India has a long history of being in contact with and being invaded by foreigners. In the early years of the indigenous civilisation the Aryans invaded India and as a result the indigenous people were marginalised. Then some centuries later came the time when India would be invaded by Muslim rulers from the neighbourhood. Then after some time the British came to India as traders. They soon realised that India could serve as a good market for their finished goods and also as a source for cheap raw material and labour. They saw that the Mughal control over India was in decline, smaller provinces were struggling for independence from the Mughal rule and that they could capture India to serve their needs if they wished. The various provinces were being administered in many different ways by their rulers. Due to this there was a plethora of laws and systems of administration in various areas. Adding to this confusion were the many different religions and their religious laws which differed from each other in varying degrees. They set about reforming the law in the area of criminal law and punishment. They tried to reform the personal laws of the various religions. For example, they abolished the practice of sati and made it unlawful. They tried to prevent child marriages. But after a period of time, their way of functioning started to alarm the Indians who felt that the British were out to destroy their culture and their way of life. This gave rise to the ideal of Indian nationalism. This proved a major uniting factor and the emergence of leaders like Gandhi and Nehru and of organisations like the Home Rule League and the Indian National Congress helped this ideal gain currency. Due to this the British had to make a show of caring for these people. This translated into steps like the Government of India Act of 1919 which provided for a bicameral legislature at the centre, the council of state and the legislative assembly. But the people were dissatisfied. Demands for further reforms were raised. This led to the appointment of the Simon Commission which came to India in 1929. And this culminated in an all- party conference which led to the preparation of the Motilal Nehru Report in 1928. This report demanded Dominion status for India and was meant to be a challenge to the British Government in the framing of a constitution and determining its basic principles. After this the Government of India Act was enacted in 1935. This was to be the working Constitution of India under the British rule. This Act contained features which were supposed to provide for increased participation of Indians in decision- making but in reality did nothing to take India towards the goal of eventually becoming an independent nation. And this state of affairs continued till 1950, when the new Constitution of India was adopted. This Constitution brought changes which in some cases were a sharp departure from the Government of India Act, such as there being no provision for separate electorates etc. It is in this context that the paper analyses whether the Constitution of free India was a counterpoint to the Government of India Act of 1935.
SITUATION BEFORE THE GOVERNMENT OF INDIA ACT, 1935 CAME INTO BEING
After the First War of Independence the political control of India passed from the hands of the East India Company to the British Crown. And from now on the British Parliament started making legislations directly for the administration of India. One of the more important legislations enacted by the British before now was the Indian Councils Act of 1861  . This Act restored the power of the governments of Madras and of Bombay to make legislations. It also brought changes in the composition of the Governor- General’s Council for executive and legislative purposes. Now the council got a fifth ordinary member for executive purposes. For legislative purposes, additional members (between six and twelve) were to be nominated by the Governor- General and they were to hold office for a period of two years. This council’s functions were limited to enacting legislative measures. And the Governor- General was given the power to issue ordinances in an emergency without referring to the council which could remain in force for a period of six months. And the Indian Councils Act of 1869 extended the legislative powers of the Governor- General- in- Council by authorising it make laws for all native Indian subjects of Her Majesty in any part of the world  . And by the Government of India Act of 1870 power was provided to the Governor- General to legislate in a summary way for the less developed and unimportant parts of the country. These and various other legislations were enacted in this period. But these legislations were not adequate to provide for the needs of the country. Rather they contrived to keep power in the hands of the British and fleece the Indians. This led to a growing feeling of discontent amongst the Indians which was reflected in the opinions of the Indian newspapers of the day. Then in 1985 came the development which was to have a profound influence on the history of our nation; the formation of the Indian National Congress. Initially the Indian National Congress had as its objective co-operating with the British government to bring about reforms in the Indian scenario by constitutional means. And the then Viceroy of India also took the formation of the Congress as a welcome step. And the passage of the Indian Councils Act of 1892 was a response to the dissatisfaction shown by the Congress. This Act increased the number of additional members of the Council of Governor- General to between ten and sixteen. For the nomination of the members, people chosen by election could also be appointed if election were possible in any area. Also the councils were enabled to discuss the financial statement. And members were also given the right to ask questions on matters of public interest  . Then in 1905 came the proposal of division of Bengal which helped unite people against the British. And now the Congress adopted the tools of boycott of foreign goods and adoption of indigenously made goods to put its point across. This period also marked the formation of extremist and revolutionary groups. To counter the feelings of popular discontent the Indian Councils Act of 1909 was brought in, popularly known as the Morley- Minto Reforms. The Act brought changes in the composition of the India Council of the Secretary of State for India, the Viceroy’s Executive Council and the various Legislative Councils in India. Two Indians were made members of the India Council. One Indian was made the Law member of the Viceroy’s Executive Council. The Imperial Council now had a substantial number of official members but it was not equal to the number of non- official members. And the electorates created under this Act came under three classes: general electorates (consisting of non- official members of the Provincial Councils or of Municipal and District Boards); class electorates (landholders’ constituencies and Mohammedan electorates); and special electorates (consisting of universities, chambers of commerce etc.). And the Central and provincial governments were empowered to make rules for extending the business of the Legislative Councils  .
