1919 TO 1969
whether or not he acts in accordance with any advice given to him
by them. ”
The position of the Governor under the new Act resembled that
of the Governor-General although it differed a little on account
of the introduction of provincial autonomy. The Governor-Gene-
ral was required to act in 3 different capacities. Ordinarily, he
was to act according to the advice of his ministers. When he did
so, he acted as a constitutional head and his position could be
compared to the Lieutenant-Governor of a Canadian province. He
was also authorised to act in his individual judgment. While doing
so, he had to listen to the advice of his ministers but it was up to
him to accept their advice or not. He acted in his individual
judgment while performing his special responsibilities which were
the prevention of any grave menace to the peace and tranquillity
of the province or any part of it, safeguarding the rights and legiti-
mate interests of the public servants and their deper:dents, the
rights and interests of the Indian states and the dignity of their
rulers and the legitimate interests of the minorities, administration
of partially excluded areas, prevention of commercial discrimination
against Englishmen and their goods and the execution of the orders
and directions of the Governor-General issued by him in his discre-
tion. It was the duty of the Governor of C. P. to see that a reason-
able share of the provincial revenues was spent for the benefit of
the people of Berar. Likewise, it was the duty of the Governor
of Sind to secure the proper administration of the Lloyd Barrage
and Canals' Scheme.
The Governor was to act in his discretion in the following cases.
He was to appoint and dismiss ministers. This was a very subs-
tantial power and it was actually exercised by the Governors of
Bengal and the North-West Frontier Provinces to exclude one party
and keep the other party in power. He was to preside over the
meetings of the Council of Ministers. While doing so, he could
influence the deliberations and conclusions of the ministers. That
was particularly due to his great administrative experience. He
could issue two kinds of ordinances. One kind of ordinance could
be issued by him at any time and that lasted for 6 months. The
other type of ordinance was to be issued only when the Legislature
was not sitting.
The Governor could also issue what were known
as Governor's Acts. In certain cases, the previous sanction of the
Governor was required for the introduction of certain bills in the
Provincial Legislature. He could stop the discussion of any bill
in the Legislature at any time. Even when the bill was passed,
he could veto it or send the same back for reconsideration by the
Legislature. He could reserve a bill for the assent of the Governor-
## p. 647 (#687) ############################################
GOVERNMENT OF INDIA ACT, 1935
647
General. He appointed the members of the Provincial Public
Service Commission. He was given many powers regarding the
police force and also the authority to suppress the terrorists. The
Governor was to decide which items of expenditure were to be
regarded as "expenditure charged upon revenues of the province.
Those items were taken out of the control of the legislature. The
non-votable items formed about 40% of the budget.
the budget. If the whole
or any part of the budget was rejected, the Governor was given
the authority to restore the same. Under section 93 of the Act, a
Governor could suspend the Constitution and take over the admin-
istration of the province in his own hands.
The position of the provincial ministers under the new Act was
certainly superior to that under the old Act. There were no re-
served Departments and the Governor was expected to carry on
the administration of the province according to the advice of the
ministers. It was laid down in the Instrument of Instructions that
the Governor was to summon that person to form the ministry who
could be expected to command a majority in the Provincial Legisla-
ture. The other ministers were to be appointed by the Governor
on the advice of the Chief Minister. It was the duty of the Gover-
nor to see that minorities were given representation in the ministry.
If a person was not a member of the Legislature at the time of his
appointment, he was to get himself elected within 6 months of his
appointment. The Governors were instructed to encourage collec-
tive responsibility among the ministers. They were allowed to pre-
side over the meetings of the Council of Ministers.
However, it cannot be denied that the powers of the ministers
were limited. They did not enjoy complete autonomy in the pro-
vincial field. The enormous powers of the Governor were respon-
sible for the weakness of the position of the ministers. The Gover-
nor had many legislative powers and those powers naturally restrict-
ed the legislative control of the ministers. He may not allow a
particular bill to be introduced in the Legislature. He may veto
a bill which had been passed by the Legislature on the initiative of
the ministry. He may stop the discussion of any bill at any time.
The issuing of ordinances and Governor's Acts also limited the
legislative scope of the ministers. The same could be said about
finance. The ministers were not given a free hand in the matter
of proposing new taxes. A Governor may not give his sanction to
a bill for that purpose. The ministers had no control over 40%
of the budget which was non-votable. A Governor could dismiss
the ministers and that was actually done in many cases. Fazl-ul-
Haq, the Chief Minister of Bengal, was unceremoniously dismissed
by the Governor in 1943. Alla Bux, the Chief Minister of Sind,
## p. 648 (#688) ############################################
648 CONSTITUTIONAL CHANGES FROM 1919 TO 1969
was dismissed because he gave up the title of Khan Bahadur. The
Governor of the Punjab dismissed Shaukat Hayat Khan.
Different views were expressed regarding the position of the
ministers under the Act of 1935. The view of Lord Zetland was:
“Let it not be supposed that the field of Government is to be divid-
ed into two parts, in which the Governor and the ministry operate
separately at the risk of clashes between them. The essence of the
new constitution is that the initiative and responsibility for the
whole of the Government of province, though in form vesting in
the Governor, passes to the ministry as soon as it takes office. ” Sir
Maurice Hallet, Governor of U. P. , says: “After all, the relations
of a Governor with his ministers were not those of a master and
his servants; rather they are partners in a common enterprise—the
good government of the province. ” The true position was that the
actual position of the ministry depended upon its party strength in
the Legislature and the personality of the members who constituted
the ministry. In the last analysis, much depended upon the perso-
nal equation.
The Government of India Act, 1935, did not set up Provincial
Legislatures of a uniform pattern. The six provinces of Assam,
Bengal, Bihar, U. P. , Madras and Bombay were given two chambers
each, while the legislatures of the Punjab, Sind, North-West Frontier
Province, Orissa and C. P. had only one chamber. Where there
were two chambers, their names were the Provincial Legislative
Assembly and Provincial Legislative Council. Where there was
only one house, it was merely the Provincial Legislative Assembly.
While all the members of the Assembly were elected, some of the
members of the Council were nominated. The size of the Provin-
cial Assemblies varied from province to province. It was 215 for
Madras, 175 for Bombay and Punjab, 250 for Bengal, 228 for U. P. ,
152 for Bihar, 112 for C. P. and Berar, 108 for Assam, 50 for North-
West Frontier Province and 60 each for Orissa and Sind. The
seats in the various provinces were distributed according to the
Communal Award as amended by the Poona Pact. Some seats
were known as general seats out of which some were reserved for
the scheduled castes. Separate representation on communal lines
was given to the Muslims, Sikhs, Anglo-Indians, Europeans and the
Indian Christians. Some seats were reserved for commerce, indus-
try, mining and plantation, land-holders, labour and universities.
Europeans in Bengal were given the highest representation. The
land-holders both in U. P. and Madras got 6 seats each. 90 seats
were given in Bengal to commerce, industry, mining and plantation.