In an attempt to remove the defects of the Morley- Minto scheme, the Government of India Act was brought about in 1919, popularly called the Montagu- Chelmsford Reforms  . This Act was supposed to make the Indians acquainted with responsible governance. Under this Act the matters on which the provincial and the central governments could legislate and act were divided into two categories of central and provincial subjects. And the provincial heads of governance were divided into the “transferred” and the “reserved” subjects. But even the provincial governments were not free to legislate on certain matters for which their legislations were made subject to the legislation and they had to take the prior permission of the Governor- General to legislate on such subjects. The principle of adult suffrage was not applied completely but was applied with some qualifications for voters. This Act was supposed to provide some autonomy to the Indians in local self- governance but in the end this proved to be a farce. Even in the matter of provincial subjects indirect control of the Governor- General and Secretary of State was there since finance was a reserved subject and this could be used to pressurise the legislatures. The Council of State (the Upper House of the Central Legislature) was empowered to revise all Indian legislation. But it had no authority to amend or repeal any parliamentary statute relating to British India. And if the Governor- General felt that any Bill or any part of it could affect the tranquillity or safety of British India he could prevent its consideration. Thus it was self- governance only in name. And the people were not satisfied with this. To address this concern of the Indian people the Simon Commission was appointed which did not have a single Indian member as was expected in India. As a result, the Commission was boycotted in its arrival. Instead, an all- party conference by the Indian leaders resulted in the preparation of the Motilal Nehru Report which proposed an alternative scheme from that proposed by the Simon Commission for the constitution of India.
Then after some time came the Government of India Act in 1935 which brought some further changes to the working of the Government of India.
THE GOVERNMENT OF INDIA ACT, 1935
After the failing of the Simon Commission. Then Gandhi launched the Civil Disobedience Movement which ended with the Gandhi- Irwin Pact of 1931. After this there were three sessions of Round Table Conferences to decide the issue of independence. But these were unsuccessful. Then in 1935 was introduced the Government of India Act which was meant to replace the Government of India Act of 1919.  This Act was meant to apply to both the provinces and the princely states.
The Act of 1935 differed in certain aspects from the Government of India Act of 1919. One of the differences was that the Government of India Act of 1935 did not contain a preamble as opposed to the Government of India Act of 1919. The Joint Select Committee of the British Parliament stated in this regard that the preamble to the Government of India Act of 1919 had set out finally and definitely the ultimate aims of British rule in India. Hence there was no need to provide a fresh preamble or policy statement to the Act of 1935  .
This Act also ended the system of dyarchy which had been brought in by the Government of India Act of 1919. Under the system of dyarchy, the provincial governments had been divided into two parts, one part being responsible to the Secretary of State for India and the other part being responsible to the voters in the provinces. The subjects of administration were divided into Central and provincial, which contained subjects of national and local importance respectively. But this was found to be highly inefficient and inconvenient. And the Government of India Act of 1935 ended this system of one part of the government being responsible to the Secretary of State and the other part being responsible to the voters. Now what happened was that the Government of India Act, 1935 created a Federation, and this Federation was to derive its powers from the Crown and the British Parliament.  This federation was proposed to be constituted of both the provinces and the princely states. But this federation was to come into being only if more than half of the total number of the princely states formally signed the Instrument of Accession and acceded to join the federation. But this federation never came into existence as the required number of princely states did not sign the Instrument of Accession and accede to the federation.  It was only in the provinces that the constitution was enabled and the first set of elections was performed in 1937.