In Bengal, out of a total of 78 seats given to the Hindus, 30 were
reserved for the scheduled castes. The life of the Assembly was fix:
## p. 649 (#689) ############################################
NATURE OF PROVINCIAL AUTONOMY
649
ed at 5 years but the same could be dissolved earlier. It could also
be extended beyond the period of 5 years. The first general elec-
tions were held in 1937 and the next elections were held not earlier
than 1945. The maximum number of seats for a provincial Legis-
lative Council was 56 in Madras, 30 in Bombay, 65 in Bengal, 60
in U. P. , 30 in Bihar and 22 in Assam. Out of a total of 56 seats
in Madras, 10 were filled up by the Governor through nomination.
The general seats for Madras, Bombay, Bengal, U. P. , Bihar and
Assam were 35, 20, 10, 34, 9 and 10 respectively. The Muslims
were given 17 seats each in Bihar and U. P. In Bengal and Bihar,
27 and 12 seats were filled by the Legislative Assemblies of those
provinces. Some seats were reserved for Europeans and Indian
Christians. The Provincial Legislative Council was a permanent
body. The tenure of office of members was 9 years and one-third
of them were to retire after
every
3
years.
The age qualification for the membership of the Provincial Legis-
lative Assembly was fixed at 25 and for Legislative Council 30. No
person could become a member of both the Houses of the Legisla-
ture. Residence in the constituency for a certain number of days,
.
usually 180 or 120, was necessary for franchise. The voting quali-
fications varied from province to province. In the case of the
Punjab, the right of voting was given to those who paid an income
tax or a direct municipal tax amounting to not less than Rs. 50 per
year, those who paid land revenue amounting to not less than Rs. 5
per year, those who owned or occupied immovable property of the
rental value of Rs. 60 per year and those who possessed educational
qualifications up to the primary standard.
NATURE OF PROVINCIAL AUTONOMY
It is true that the provincial autonomy as introduced by the
Government of India Act, 1935, was a definite improvement on
the system set up by the Government of India Act, 1919, but it is
not correct to presume that provincial autonomy was intended to
establish a full-fledged responsible government in the provinces. If
that had been the intention, the authors of the Government of
India Act, 1935, would have chosen to use a different terminology.
The fact is that the British Government did not intend to give full
responsible Government in the provinces. This is clear from the
large number of discretionary powers given to the Governors. The
same intention becomes clear when we consider the nature and
extent of the special responsibilities of the Governors. If the Gov-
ernors were expected to play the role of the guardians of the British
interests and other vested interests in India, that was bound to affect
## p. 650 (#690) ############################################
650 CONSTITUTIONAL CHANGES FROM 1919 TO 1969
adversely the position of the ministers. Lord Zetland who was the
Secretary of State for India in 1937, has rightly pointed out that
the British Parliament reserved to itself a potential measure of con-
trol in a certain limited and clearly defined sphere. While perform-
ing their special responsibilities, the Governors were responsible to
the British Parliament for acts of commission and omission. It was
pointed out by critics that provincial autonomy was merely a farce
and far from a living reality. It has also been characterised as
merely a sham.
General elections were held in the beginning of 1937 and in spite
of its criticism of the Government of India Act, 1935, the Indian
National Congress took part in those elections. Jawaharlal Nehru
was the President of the Congress at that time and he made a whirl-
wind tour of the country and carried the message of the Congress
to every nook and corner of the country. The people also respond-
ed to the national call and the result was that the Congress was
able to secure clear majority in 6 provinces, viz. , U. P. , Bihar, Orissa,
Bombay, Madras and C. P. Although the Congress was the largest
single party in the legislatures of Assam, Bengal and the North-
West Frontier Province, on the whole it was in a minority. The
Congress did not do well in the Punjab and Sind. The Unionist
Party in the Punjab was able to secure 106 seats out of a total of
175 and it was not under the thumb of the Muslim League. On
the whole, the Muslim League secured 51 seats out of a total of
485 seats reserved for the Muslims in British India. It was found
that the Muslim League was stronger in the Hindu majority pro-
vinces than in the Muslim majority provinces. The Liberals did
.
not fare well in the elections. The Justice Party was ousted from
power in the Madras Presidency. The Congress got 159 seats and
the Justice Party 21.
It is true that the Congress fought elections and won them but
there was a difference of opinion among the Congressmen with
regard to the future course of action to be adopted. One school
of thought led by Sardar Patel, Dr. Rajendra Prasad and C. Raja-
gopalachariar was in favour of accepting office under the new con-
stitution with the object of strengthening the hands of the Congress
in its struggle for national freedom. The other school led by
Jawaharlal Nehru and Subhas Chandra Bose was not in favour of
accepting office as that was likely to lessen the zeal for its fight for
India's freedom. Mahatma Gandhi intervened and a compromise
was arrived at. The All India Congress Committee passed a resolu-
tion on 30 August 1937 authorising and allowing the “acceptance
of office in the provinces where Congress commands majority in
the legislature, provided that ministerships should not be accepted
## p. 651 (#691) ############################################
FORMATION OF CONGRESS MINISTRIES
651
unless the leader of the Congress party in the legislature is satisfied
and able to state publicly that the Governor will not use his special
powers of interference or set aside the advice of the ministers in
regard to their constitutional activities. "
The Governors were not prepared to act as constitutional heads
and hence refused to give the required assurance to the Congress
party in the Congress majority provinces. Interim ministries were
set up in the Congress majority provinces to carry on the work for
the time being. The minority ministries could not hope to last
long as they could not face the provincial legislative assemblies on
account of the majority being with the Congress. In the non-
Congress provinces, popular ministries began to function from 1
April, 1937. However, the deadlock in the Congress majority pro-
vinces did not last long. Lord Linlithgow, Governor General of
India, declared in a broadcast speech on 21 June 1937 that “There
is no foundation for any suggestion that a Governor is free or is
entitled or would have the power to interfere with the day to day
administration of a province outside the limited range of the res-
ponsibilities resting on him. These special responsibilities are res-
tricted in scope to the narrowest limits possible. Even so limited
as they are, the Governor will at all times be concerned to carry
his ministers with him, while in other spheres in the field of their
ministerial responsibility, it is mandatory on a Governor to be guid-
ed by the advice of his ministers, even though for whatever reasons
he may not be himself wholly satisfied that that advice is in the
circumstances necessarily and decisively the right advice. The
conciliatory speech of the Governor General was welcomed by the
Congress and consequently its Working Committee passed the fol-
lowing resolution at Wardha on 7 July 1937: “The Committee
feels, however, that the situation created as a result of the circum-
stances and events that have since occurred warrants the belief that
it will not be easy for the Governors to use their special powers.