Apart from these there were some other characteristics in the Government of India Act of 1935 that were worth noting. This Act made provision for separate electorates on the basis of religion, profession etc. which was meant to promote the feelings of division on communal lines and to check the feelings of nationalism. Another feature was that while the Upper Chamber of the Federal Legislature was to be directly elected the Lower Chamber of the Federal Legislature was meant to be indirectly elected by the Provincial Legislatures  . Also, while the powers of administration of various subjects were divided clearly between the Federal Government and the Provinces, in the matter of residuary subjects it was left to the mercy of the Governor- General to decide who should exercise power in such subjects  . Also, there was the provision of safeguards, certain powers and special responsibilities being given to the Governor- General and the Provincial Governors. And the power of amending the constitution was not given to the Federal Legislature but it was kept with the British Parliament. 
This Act provided for the setting up of a Federal Legislature, which was to consist of members from the Provinces and the princely states, the ones from the provinces being elected by the people and the ones from the princely states being nominated by the princes. With regard to administration, it provided for three lists called the Federal, Concurrent and the Provincial Lists on which the Federal Legislature and the Provinces could legislate. In the matter of conflict of laws of the Federal Legislature and the Provinces on a Concurrent subject the law of the Federal Legislature was to prevail normally. A Bill in order to become an Act required the assent of the Governor- General. If a Bill had been passed by one of the chambers but rejected by the other chamber then the Governor- General could summon a joint meeting of both chambers to break the deadlock between the two chambers and the Bill if passed by a majority of members present and voting, was deemed to have been passed by both chambers. The Governor- General was to choose a Council of Ministers from the Federal Legislature. If any person was not a member of the Federal Legislature he had to become one before the expiry of six months. They were to aid and advise him in the exercise of powers conferred on him under this Act. In case of the failure of the constitutional machinery he could issue a promulgation regarding carrying on the work of administration. Under this Act he was empowered to declare in his discretion a state of emergency and then the Federal Legislature would become entitled to legislate on any matter in the Provincial List. And he was not bound by the advice of his ministers. For the subjects which had been put in the category of ‘Reserved Subjects” he was to be assisted by Counsellors which would be chosen by him and it was not necessary for them to be members of the Legislature. This Act also provided for the creation of a Federal Court which was to be the highest court in the country, supervising the work of even the various High Courts operating till then but inferior to the Privy Council  . In the Provinces the Provincial Legislatures consisted of the Legislative Assembly and in some cases the Legislative Council also. The Legislative Assemblies were to consist of members who were elected by way of separate electorates which were divided on communal and professional lines  .
Thus we see that there were some provisions which were supposed to be a change from the defects of the Morley- Minto Reforms, such as the removal of dyarchy, but in reality this Act still did not address the real demands of the Indians. It satisfied neither the people of the provinces nor the princes.
THE NEW CONSTITUTION OF INDIA
We have seen that the British were in no mood to grant even Dominion status to the people of India, and this was made clear by the Government of India Act of 1935. This was evidenced from the fact that there was no preamble to the Government of India Act of 1935. About the absence of the preamble it was stated that he preamble of its predecessor i.e. the Government of India Act, 1919 had set out the ultimate aims of the British rule definitely and finally. Hence the British Parliament did not feel the need to provide a fresh preamble. And the ultimate goal of the Government of India Act of 1935 was not even the grant of Dominion status, as was demanded by the Motilal Nehru Report. And nobody was satisfied with the Act. Even the princes were not satisfied with what had been laid out in the Act. Then in 1940 was made the August Offer. This offer recognised that the Indians had a conditional right to frame their own constitution. It stated that the constitution- making body would be set up after the end of the World War. Then, in 1942, the British Government made a declaration commonly known as the Cripps Proposals. This declaration provided for the setting up of a body for framing a new constitution after the end of the World War. This body was also to include the princely states’ representatives. If any state were not to accept the new constitution, it would have the right to retain its present constitutional status and could accede later if it wanted. This constitution- making body was to be elected by the Lower Houses of the Provincial Legislatures together, by the method of proportional representation. And during the time the new constitution was framed the British would retain the control of India. But this was rejected outright by the Indian leaders. And in 1946, came the Cabinet Mission Plan. This Plan suggested that the Union of India consist of both the provinces and the princely states. The provinces were to retain all subjects other than those in the Union and the residuary subjects. And the princely states would retain all subjects and powers except those ceded to the Union. And the provinces would be free to form Groups with Executives and Legislatures and each Group could determine the common provincial subjects. The constitutions of the Union and the Groups should contain a provision enabling re- consideration of the constitution after 10 years. And the constitution- making body would be divided into 3 sections which would settle the provincial constitutions for provinces under each section. After the new constitution had become functional any province had the right to opt out of the group it was in. And they had the right to secede from the Union after a period of 10 years. And then the Constituent Assembly was formed and an Interim Government took office. And in 1950 was adopted the new Constitution of India.