The Committee has resolved that Congressmen be permitted to
accept office where they may be invited thereto, but it desires to
make it clear that the office has to be accepted and utilised for the
purpose of working it in accordance with the lines laid down in the
Congress Election Manifesto and to further in every way the Con-
gress policy of combating the new Act on the one hand and of
prosecuting the constructive programme on the other. ” The resolu-
tion was in fact a turning point in the history of the Congress. So
far it had always been in the opposition but now it decided to take
up the responsibilities of office.
It is said that when the Congress decided to form ministries, the
Muslim League offered to join them on certain terms and conditions
## p. 652 (#692) ############################################
652 CONSTITUTIONAL CHANGES FROM 1919 TO 1969
>
but the Congress decided not to form coalition ministries. There
were many reasons for their decision. The Congress was going to
accept office to carry on the struggle for freedom and to pass con-
structive legislation. In the case of a coalition, there was every
possibility of conflict and friction between the Congress and the
Muslim League members. The Congress was bound to pass legis-
lation in the interests of the peasants and workers and those were
bound to be objected by the vested interests in the Muslim League.
There was always the danger of obstruction and delay. To quote
Jawaharlal Nehru, “There might even be intrigues with the Gov-
ernment over the heads of other ministers. A joint front against
British authority was essential. Any breach in it could be harmful
to our cause. There would have been no binding cement, no com-
mon loyalty, no united objective and individual ministers would
have looked and pulled in different directions. ”
The Congress was not opposed to cooperation from other parties
but it insisted that the Muslim group in the legislature must stop
functioning as a separate group and it must come under the con-
trol and discipline of the Congress High Command. The Muslim
League Parliamentary Board in U. P. should be dissolved and no
candidate should be put up by the Board at any subsequent election.
The Muslim League refused to accept those terms and there the
matter ended.
However, the refusal of the Congress to form coalition ministries
with the Muslim League led to very unfortunate results. Mr. M.
A. Jinnah described the Congress as "drunk with power. ” To quote
Mr. Jinnah, "On the very threshold of what little power and res-
ponsibility is given, the majority community has clearly shown that
Hindustan is for the Hindus. " Hardly the Congress had been in
cffice for a few months, Mr. Jinnah and his lieutenants began to
talk of the atrocities committed on the Muslims in the Congress
majority provinces. The Muslim League appointed an Enquiry
Committee to find out the grievances of the Muslims in Congress
provinces and the report was published towards the end of 1938
and is known as the Pirpur Report. It was declared in the Report
that parliamentary government was not workable in the country.
The Muslims were not given appointments according to their popu-
! ation and importance. “The flag, the anthem, the reverence paid
to Mr. Gandhi, the emphasis laid by the Mahatma himself on cow
protection, all these are evidence of a deliberate and far-reaching
attack on the civic and cultural rights of the Muslim community,
but its most insidio’s feature is the attempt to extend the use of
Hindi at the expense of Urdu. ” The Bihar Working Committee of
the provincial Muslim League also appointed an Enquiry Com-
## p. 653 (#693) ############################################
WORKING OF PROVINCIAL AUTONOMY
653
>
mittee and the report which it submitted is known as the Shareef
Report. In 1939, Fazl-ul-Huq issued a statement to the press
which was embodied later on in a pamphlet entitled “Muslim suffer-
ings under Congress rule. ” Dr. Rajendra Prasad who was the
President of the Congress at that time, challenged Mr. Jinnah to
put all the charges before the Chief Justice of the Federal Court
of India for decision but the offer was refused by Mr. Jinnah. The
view of Sir Harry Haig, Governor of U. P. , was that “In dealing with
communal issues, the ministers had clearly acted with impartiality
and a desire to do what was fair. ” The verdict of Coupland is that
the charges "were not very numerous, considering the vast areas
concerned. Many of them were relatively trivial in character and
similar incidents had been occurring from time to time for many
years past. ”
It must be conceded that the Governors played their part well.
Even Mahatma Gandhi admitted in 1939 that the Governors had
"played the game. ” They did not interfere in the day to day affairs
of the provincial administration and left the initiative in the hands
of the ministers. The latter also tried to remain within the bounds
of the Act and did not give any provocation to the Governors. Sir
Roger Lumbly observed: “The Governor must preserve the spirit
in which the constitution was conceived which was the spirit of self-
government. He must be equipped to discharge the special func-
tions laid on him, but without, as far as he can make it possible,
disturbing that spirit. He has his own contribution to make, if
he can, to the success of the Government and he must remain, im-
partial, a neutral in politics not a protagonist. ” In the case of
Bihar and U. P. , differences arose between the Governor and the
Congress ministries on the question of release of political prisoners.
The Governors refused to release them on the ground that peace
and tranquillity of India as a whole was likely to be disturbed there-
by. When the Governor-General consulted the other provinces,
they also opposed the release of the political prisoners in Bihar and
U. P.
representatives of the depressed classes to the Central Legislature
was postponed as that involved the whole system of representation
at the Centre.
It is true that the Indian National Congress passed a resolution
by which it neither accepted nor rejected the Communal Award,
but the fact remains that there were many defects in it for which
it was condemned by the Indians. It was pointed out that the
Award was unjust to the Hindus and the Sikhs. It maintained the
weightage given to the Muslims in the legislatures in those provin-
ces where they were in a minority. Instead of giving similar
weightage to the Hindus in Bengal, the Award gave them only 32%
of the seats when they actually formed 44. 8% of the total popula-
tion of the province. The Award gave 10% of the total seats in
the Bengal Provincial Legislature to the Europeans who were only
0. 01 per cent of the total population. It is true that the Award
cut down the representation of the Muslims also but the cut in
the case of the Hindus was greater than that of the Muslims. In
the Punjab, the Hindus instead of getting weightage as a minority
community, had their representation cut down to give some weight-
age to the Sikhs. The Sikhs also failed to get the weightage which
the Muslims got in other provinces. No wonder, the Award was
opposed both by the Hindus and the Sikhs. The British Govern-
ment had been proclaiming that they were entirely disinterested in
the matter of communal settlement but it could be pointed out
that it was the British disinterestedness which penalized the Hindus
everywhere. While the Europeans were given 2,50,000 times
weightage in Bengal, the Hindus were not given even that which
was their due on the basis of their population. Mr. Attlee who
later on became the Prime Minister of England in 1945, admitted
that the Communal Award was weighted in favour of the Muslims
and against the Hindus.
Lord Zetland criticized the Communal Award in these words:
“It is one thing to concede separate communal electorate for the
purpose of giving minorities reasonable representation in the vari-
ous legislatures; it is an entirely different thing to employ the sys-
tem for the purpose of conferring upon a majority community in
## p. 639 (#679) ############################################
POONA PACT
639
a
any particular province a permanent majority in the legislature un-
alterable by any appeal to the electorate. Such a course has never
hitherto been adopted. It was considered and rejected by the
Statutory Commission, who declared that a claim submitted to
them which in Bengal and Punjab would give to the Muslim com-
munity a fixed and unalterable majority in the general constituency
seats, was one which they could not entertain; it would be unfair,
they wrote, the Mohammedans should retain the very considerable
weightage they now enjoy in the 6 provinces and that there should
at the same time be imposed, in the face of Hindu and Sikh opposi-
tion, definite majority in the Punjab and the Bengal unalterable
by an appeal to the electorate. "
Dr. Rajendra Prasad who later on became the President of
India, made the following observation on the Communal Award:
“The distribution of seats among the various communities was no
less remarkable. In all discussions about the communal problem,
Bengal and the Punjab presented difficulties. In both these Pro-
vinces, the Mussalmans are in a majority but the majority is a small
one about 55 p. c. In both these provinces it was demanded on
behalf of the Mussalmans that there should be both separate electo-
rate and reservation of seats for them although they happened to
be in a majority. In Bengal the position was complicated by the
desire of the British Government to give a very heavy weightage to
the Europeans while in the Punjab the non-Mohammedans were
divided into Hindus and Sikhs. The Sikhs insisted that, if there
were to be separate electorates and reservations of seats, they as an
important community should be given weightage as Mussalmans
had got in other Provinces where they were in a minority. The
Communal Award maintained with a small variation the propor-
tion of seats given to Mussalmans by the Montagu-Chelmsford Re-
forms in all the Provinces except Bengal and the Punjab. In Ben-
gal, the Hindus were in the minority of 44. 8 per cent of the total
population. They were given only 80 out of 250 seats, i. e. only 32
per cent of the total. The Mussalmans who were 54. 8 per cent of
the population were given 119 seats, i. e. 47. 6 per cent of the total.
The Europeans who were . 01 per cent of the population were given
25 seats, i. e. 10 per cent of the total number of seats. It will thus
appear that the Mussalmans who were in a majority were reduced
to a minority in the representation and the Hindus who were in a
minority were deprived even of their due proportion—in order to
give a very heavy weightage of 2,50,000 times to the Europeans.
What is noteworthy is that although the representation of both
Muslims and Hindus was reduced, the cut was greater in the Hindus'
representation. In other words, unlike other Provinces weightage
## p. 640 (#680) ############################################
640 CONSTITUTIONAL CHANGES FROM 1919 TO 1969
was given to the smallest community not out of the majority com-
munity alone but out of another minority which was required not
only to give up any weightage which it might feel entitled to as a
minority but also to make a greater sacrifice proportionately than
the majority community. In the Punjab also to give weightage to
the Sikhs, the Hindus were required to give up a portion of their
representation, although they were in a minority and would be
entitled to weightage according to ordinary canons of fairness and
justice. It may also be noted that in both these Provinces, the
Award reduced the Muslim representation to such an extent as to
make it a minority of the total, although they still constituted the
largest group in the Legislative Assembly and had those seats re-
served for them, to be filled through separate electorates. No
wonder the Award was assailed with great vehemence by the Hindus
who were required to make sacrifices in the Provinces where they
were in majority and also in the Provinces where they were in a
minority, and in Bengal the sacrifice that was imposed was propor-
tionately much greater-nearly double--than that required of the
majority community. ” (India Divided, pp. 129-30).
THIRD ROUND TABLE CONFERENCE
The Third Round Table Conference was called by the British
Government rather reluctantly as it was of the opinion that the rest
of the work could be done in India. The result was that the ses-
sion of the Third Round Table Conference lasted from November
17, 1932 to December 24, 1932. The Labour Party did not parti-
cipate in its deliberations and the Indian National Congress was
unrepresented. The delegates to the Conference merely discussed
the Reports of the various committees appointed by the Second
Round Table Conference and decided a few more points.
THE WHITE PAPER (1933)
When the whole scheme regarding the future constitution of
India was thrashed out, the Biitish Government issued in March
1933 a small document known as the White Paper. It gave in
detail the working basis of the new Indian Constitution with
dyarchy at the Centre and a responsible Government in the provin-
ces. As was to be expected, the White Paper was condemned by the
Indian public opinion, but the British Government went on with its
programme.
In April 1933, a Joint Select Committee was appointed to exa-
mine and report on the Government proposals as contained in the
## p. 641 (#681) ############################################
GOVERNMENT OF INDIA ACT, 1935
641
White Paper. The Committee consisted of 16 members each from
the House of Commons and House of Lords and its Chairman was
Lord Linlithgow. The Committee invited representatives from
British India and Indian States. After examining many witnesses
and going through the memoranda received from the Indian Asso-
ciation, the British India delegations, Sir Tej Bahadur Sapru, Shri
M. R. Jayakar and other prominent individuals, the Joint Select
Committee submitted its report on November 22, 1934. Although
it did not alter the fundamentals as given in the White Paper, it
recommended many changes in the structure of the Provincial and
Federal Legislatures and other matters also.
When the Reforms scheme was thoroughly discussed and given
the shape by the Joint Select Committee, a Bill was drafted on those
lines and introduced in the House of Commons on February 5,
1935. Sir Samuel Hoare, Secretary of State for India, was in-
charge of the Bill which was severely criticised by the Labour Party
for its limited scope.
The Labour members tried to amend the
Bill in such a way as to recommend explicitly India's right to
Dominion Status. The diehards led by Winston Churchill tried to
introduce reactionary elements into the Bill. However, the Govern-
ment went on with its own scheme which was passed by the House
of Commons on June 4, 1935. The Bill was introduced in the
House of Lords on June 6, 1935 and was passed in July, 1935.
Here also the efforts of the Labour members to liberalise the Bill
failed.
As the Government had made many amendments in the
Bill at this stage, the Bill had to be sent back to the House of Com-
mons which accepted the proposed amendments. The Bill received
the Royal assent on August 2, 1935 as the Government of India
Act, 1935.
GOVERNMENT OF INDIA ACT, 1935
The Act provided for an All-India Federation. The question of
a federation for India had presented a peculiar problem on account
of the disparity between the Indian States and the provinces of
British India. The Indian States were under the complete control
of the Political Department of the Government of India. On the
other hand, the provinces had some sort of a democratic Govern-
The Act provided that all the provinces were to join the
Indian Federation automatically. Entry into the Federation was
to be a voluntary act on the part of the ruler of each State, how-
ever small and insignificant his State might be. At the time of
joining the Federation, the ruler of the State was to execute an
Instrument of Accession in favour of the Crown. On the accept-
ment.
## p. 642 (#682) ############################################
642 CONSTITUTIONAL CHANGES FROM 1919 TO 1969
ance of that Instrument, the State was to become a unit of the
Federation. The Crown was forbidden to accept an Instrument
of Accession if its terms appeared to be inconsistent with the scheme
of the Federation. While the provinces were to be alike in respect
of the position and quantum of legislative and executive powers in
the Federation, the States were to differ regarding the extent of
their powers in the Federation. The extent of the federal jurisdic-
tion in the States was to depend solely upon the transfers made by
their respective rulers through their Instrument of Accession. The
Instrument was to authorise the various federal authorities to exer-
cise their respective functions under the Act in relation to a particu-
lar State. It was to be the duty of the ruler of the State to see that
due effect was given within his State to the provisions of the Act
in so far as those provisions were made applicable by virtue of the
Instrument. The ruler was authorised to extend the functions of
the federal authority in respect of his State by another Instrument,
but no subsequent Instrument could decrease the scope of the
authority of the Federation as provided by the original Instrument
of Accession.
The Indian States were to send 125 members to the Federal
Assembly and 104 members to the Council of State. The provin-
ces were to send 250 members to the Federal Assembly and 156
members to the Council of State. The members from the Indian
States were to be nominated by the rulers but those from the pro-
vinces were to be elected on communal lines. The functions of the
Crown with regard to Indian States were to be performed in India
by his representative who was the Viceroy himself.
The Indian Federation as provided by the Government of India
Act, 1935, was different from the other federal systems. There
was no simple division of powers between the Centre and the units.
The Act provided for 3 Lists: Federal List, Provincial List and
Concurrent List. The Federal Government was authorised to pass
laws on the subjects given in the Federal List. The subjects given
in the Provincial List were within the exclusive jurisdiction of the
Provincial Legislature. As regards the Concurrent List, both the
Federal Legislature and the Provincial Legislatures could pass laws
on the subjects given in that List. However, if a law was passed
by the Federal Legislature on any subject given in the Concurrent
List, the Provincial legislature could not make laws on the same
subject afterwards. As regards the residuary powers, the Governor-
General in his discretion was given the power to decide as to which
of the 3 Lists a particular subject was to be allotted.
The Act provided for dyarchy at the Centre. Certain federal
subjects were reserved in the hands of the Governor-General to be
## p. 643 (#683) ############################################
GOVERNMENT OF INDIA ACT, 1935
643
administered by him with the assistance of not more than 3 Coun-
sellors to be appointed by him. Those subjects were Defence, Ex-
ternal Affairs, Ecclesiastical Affairs and the administration of tribal
areas. In the administration of other federal subjects, the Gover-
nor-General was to be aided and advised by a Council of Ministers
whose number was not to exceed 10. The federal ministry was to
administer all the federal departments except the above mentioned
reserved departments. The federal ministry was to be formed on
the usual cabinet lines except that it was to include the representa-
tives of the important minorities. The Governor-Gerineral was
instructed by means of an Instrument of Instructions to secure such
representation to the best of his ability. In spite of the composite
character of the ministry, responsibility was to be collective. The
ministry was to be responsible to the federal legislature.
The Governor-General was required to act in three different
capacities. Ordinarily, he was to act on the advice of his ministers
with regard to all subjects other than the reserved subjects. When
he acted on the advice of the ministers, he acted as a constitutional
head. He was also required to act in his individual judgment.
When he did so, he was required to consult his ministers but it was
not binding on him to act upon their advice. The Governor-
General acted in his individual judgment while performing his
special responsibilities. Those were the safeguarding of the finan-
cial stability and credit of India, prevention of any grave menace
to the peace and tranquillity of India or any part of India, safe-
guarding of the legitimate interests of the minorities, the legitimate
rights of the public servants and their dependents and the interests
of the Indian States and the dignity of their rulers, prevention of
commercial discrimination and discriminatory taxation against
goods of British origin or Burmese origin and the securing of the
due discharge of his discretionary powers.
While acting in his discretion, the Governor-General was not re-
quired even to consult his ministers and the question of acting upon
their advice did not arise at all. While doing so, he could act in
an arbitrary manner. The Governor-General acted in his discre-
tion while administering the reserved departments of Defence, Ex-
ternal Affairs, Ecclesiastical Affairs and the tribal areas. He also
acted in the same capacity while appointing the 3 Counsellors.
He appointed and dismissed his ministers and presided over their
meetings in his discretion. In the same capacity, he was authoriş-
ed to issue two kinds of ordinances. One type of ordinance could
be issued by him at any time and that lasted for 6 months. The
other type of ordinance was to be issued only when the Legislature
was not sitting. The Governor-General was given the power to
## p. 644 (#684) ############################################
644 CONSTITUTIONAL CHANGES FROM 1919 TO 1969
issue what were known as Governor-General's Acts. But those Acts
had to be forwarded to the Secretary of State. The previous sanc-
tion of the Governor-General in his discretion was required for the
introduction of certain bills in the federal Legislature and the Pro-
vincial Legislatures. He was authorised to stop the discussion of
any Bill at any time by the Legislature. He could withhold his
assent to a bill passed by the Legislature or send the same back for
reconsideration or reserve the same for the consideration of His
Majesty. He was given control over about 80% of the federal
budget. The non-votable items of the budget formed a major part
of the budget. He could, in his discretion, send any instructions to
the Governors and it was the special responsibility of the Governors
to carry them out. He could suspend the Constitution in his dis-
cretion. He was given the authority to summon, prorogue or dis-
solve the Federal Assembly. He could summon both Houses for a
joint sitting. He could address the Legislature or send messages re-
garding a certain bill.
The Federal Legislature was to be bicameral consisting of the
Federal Assembly and the Council of State. The Federal Assembly
was to have a life of 5 years from the date of its first meeting. On
the expiry of that period, it was automatically dissolved. How-
ever, the Governor-General was given the power to extend its life.
The Council of State was to be a permanent body of which 1/3rd
members were to retire after every 3 years. The members from the
States were to be nominated by the rulers. The representatives from
British India were to be elected. The Hindu, Muslim and Sikh
members were to be elected on communal lines. While the mem-
bers of the Council of State were to be directly elected, those of the
Federal Assembly were to be indirectly elected.
The powers of the Indian Legislature were severely restricted.
There were certain subjects on which neither the Federal Legisla-
ture nor the Provincial Legislatures could legislate. The Indian
Legislatures was debarred from making any law affecting the
Sovereign or the Royal family or the succession to the throne or
suzerainty of the Crown over any part of India or law of British
nationality or the Army Act, the Air Force Act or the Law of Prize
Courts. The Indian Legislatures could not make any law amend-
ing any of the provisions of the Government of India Act, 1935 or
any Order-in-Council made under it or any rules made thereunder
by the Secretary of State or the Governor-General or a Governor
in his discretion or in the exercise of his individual judgment. It
could not make any law affecting the prerogative right of the
Crown to grant special leave to appeal to the Privy Council except
in so far as that was expressly permitted by the Act. It could not
## p. 645 (#685) ############################################
GOVERNMENT OF INDIA ACT, 1935
645
make any legislation which discriminated against the British inter-
ests in commercial and other spheres. There were a large number
of subjects of vital importance on which initiation of legislation re-
quired previous sanction of the Governor-General. There were
many non-votable items in the Budget over which the Federal Legis-
lature had absolutely no control. If any item of the budget was
rejected by the Federal Assembly, the same could be put before
the Council of State if the Governor-General so directed. If the
two Houses of the Federal Legislature differed with respect of any
demand, the Governor-General was required to summon a joint
sitting for voting on that demand and the decision of the majority
was to prevail. The Governor-General was given the power to
summon a joint sitting of the two Houses of the Federal Legisla-
ture, when a bill passed by one House was rejected by the other or
was amended in a form to which the first House was not agree-
able. After a bill was passed by both the Houses of Federal Legis-
lature, the Governor-General, in his discretion, could assent to it
or veto it or send it back for reconsideration or reserve it for His
Majesty's consideration. The Act assented to by the Governor-
General could be disallowed within a year by the King-in-Council.
The Act provided for the establishment of a Federal Court of
India with jurisdiction over the States and the provinces. The
Court was to consist of a Chief Justice and two puisne Judges. It
was given both original and appellate powers. It was the duty of
the Federal Court to interpret the Constitution and to see that the
provinces and the Federal Legislature acted within the spheres re-
served for them by the Act. However, the last word in that matter
was to be said by the Privy Council sitting in London.
The Act abolished the India Council of the Secretary of State.
This body had been set up in 1858 to assist the Secretary of State
for India in the discharge of his duties. However, there had been
a lot of criticism about its composition and its actual role and conse-
quently the same was abolished by the new Act. The Secretary
of State was to be assisted in future by an advisory body consisting
of not less than 3 and not more than 6 Advisers. At least half of
those Advisers were to be those persons who had held office in
India for at least 10 years and who had not left India for more
than 2 years at the time of their appointment. They were to hold
office for 5 years only. They could not sit in Parliament. Their
function was advisory and as a rule, the Secretary of State was
required to secure the concurrence of at least one-half of the advi-
sers. The Act provided that "It shall be in the discretion of the
.
Secretary of State whether or not he consult his advisers in any
matter, and if so, whether he consults them individually and
## p. 646 (#686) ############################################
646 CONSTITUTIONAL CHANGES FROM 1919 TO 1969
whether or not he acts in accordance with any advice given to him
by them. ”
The position of the Governor under the new Act resembled that
of the Governor-General although it differed a little on account
of the introduction of provincial autonomy. The Governor-Gene-
ral was required to act in 3 different capacities. Ordinarily, he
was to act according to the advice of his ministers. When he did
so, he acted as a constitutional head and his position could be
compared to the Lieutenant-Governor of a Canadian province. He
was also authorised to act in his individual judgment. While doing
so, he had to listen to the advice of his ministers but it was up to
him to accept their advice or not. He acted in his individual
judgment while performing his special responsibilities which were
the prevention of any grave menace to the peace and tranquillity
of the province or any part of it, safeguarding the rights and legiti-
mate interests of the public servants and their deper:dents, the
rights and interests of the Indian states and the dignity of their
rulers and the legitimate interests of the minorities, administration
of partially excluded areas, prevention of commercial discrimination
against Englishmen and their goods and the execution of the orders
and directions of the Governor-General issued by him in his discre-
tion. It was the duty of the Governor of C. P. to see that a reason-
able share of the provincial revenues was spent for the benefit of
the people of Berar. Likewise, it was the duty of the Governor
of Sind to secure the proper administration of the Lloyd Barrage
and Canals' Scheme.
The Governor was to act in his discretion in the following cases.
He was to appoint and dismiss ministers. This was a very subs-
tantial power and it was actually exercised by the Governors of
Bengal and the North-West Frontier Provinces to exclude one party
and keep the other party in power. He was to preside over the
meetings of the Council of Ministers. While doing so, he could
influence the deliberations and conclusions of the ministers. That
was particularly due to his great administrative experience. He
could issue two kinds of ordinances. One kind of ordinance could
be issued by him at any time and that lasted for 6 months. The
other type of ordinance was to be issued only when the Legislature
was not sitting.
The Governor could also issue what were known
as Governor's Acts. In certain cases, the previous sanction of the
Governor was required for the introduction of certain bills in the
Provincial Legislature. He could stop the discussion of any bill
in the Legislature at any time. Even when the bill was passed,
he could veto it or send the same back for reconsideration by the
Legislature. He could reserve a bill for the assent of the Governor-
## p. 647 (#687) ############################################
GOVERNMENT OF INDIA ACT, 1935
647
General. He appointed the members of the Provincial Public
Service Commission. He was given many powers regarding the
police force and also the authority to suppress the terrorists. The
Governor was to decide which items of expenditure were to be
regarded as "expenditure charged upon revenues of the province.
Those items were taken out of the control of the legislature. The
non-votable items formed about 40% of the budget.
the budget. If the whole
or any part of the budget was rejected, the Governor was given
the authority to restore the same. Under section 93 of the Act, a
Governor could suspend the Constitution and take over the admin-
istration of the province in his own hands.
The position of the provincial ministers under the new Act was
certainly superior to that under the old Act. There were no re-
served Departments and the Governor was expected to carry on
the administration of the province according to the advice of the
ministers. It was laid down in the Instrument of Instructions that
the Governor was to summon that person to form the ministry who
could be expected to command a majority in the Provincial Legisla-
ture. The other ministers were to be appointed by the Governor
on the advice of the Chief Minister. It was the duty of the Gover-
nor to see that minorities were given representation in the ministry.
If a person was not a member of the Legislature at the time of his
appointment, he was to get himself elected within 6 months of his
appointment. The Governors were instructed to encourage collec-
tive responsibility among the ministers. They were allowed to pre-
side over the meetings of the Council of Ministers.
However, it cannot be denied that the powers of the ministers
were limited. They did not enjoy complete autonomy in the pro-
vincial field. The enormous powers of the Governor were respon-
sible for the weakness of the position of the ministers. The Gover-
nor had many legislative powers and those powers naturally restrict-
ed the legislative control of the ministers. He may not allow a
particular bill to be introduced in the Legislature. He may veto
a bill which had been passed by the Legislature on the initiative of
the ministry. He may stop the discussion of any bill at any time.
The issuing of ordinances and Governor's Acts also limited the
legislative scope of the ministers. The same could be said about
finance. The ministers were not given a free hand in the matter
of proposing new taxes. A Governor may not give his sanction to
a bill for that purpose. The ministers had no control over 40%
of the budget which was non-votable. A Governor could dismiss
the ministers and that was actually done in many cases. Fazl-ul-
Haq, the Chief Minister of Bengal, was unceremoniously dismissed
by the Governor in 1943. Alla Bux, the Chief Minister of Sind,
## p. 648 (#688) ############################################
648 CONSTITUTIONAL CHANGES FROM 1919 TO 1969
was dismissed because he gave up the title of Khan Bahadur. The
Governor of the Punjab dismissed Shaukat Hayat Khan.
Different views were expressed regarding the position of the
ministers under the Act of 1935. The view of Lord Zetland was:
“Let it not be supposed that the field of Government is to be divid-
ed into two parts, in which the Governor and the ministry operate
separately at the risk of clashes between them. The essence of the
new constitution is that the initiative and responsibility for the
whole of the Government of province, though in form vesting in
the Governor, passes to the ministry as soon as it takes office. ” Sir
Maurice Hallet, Governor of U. P. , says: “After all, the relations
of a Governor with his ministers were not those of a master and
his servants; rather they are partners in a common enterprise—the
good government of the province. ” The true position was that the
actual position of the ministry depended upon its party strength in
the Legislature and the personality of the members who constituted
the ministry. In the last analysis, much depended upon the perso-
nal equation.
The Government of India Act, 1935, did not set up Provincial
Legislatures of a uniform pattern. The six provinces of Assam,
Bengal, Bihar, U. P. , Madras and Bombay were given two chambers
each, while the legislatures of the Punjab, Sind, North-West Frontier
Province, Orissa and C. P. had only one chamber. Where there
were two chambers, their names were the Provincial Legislative
Assembly and Provincial Legislative Council. Where there was
only one house, it was merely the Provincial Legislative Assembly.
While all the members of the Assembly were elected, some of the
members of the Council were nominated. The size of the Provin-
cial Assemblies varied from province to province. It was 215 for
Madras, 175 for Bombay and Punjab, 250 for Bengal, 228 for U. P. ,
152 for Bihar, 112 for C. P. and Berar, 108 for Assam, 50 for North-
West Frontier Province and 60 each for Orissa and Sind. The
seats in the various provinces were distributed according to the
Communal Award as amended by the Poona Pact. Some seats
were known as general seats out of which some were reserved for
the scheduled castes. Separate representation on communal lines
was given to the Muslims, Sikhs, Anglo-Indians, Europeans and the
Indian Christians. Some seats were reserved for commerce, indus-
try, mining and plantation, land-holders, labour and universities.
Europeans in Bengal were given the highest representation. The
land-holders both in U. P. and Madras got 6 seats each. 90 seats
were given in Bengal to commerce, industry, mining and plantation.
In Bengal, out of a total of 78 seats given to the Hindus, 30 were
reserved for the scheduled castes. The life of the Assembly was fix:
## p. 649 (#689) ############################################
NATURE OF PROVINCIAL AUTONOMY
649
ed at 5 years but the same could be dissolved earlier. It could also
be extended beyond the period of 5 years. The first general elec-
tions were held in 1937 and the next elections were held not earlier
than 1945. The maximum number of seats for a provincial Legis-
lative Council was 56 in Madras, 30 in Bombay, 65 in Bengal, 60
in U. P. , 30 in Bihar and 22 in Assam. Out of a total of 56 seats
in Madras, 10 were filled up by the Governor through nomination.
The general seats for Madras, Bombay, Bengal, U. P. , Bihar and
Assam were 35, 20, 10, 34, 9 and 10 respectively. The Muslims
were given 17 seats each in Bihar and U. P. In Bengal and Bihar,
27 and 12 seats were filled by the Legislative Assemblies of those
provinces. Some seats were reserved for Europeans and Indian
Christians. The Provincial Legislative Council was a permanent
body. The tenure of office of members was 9 years and one-third
of them were to retire after
every
3
years.
The age qualification for the membership of the Provincial Legis-
lative Assembly was fixed at 25 and for Legislative Council 30. No
person could become a member of both the Houses of the Legisla-
ture. Residence in the constituency for a certain number of days,
.
usually 180 or 120, was necessary for franchise. The voting quali-
fications varied from province to province. In the case of the
Punjab, the right of voting was given to those who paid an income
tax or a direct municipal tax amounting to not less than Rs. 50 per
year, those who paid land revenue amounting to not less than Rs. 5
per year, those who owned or occupied immovable property of the
rental value of Rs. 60 per year and those who possessed educational
qualifications up to the primary standard.
NATURE OF PROVINCIAL AUTONOMY
It is true that the provincial autonomy as introduced by the
Government of India Act, 1935, was a definite improvement on
the system set up by the Government of India Act, 1919, but it is
not correct to presume that provincial autonomy was intended to
establish a full-fledged responsible government in the provinces. If
that had been the intention, the authors of the Government of
India Act, 1935, would have chosen to use a different terminology.
The fact is that the British Government did not intend to give full
responsible Government in the provinces. This is clear from the
large number of discretionary powers given to the Governors. The
same intention becomes clear when we consider the nature and
extent of the special responsibilities of the Governors. If the Gov-
ernors were expected to play the role of the guardians of the British
interests and other vested interests in India, that was bound to affect
## p. 650 (#690) ############################################
650 CONSTITUTIONAL CHANGES FROM 1919 TO 1969
adversely the position of the ministers. Lord Zetland who was the
Secretary of State for India in 1937, has rightly pointed out that
the British Parliament reserved to itself a potential measure of con-
trol in a certain limited and clearly defined sphere. While perform-
ing their special responsibilities, the Governors were responsible to
the British Parliament for acts of commission and omission. It was
pointed out by critics that provincial autonomy was merely a farce
and far from a living reality. It has also been characterised as
merely a sham.
General elections were held in the beginning of 1937 and in spite
of its criticism of the Government of India Act, 1935, the Indian
National Congress took part in those elections. Jawaharlal Nehru
was the President of the Congress at that time and he made a whirl-
wind tour of the country and carried the message of the Congress
to every nook and corner of the country. The people also respond-
ed to the national call and the result was that the Congress was
able to secure clear majority in 6 provinces, viz. , U. P. , Bihar, Orissa,
Bombay, Madras and C. P. Although the Congress was the largest
single party in the legislatures of Assam, Bengal and the North-
West Frontier Province, on the whole it was in a minority. The
Congress did not do well in the Punjab and Sind. The Unionist
Party in the Punjab was able to secure 106 seats out of a total of
175 and it was not under the thumb of the Muslim League. On
the whole, the Muslim League secured 51 seats out of a total of
485 seats reserved for the Muslims in British India. It was found
that the Muslim League was stronger in the Hindu majority pro-
vinces than in the Muslim majority provinces. The Liberals did
.
not fare well in the elections. The Justice Party was ousted from
power in the Madras Presidency. The Congress got 159 seats and
the Justice Party 21.
It is true that the Congress fought elections and won them but
there was a difference of opinion among the Congressmen with
regard to the future course of action to be adopted. One school
of thought led by Sardar Patel, Dr. Rajendra Prasad and C. Raja-
gopalachariar was in favour of accepting office under the new con-
stitution with the object of strengthening the hands of the Congress
in its struggle for national freedom. The other school led by
Jawaharlal Nehru and Subhas Chandra Bose was not in favour of
accepting office as that was likely to lessen the zeal for its fight for
India's freedom. Mahatma Gandhi intervened and a compromise
was arrived at. The All India Congress Committee passed a resolu-
tion on 30 August 1937 authorising and allowing the “acceptance
of office in the provinces where Congress commands majority in
the legislature, provided that ministerships should not be accepted
## p. 651 (#691) ############################################
FORMATION OF CONGRESS MINISTRIES
651
unless the leader of the Congress party in the legislature is satisfied
and able to state publicly that the Governor will not use his special
powers of interference or set aside the advice of the ministers in
regard to their constitutional activities. "
The Governors were not prepared to act as constitutional heads
and hence refused to give the required assurance to the Congress
party in the Congress majority provinces. Interim ministries were
set up in the Congress majority provinces to carry on the work for
the time being. The minority ministries could not hope to last
long as they could not face the provincial legislative assemblies on
account of the majority being with the Congress. In the non-
Congress provinces, popular ministries began to function from 1
April, 1937. However, the deadlock in the Congress majority pro-
vinces did not last long. Lord Linlithgow, Governor General of
India, declared in a broadcast speech on 21 June 1937 that “There
is no foundation for any suggestion that a Governor is free or is
entitled or would have the power to interfere with the day to day
administration of a province outside the limited range of the res-
ponsibilities resting on him. These special responsibilities are res-
tricted in scope to the narrowest limits possible. Even so limited
as they are, the Governor will at all times be concerned to carry
his ministers with him, while in other spheres in the field of their
ministerial responsibility, it is mandatory on a Governor to be guid-
ed by the advice of his ministers, even though for whatever reasons
he may not be himself wholly satisfied that that advice is in the
circumstances necessarily and decisively the right advice. The
conciliatory speech of the Governor General was welcomed by the
Congress and consequently its Working Committee passed the fol-
lowing resolution at Wardha on 7 July 1937: “The Committee
feels, however, that the situation created as a result of the circum-
stances and events that have since occurred warrants the belief that
it will not be easy for the Governors to use their special powers.
The Committee has resolved that Congressmen be permitted to
accept office where they may be invited thereto, but it desires to
make it clear that the office has to be accepted and utilised for the
purpose of working it in accordance with the lines laid down in the
Congress Election Manifesto and to further in every way the Con-
gress policy of combating the new Act on the one hand and of
prosecuting the constructive programme on the other. ” The resolu-
tion was in fact a turning point in the history of the Congress. So
far it had always been in the opposition but now it decided to take
up the responsibilities of office.
It is said that when the Congress decided to form ministries, the
Muslim League offered to join them on certain terms and conditions
## p. 652 (#692) ############################################
652 CONSTITUTIONAL CHANGES FROM 1919 TO 1969
>
but the Congress decided not to form coalition ministries. There
were many reasons for their decision. The Congress was going to
accept office to carry on the struggle for freedom and to pass con-
structive legislation. In the case of a coalition, there was every
possibility of conflict and friction between the Congress and the
Muslim League members. The Congress was bound to pass legis-
lation in the interests of the peasants and workers and those were
bound to be objected by the vested interests in the Muslim League.
There was always the danger of obstruction and delay. To quote
Jawaharlal Nehru, “There might even be intrigues with the Gov-
ernment over the heads of other ministers. A joint front against
British authority was essential. Any breach in it could be harmful
to our cause. There would have been no binding cement, no com-
mon loyalty, no united objective and individual ministers would
have looked and pulled in different directions. ”
The Congress was not opposed to cooperation from other parties
but it insisted that the Muslim group in the legislature must stop
functioning as a separate group and it must come under the con-
trol and discipline of the Congress High Command. The Muslim
League Parliamentary Board in U. P. should be dissolved and no
candidate should be put up by the Board at any subsequent election.
The Muslim League refused to accept those terms and there the
matter ended.
However, the refusal of the Congress to form coalition ministries
with the Muslim League led to very unfortunate results. Mr. M.
A. Jinnah described the Congress as "drunk with power. ” To quote
Mr. Jinnah, "On the very threshold of what little power and res-
ponsibility is given, the majority community has clearly shown that
Hindustan is for the Hindus. " Hardly the Congress had been in
cffice for a few months, Mr. Jinnah and his lieutenants began to
talk of the atrocities committed on the Muslims in the Congress
majority provinces. The Muslim League appointed an Enquiry
Committee to find out the grievances of the Muslims in Congress
provinces and the report was published towards the end of 1938
and is known as the Pirpur Report. It was declared in the Report
that parliamentary government was not workable in the country.
The Muslims were not given appointments according to their popu-
! ation and importance. “The flag, the anthem, the reverence paid
to Mr. Gandhi, the emphasis laid by the Mahatma himself on cow
protection, all these are evidence of a deliberate and far-reaching
attack on the civic and cultural rights of the Muslim community,
but its most insidio’s feature is the attempt to extend the use of
Hindi at the expense of Urdu. ” The Bihar Working Committee of
the provincial Muslim League also appointed an Enquiry Com-
## p. 653 (#693) ############################################
WORKING OF PROVINCIAL AUTONOMY
653
>
mittee and the report which it submitted is known as the Shareef
Report. In 1939, Fazl-ul-Huq issued a statement to the press
which was embodied later on in a pamphlet entitled “Muslim suffer-
ings under Congress rule. ” Dr. Rajendra Prasad who was the
President of the Congress at that time, challenged Mr. Jinnah to
put all the charges before the Chief Justice of the Federal Court
of India for decision but the offer was refused by Mr. Jinnah. The
view of Sir Harry Haig, Governor of U. P. , was that “In dealing with
communal issues, the ministers had clearly acted with impartiality
and a desire to do what was fair. ” The verdict of Coupland is that
the charges "were not very numerous, considering the vast areas
concerned. Many of them were relatively trivial in character and
similar incidents had been occurring from time to time for many
years past. ”
It must be conceded that the Governors played their part well.
Even Mahatma Gandhi admitted in 1939 that the Governors had
"played the game. ” They did not interfere in the day to day affairs
of the provincial administration and left the initiative in the hands
of the ministers. The latter also tried to remain within the bounds
of the Act and did not give any provocation to the Governors. Sir
Roger Lumbly observed: “The Governor must preserve the spirit
in which the constitution was conceived which was the spirit of self-
government. He must be equipped to discharge the special func-
tions laid on him, but without, as far as he can make it possible,
disturbing that spirit. He has his own contribution to make, if
he can, to the success of the Government and he must remain, im-
partial, a neutral in politics not a protagonist. ” In the case of
Bihar and U. P. , differences arose between the Governor and the
Congress ministries on the question of release of political prisoners.
The Governors refused to release them on the ground that peace
and tranquillity of India as a whole was likely to be disturbed there-
by. When the Governor-General consulted the other provinces,
they also opposed the release of the political prisoners in Bihar and
U. P.