The Constitution of India differed from the Government of India Act of 1935 in certain aspects. For example, this Constitution was for a free India whereas the Government of India Act of 1935 did not talk about the grant of even Dominion status. Also, the concept of separate electorates and proportional representation, which had been introduced under the Government of India Act of 1935 and had divisive tendencies and aims, was not to be found in the new Constitution of India. Instead the new Constitution of India followed the principle of election by a universal franchise, where all could vote to elect their common leader irrespective of their religion, profession, caste etc. And this Constitution was for an India where there were no princely states. So we see here that the new Constitution of India has made a sharp departure from the Government of India Act in these cases.
But there were a number of things which the new Constitution of India had in common with the Government of India Act of 1935. Firstly, if we look at the legislative set- up provided by the new Constitution we will find that it resembles very closely the model followed by the British. The Government of India Act of 1935 provided for a bicameral Federal Legislature. And now also we have a bicameral Parliament. And the provincial legislatures could be either bicameral or unicameral. And now also, we have the same system in our states. In the matter of governmental control in various aspects of administration the Government of India Act of 1935 had provided for three Lists which set out the various subjects where the Federal and the Provincial Legislatures would have control. And in the case of conflict between the laws of the Federal Legislature and the Provincial Legislatures the laws of the Federal Legislature would normally prevail. And now we have the same system where we have the three Lists called the Union, State and the Concurrent Lists which provide the areas of administration of the respective legislatures. And in case of conflict of laws between the two legislatures the law made by the Union Government prevails. A Bill in order to become an Act under the Government of India Act of 1935 required the assent of the Governor- General or the Provincial Governors, as the case was. And now also a Bill in order to become an Act requires the assent of the President or the Governor, as the case may be. And in the case of the failure of the constitutional machinery in any part of the country the Governor- General was authorised to declare emergency and take over the administration. And in such cases the provincial legislative machinery would be superseded. And even now, in case of a failure of constitutional machinery in any state or in the country the President is to issue a proclamation declaring emergency. And the legislative machinery of the states is superseded. And even the administrative set- up and divisions have been left substantially the same as was the case earlier.
The Constitution of India has made a sharp departure from the Government of India Act in certain situations. But if we scrutinise closely we find that the legislative and administrative set- up have been left largely untouched. What we have in effect is a Constitution that follows the British model of administration to fulfil and attain the goal of prosperity for the nation. Therefore we can say that though the Constitution is meant for the welfare of the Indian nation it is not really a counterpoint to the Government of India Act of 1935.
Cite This Work
To export a reference to this article please select a referencing stye below:
Related ServicesView all
Related ContentJurisdictions / Tags
Content relating to: "Indian law"
This selection of law content including essays, dissertations, problem questions, and case summaries is relevant to Indian law students and to those studying Indian law from outside of India. India has an organic law as a consequence of the common law system. Through judicial pronouncements and legislative action, this has been fine-tuned for Indian conditions.
A Note on Corporate Criminal Liability
Introduction Corporate crimes and frauds have been prevalent for as long as commercial enterprises have been in existence. These involve criminal ......
Validity of Retrospective Amendments to Taxation Statutes
India, one of the fastest growing economies of the world with an exemplary rate of GDP is a nation which in spite of abundant social, cultural......
DMCA / Removal Request
If you are the original writer of this essay and no longer wish to have your work published on LawTeacher.net then please: