Constitutional Development in India from 1773 to 1935

Regulating Act of 1773

Background: The Regulating Act of 1773 was first act of British Parliament to exercise indirect control over the affairs of East India Company's rule in India. By 1773, the East India Company [EIC] was in deep financial trouble. The EIC owed money to both the Bank of England and the Government. The Company was important to Britain because it was a monopoly company in India and in the east and many influential people were shareholders. The Company failed to pay its dues to Government to maintain its monopoly. On the other hand the officials of EIC were getting richer by their private trade and by receiving gifts/bribes at the cost of the company.  Having observed these things, Lord North decided to overhaul the management of the East India Company with the Regulating Act.

Provisions of the Regulating Act:

1)    A  Court of Directors was created at London to oversee the affairs of EIC in India. 

2)    The Governor of Bengal/Fort William was elevated to the statue of Governor General of Bengal /Fort William [Warren Hastings was first Governor-General of Bengal] and governors of Madras and Bombay presidencies were brought under the control of Governor General of Bengal.

3)    The institution of Governor General-in-council was created with Governor General as head and with four other members to carry out Legislative & Executive functions.

4)    A Supreme Courtof Calcutta was provided with one chief justice and three puisne judges. It was constituted in 1774 with Sir Ellijay Impey as chief justice.  [It had jurisdiction over Bengal, Bihar and Orissa &British judges were to be sent to India to administer the British legal system that was used there].

5)    It prohibited the servants of company from engaging in any private trade or accepting presents/gifts or bribes from the natives.

6)    The Act limited Company dividends to 6% until it repaid a GB£1.5M loan.

The East India Company Act 1784 or Pitt's India Act,

Background: This was an Act of the Parliament of Great Britain intended to address the shortcomings of the Regulating Act of 1773. The supervisory role of British Parliament on the affairs of the EIC failed to control the nepotism and corruption among the officials of EIC and the system was not improving. In order to exercise direct control rather than having regulated role, the new Act was necessitated whereby Government can take a more active role in the affairs of the Company.

Provisions of the 1784 Act:

1.   It brought the affairs of EIC in India under the control of the British Government.

2.   A Board of Control was created at London with six members, two of whom were members of the British Cabinet and the remaining from the Privy Council. The Board also had a president, who soon effectively became the minister for the affairs of the East India Company.

3.   This Act provided for a joint government of British India by both the Company and the Crown with the government holding the ultimate authority.[The Board was given powers to superintend, direct and control the government of the Company's possessions in effect controlling the acts and operations relating to the civil, military and revenues of the Company.]

4.   The membership in Governor General-in- council [governing council of the Company] was reduced to three members [1+ 3], and the governor-general, a crown appointee, was authorised to veto the majority decisions.

5.   Governing Councils were established at Madras and Bombay presidencies

6.   The governors of Madras and Bombay were clearly subordinated to the Governor General. The governor-general was given greater powers in matters of war, revenue and diplomacy.

[By a supplementary act passed in 1786 Lord Cornwallis was appointed as the second governor-general of Bengal, and he then became the effective ruler of British India under the authority of the Board of Control and the Court of Directors. The constitution set up by Pitt's India Act did not undergo any major changes until the end of the company's rule in India in 1858].

The East India Company Act 1793 or the Charter Act of 1793

The East India Company Act 1793, also known as the Charter Act of 1793, was an Act of the Parliament of Great Britain which renewed the charter issued to the British East India Company, and continued the Company's rule in India.

Provisions:

1.   The Company's trade monopoly was continued for a further 20 years.

2.   Salaries for the staff and paid members of the Board of Control were also now charged to the Company.

3.   The Governor-General was granted extensive powers over the subordinate presidencies.The Governor-General's power of over-ruling his council was affirmed, and extended over the Governors of the subordinate presidencies.

4.   Senior officials were forbidden from leaving India without permission.Royal approval was mandated for the appointment of the Governor-General, the governors, and the Commander-in-Chief.

The East India Company Act 1813 or the Charter Act of 1813

It renewed the charter issued to the British East India Company, and continued the Company's rule in India.

1.   It ended Company's commercial monopoly in India, except tea and opium.Indian trade was thrown open to Englishmen.

2.   It made compulsory training for all civil servants.

3.   It allotted Rs.100,000/- to promote education in India.

4.   Christian missionaries were allowed to come to British India and preach their religion.

5.   Financial provision was also made to encourage a revival in Indian literature and for the promotion of science.

The Saint Helena Act 1833 or the Government of India Act 1833

This Act of the Parliament of the United Kingdom was also meant for an extension of the royal charter granted to the company for further by 20 years.

 It contained the following provisions:

1.    It made the Governor-General of Bengal as the Governor-General of India.[Lord William Bentinck (1828 to 1835) was the first Governor-General of India. [Centralisation of Administration]

2.    It Centralised the Legislature with the Governor General-in-council and thereby laws passed by the Central Council in Calcutta would have automatic application for Madras & Bombay provinces.  [The Governor-General was given exclusive legislative powers for the entire British India- Centralisation of legislation]

3.    For the first time, a provision was made for the appointment of a law member to the Governor General-in-council who would attend the council meetings as a matter of right (only) when the legislative functions are performed. [Lord Mecaulay became the first law member] [When executive functions are performed GG-in-c had 1+3 & for legislative functions GG-in-c had 1+3+1 combination] 

4.    It ended the activities of the Company as a commercial body and became a purely administrative body/ It ended the monopoly of EIC on all trade items including tea and opium.

5.    For the first time, it provided for appointment of Indians to civil services (clause 87) through open competitions.In fact, it hasremoved the disqualification put up by Lord Cornwallis on Indians for entry into Indian Civil Service (ICS). However this provision was negated after opposition from the Court of Directors who were still holding the privilege of appointing the companies officials.

The Charter Act, 1853

British Parliament was called upon to renew the Charter of the Company in 1853.The Parliament had in the preceding year appointed two committees to go into the affairs of the Company and on the basis of their reports the Charter Act of 1853 was framed and passed.

Provisions:

1.   The number of the members of the courts of Directors was reduced from 24 to 18 out of which 6 were to be nominated by the crown. Power was given to the “Court of Directors” to constitute a new presidency and also to alter and regulate from time to time the limits of the various provinces. [No new province was created, however Lieutenant Governorship was created administering the Punjab] 

2.   The act ended the right of “Court of Directors” for the recruitment and recalling. The recruitment for the company jobs in the administration was transferred to “Board of Control”. For the first time Written Competitive Exams were held for the jobs in the administration.

3.   The Governor General of India was relieved from the additional responsibility of being the Governor of Bengal and a Lt. Governor of Bengal was appointed for administering Bengal. [Lord Dalhousie (1848 to 1856) became first GG without additional responsibility as G of Bengal]

4.   The Act of 1853 marked the beginning of a Parliamentary system in India. The Act extended the machinery of legislation. The law member was made permanent/full member of the GG executive council. This EC while sitting for legislative functions, has enlarged by the additions of 6 members- the chief Justice and a puisne judge of Supreme court of Calcutta and 4 civil servants representing four provinces-Bengal, Madras, Bombay and North Western Provinces. For the first time, legislature was given powers to frame its own rules of procedure. Further, Commander-in-chief was also given the membership of GG-in-EC and thereby took the members in GG EC to 12 (1+4+6+1). 

The members can ask questions, policy of the Executive Council can be discussed, though the EC retain the power to veto a bill of legislative council. Discussion in the council was oral and business was to be conducted in public than in secret.  [No Indian element was associated with the Legislative Council]

5.    The Act provided that the salaries of the members of the Board of Control ,its secretary and other officers would be fixed by the British Government but would be paid by the company.

6.   It renewed the powers of the company and allowed it to retain possession of Indian territories on the condition that company should govern India in trust for the Crown. Unlikeearlier charter Acts, no timeframe was fixed this time.

The Government of India Act 1858

Background: This Act was passed to better administer the possessions of EIC in India under the backdrop of Indian rebellion in 1857. It was deliberated the complexities involved in the governing India under the existing system and therefore wanted to end the company rule in India.

Provisions:  

1.    This Act has ended the East India Company rule in India and the British Crown took over the administration of India.

2.    It abolished the “Court of Directors” and “Board of Control” and vested the powers in Queen's Principal Secretary of State, a Minister in the British cabinet.  Thus, the system of double government (one at London & another in India) introduced by the Pitt’s India Act of 1784 was abolished.

3.    The secretary/ Minister in the cabinet was re-designated as “Secretary of State” for India, assisted by a council of 15 members was appointed to assist the Secretary of State for India. He was empowered to superintend, direct and control all the governmental affairs of India. [Charles Wood, the last president of Board of Control, was made the first Secretary of State.]

4.    The Secretary of State for India was empowered to send some secret despatches to India directly without consulting the Council of 15 members. He was also authorised to constitute special committees of his Council.

5.    The Governor General of India has received the title of Viceroy and became direct representative of the crown [ Lord Canning became the first Viceroy, 1856 to 1862]

6.    The Crown was empowered to appoint a Governor-General and the Governors of the Presidencies.

7.    Provision for the creation of an Indian Civil Service under the control of the Secretary of State.

8.    All the property of the East India Company was transferred to the Crown. The Crown also assumed the responsibilities of the Company as they related to treaties, contracts, and so forth.

Growth of Representative Government in India

The Indian Councils Act 1861:

1.   The Indian Councils Act 1861 empowered the viceroy to make rules for more convenient transaction of business. By using this provision Lord Canning has transformed the Viceroy of India's executive council into a cabinet run on the “portfolio system”for easy legislation and administration.[Foundation for the future Cabinet form of Government in India] 

2.   A fifth member was added to the “Viceroy’s executive Council” [1+5]. This cabinet had six "ordinary members" who each took charge of a separate department in Calcutta's government: home, revenue, military, law, finance, and (after 1874) public works. [The sixth ordinary member is Commander-in-chief who used to attend EC meeting as an extraordinary member].

3.   The GG-in-council was enlarged by adding 6-12 members for legislative purpose. These members would be nominated by the Viceroy for a term of 2 years, but not less than half of them would non-officials. [No statutory provision was made for admission of Indians, but some of the non-official seats were offered to the natives of high rank.

4.   The Viceroy enjoyed the veto power and in the case of emergencies authorised to issue ordinances which were to be valid for 6 months.

5.   This act restored the legislative powers of making and amending laws to the Madras and Bombay presidencies which were taken way by the Charter Act of 1833. The legislative council at Calcutta was given extensive authority to pass laws for British India as a whole, while the legislative councils at Bombay and Madras were given the power to make laws for the "Peace and good Government" of their respective presidencies, subject to the assent of viceroy for validity.

6.   The viceroy was given the power to create new provinces for legislative purposes and appoint Lt. Governors for the same. Under this provision, legislative councils were created in Bengal, North West provinces(Present UP) and Punjab in 1862, 1886 and 1897 respectively.

[The Secretary of State for India at the time the Act was passed, Sir Charles Wood, believed that the Act was of immense importance: "the act is a great experiment. That everything is changing in India is obvious enough that the old autocratic government cannot stand unmodified is indisputable.]

The Indian Councils Act 1892

The Indian Councils Act 1892 was enacted by the Parliament of the United Kingdom  to increase the size of the various legislative councils in British India. This act was made in response to the demand from the Indian National Congress to expand legislative councils.

Provisions of the Act:

1.   The number of additional members in the “Imperial Legislative Council” at Calcutta and “provincial Legislative Councils” were enhanced. In the Imperial Legislative council, there would be 10-16 non-officials. In the provincial councils the members would be not less than 8, but not more than 20.

2.   Two fifths of the total members of the councils were to be non-officials. Some of them could be indirectly elected and others are nominated bythe Viceroy. Thus a system or an element of election, albeit indirect was introduced for the first time.

3.   The non-official members to the Imperil Legislative Council were (indirectly) elected by the provincial legislatures. The non-official members of the provincial councils were elected by the Local bodies such as district boards, municipalities, universities and chambers of commerce. Thus was introduced the principle of representation.

4.   For the first time the members of Legislature was allowed to discuss the annual financial statements and questions can be asked within certain limits to the government on the matter of public interest after giving six days' notice but none of them was given right to ask supplementary question. Thus it prepared the base for the future Indian Democracy.

Limitations of the Act:

1.   The officials retained the majority in the councils, thus leaving a the voice of the non-officials ineffective.

2.   The reformed Imperial Council, up to 1909 on an average met 13 days in a year and the attendance of non-official members was very poor.

3.   The budget could neither be voted upon, nor could any amendments be made to it.

4.   Supplementary could neither be asked, nor could answers be discussed.

The Indian Councils Act 1909 /Morley-Minto Reforms

Background:

The Indian Councils Act 1909 commonly known as the Morley-Minto Reforms, was an Act of the Parliament of the United Kingdom that brought about a limited increase in the involvement of Indians in the governance of British India. John Morley, the Liberal Secretary of State for India, and the Conservative Governor-General of India, The Earl of Minto, believed that cracking down on uprising in Bengal was necessary but not sufficient for restoring stability to the British Raj after Lord Curzon's partitioning of Bengal. They believed that a dramatic step was required to put heart into loyal elements of the Indian upper classes and the growing Westernised section of the population.

Provisions:

1.   The size of the Legislature both at Central and provinces was enlarged.  The number of the members of the Legislative Council at the Centre was increased from 16 to 60. It was fixed as 50 in the provinces of Bengal, Madras and Bombay, and for the rest of the provinces it was 30.

2.   The members of the Legislative Councils, both at the Centre and in the provinces, were to be of four categories i.e. ex-officio members (Governor General and the members of their Executive Councils), nominated official members (those nominated by the Governor General and were government officials), nominated non-official members (nominated by the Governor General but were not government officials) and elected members (elected by different categories of Indian people).

3.   In provincial councilsnon-official majority was introduced. However, since some of the non-officials were nominated, the overall non-elected majority remained. In the central council, official majority continued.

4.   The mode of election was indirect. The local bodies were to elect an “electoral college” which would elect the members of Provincial Legislature which in turn had to elect members for the Central Legislature.

5.   The Act has enlarged the functions of the councils as well.  The members of the Legislative Councils were permitted to discuss the budgets, suggest the amendments and even to vote separate items in the budget, but the budget as a whole could not be voted up. There were certain non-voted items in the budget. They were also entitled to ask supplementary questions during the legislative proceedings. They had right to discuss any matter of public importance and adopt resolutions, though they were not binding on the Government.

6.   The most controversial provision in the act was separate communal electorate was given to the Muslims [Only Muslims would vote for the Muslim candidates] and representation in excess of their population. The income qualification for Muslim voters [for voting] was kept at lower than that of Hindus.

7.   The qualification of electorate based on income, property and education differed from community to community and region to region.

8.   A provision for appointment of an Indian to Viceroy’s executive council was made for the first time. [Lord Satyendra Prakash Sinha became the first Indian appointed to the viceroy’s executive council and he was given law portfolio].

9.   Two Indians were nominated to the Council of the Secretary of State for Indian Affairs.

Evaluation of the act:

The Act of 1909 was important for the following reasons:

·         It effectively allowed the election of Indians to the various legislative councils in India for the first time. Previously some Indians had been appointed to legislative councils. Leaders like Gokhale had utilised the discussions in the councils demanding universal primary education, attacking the repressive policies of government and drawing the plight of Indian workers in South Africa. 

·         The introduction of the electoral principle laid the groundwork for a parliamentary system even though this was contrary to the intent of Morley.

However, the reforms of 1909 afforded no answer to the Indian political problem. They were basically aimed at to placate the moderates and Muslims against the rising tide of nationalism and to sabotage the genuine aspirations of the Indians for self government. The system of election is too indirect that no meaningful representation could be made. Further, they too had very limited role to play in the councils.

·         Muslims had expressed serious concern that a ‘first past the post’ British type of electoral system would leave them permanently subject to Hindu majority rule. The Act of 1909 stipulated, as demanded by the Muslim leadership

Ø  that Indian Muslims be allotted reserved seats in the Municipal and District Boards, in the Provincial Councils and in the Imperial Legislature;

Ø  that the number of reserved seats be in excess of their relative population (25 percent of the Indian population); and,

Ø  that only Muslims should vote for candidates for the Muslim seats ('separate electorates').

These concessions were a constant source of strife 1909-47 and finally led to the partition of India and bloodbath that succeeded. British statesmen generally considered reserved seats as regrettable in that they encouraged communal extremism as Muslim candidates did not have to appeal for Hindu votes and vice versa. As further power was shifted from the British to Indian politicians in 1919, 1935 and after, Muslims were ever more determined to hold on to, and if possible expand, reserved seats and their weight age. However, Hindu politicians repeatedly tried to eliminate reserved seats as they considered them to be undemocratic and to hinder the development of a shared Hindu-Muslim Indian national feeling.

The reforms gave a shadow than the substance to the people of India and failed to satisfy the Indian National Congress which was demanding for “the system of government obtaining in Self-Governing British Colonies”.

The Government of India Act, 1919 or Montagu-Chelmsford Reforms

Background:

Lord Montagu, the secretary of Stateannounced in the House of Commons on 17^th August 1917 that the goal of constitutional advance in India to be “ the gradual development of self governing institutions with a view to the progressive realisation of responsible government as an integral part of British Empire”. It was called “Montagu statement” or “August Statement” [not to be confused with August offer made by Lord Wawell in 1944]. The Montagu–Chelmsford Report in 1918 has laid down a fourfold formula to implement the policy in first stage

1.   Introduction of complete popular control in Local bodies-Municipalities, taluks, district boards etc.

2.   Partial introduction of responsible government in the field of provincial administration.

3.   Non-introduction of responsible government at the centre but enlargement of Indian Legislative council and more representation of Indians in it and

4.   Relaxation of the control of Parliament and the Secretary of State to the extent of popular government introduced in the provinces.

These recommendations were given statutory shape under the 1919 Government of India Act.

Provisions:

1.   Provincial Government:

Executive side: Dyarchy was introduced and the is explained as under.

a)   There are two sets of governments- Executive Councillors (Non-accountable) and Popular ministers (accountable to Legislature). Governor was the head of the province.

b)   The legislative subjects were divided into two lists- “reserved list”and “transferred list”. The reserved list contains subjects such as Law & Order, Finance, Land Revenue, Irrigation etc and was administered by the Governor with the help of his Executive Councillors. The transferred list contains subjects such as education, Health, Local Governments, Public works, excise, Industries, weights and measures etc and was administered by the Ministers nominated by the Governor from the elected representatives of the legislative council

c)   The ministers were to be responsible to the Legislature and had to resign if no-confidence motion was passed by the Legislature against them. But the Executive councillors were not responsible to the legislature.

d)   In case of failure of constitutional machinery in the province, the Governor can take over the administration of “transferred subjects” also. Further, all the ministers held power during the pleasure of the Governor.

e)   The S-of-S (secretary of state) and Viceroy could interfere in respect of “Reserved subjects” while their scope of interference was limited in the transferred subjects.

Provincial Legislature:

a)   Provincial legislative councils were expanded- 70% of the members were to be elected; 20% members were to be nominated officials and 10% were to be nominated non-officials.

b)   The election was direct, the primary voters electing the members. The mischievous communal and class electorates were further consolidated

[Constituencies were divided into General & Special- General constituencies to return Hindus, Muslims, Christians, Anglo-Indians, Sikhs etc. ; Special constituencies for Landlords, Universities, Chamber of commerce etc.]

c)   Women were also given the right to vote.

d)   The legislative council could initiate legislation but Governors assent was required. He could veto bills and issue ordinances

e)   The legislatures enjoyed the freedom of speech, right to move resolutions, ask primary and supplementary questions. The members could reject the budget, though the Governor could restore it if necessary

f)    The budget was divided into two parts-70% of the items are non-votable. In the remaining 30% votable budget items, the demand for wantscanbe rejected by the house, but the Governor had power to restore them by certifying that they were essential for the discharge of his duties.

2.   Central Government at Calcutta:

Central Executive:

a)  No responsible government. The number of Indians in the Viceroy’s executive council  was raised to 3 in a council of 8

b)  Viceroy to be the Chief Executive authority

c)   There were two lists for administration-Central and Provincial. [Those subjects of National importance or subjects’ belonged to more than one province were central subjects. Eg: Defence, Foreign affairs, Posts & Telegraphs & communications, etc. The provincial subjects were Public Health, Local self governments, Education, Law & Order, Agriculture, etc. Any subject which was not specially transferred  to the provinces was also central subject]

d)  The GG retained full control over “reserved subjects” in the provinces

e)  He could restore cuts in grants; certify bills rejected by the Central Legislature and issue ordinances.

Central Legislature: 

a)  This Act introduced bicameral legislature at Centre- Central LegislativeAssembly(lower house) with 145 members and Council of States (Upper House) with 60. [In the Lowe house, out of 145, 41 members were nominated and 104 elected. Out of 104 elected 52 from general constituencies, 32 from Muslim constituencies and 2 sikhs; 20 from Special constituencies , 7 by land lords, 9 for Europeans and 4 from Indian commercial community. Out of nominated 41, 26 were officials and 15 non-officials. In the upper house, out of 60, 26 were to be nominated by the GG and 34 to be elected. Out of nominated members of 26, 20 were officials and 6 were non-officials. Out of elected members of 34, 20 from general, 10 by Muslims, 3 by Europeans and 1 by Sikhs]

b)  The Council of states had tenure of 5 years, while Central LegislativeAssembly 3 years.

c)   The Legisaltors could ask questions & supplementary questions, pass adjournments motions and vote a part of the budget (30%), but 70% of the budget was still non-votable.

3.   Home charges to be paid from British Exchequer.

[During the period of colonial rule in India, the drain of wealth took place through various forms, one among them was, Home charges: Costs of the Secretary of State's India Office, East India Company's military adventures, cost of suppressing the Mutiny of 1857 and the compensation "to the company's share holders, pensions lo the British Indian officials and army officers, costs of army training, transport, equipments and campaigns outside India and guaranteed interests on railways. However, by this act, the home charges were dispensed with from Indian funds]

Evaluation:

Positive changes: The changes at the provincial level were significant, as the provincial legislative councils contained a considerable majority of elected members. In a system called "diarchy," the nation-building departments of government – agriculture, education, public works, and the like – were placed under ministers who were individually responsible to the legislature. The departments that made up the "steel frame" of British rule – finance, revenue, and home affairs – were retained by executive councillors who were nominated by the Governor. They were often, but not always, British and who were responsible to the governor. Some of the Indians found their way into important committees including Finance. In 1921 another change recommended by the report was carried out when elected local councils were set up in rural areas, and during the 1920s urban municipal corporations were made more democratic and "Indianized.

Drawbacks:

These reforms represented the maximum concessions the British were prepared to make at that time. The franchise was extended, but still very limited. Though increased representation and authority was given to central and provincial legislative councils, but the viceroy remained responsible only to London. In other words, at the Centre, the legislature had no control over the Governor Generals Executive Council. The allocations of seats in Central Legislature were not based on population, but on the importance of the provinces- for example Bombay’s commercial importance and punjab’s military importance.

In the provinces, the two parallel governments administering different subjects sans logic and unworkable. The provincial ministers had no real powers as main subjects were reserved and their good work could be negated by the Governor. They were not consulted on important matters also.The mischievous communal and class based electorate was consolidated.

The Indian National Congress has declared that the reforms are disappointing and unsatisfactory and demanded effective self government in India.  

GOVERNMENT OF INDIA ACT, 1935

          It was the last constitutional reform of the England, introduced on the basis of white paper 1933 and came to effect from April 1, 1937.  It provided for abolition of Dyarchy at provincial level and introduction of the same at Centre.

          The Government of India Act was passed by the British Parliament in August, 1935.  The main provisions are – All India Federation; Federal Provincial autonomy and others. 

(1)Proposed all India Federation:  It was to comprise all British Indian provinces, all Chief Commissioner’s provinces and Indian Princely States; provided (i) princely state with allotment of not less than half of the 104 seats of the Council of State should agree to join the Federation and (ii) aggregate population in the above category should be 50% of the total population of all the Indian princely states.  Since the conditions were not fulfilled, the proposed Federation never came up. 

(2)(a) Federal Executive: Dyarchy (rejected by the Simon Commission) was introduced for Federal Executive.  Governor-General was the pivot of entire structure.  The reserved subjects – Defence, External Affairs, Ecclesiastical (religious) affairs and administration of Tribal areas were administered by Governor General with the help of not more than 3 Councilors appointed by him.  The other Federal or transferred subjects were administered by him with assistance and advice of ministers elected by Legislature.  These ministers were to be responsible to the Federal Legislature and to resign on losing the confidence of the House. 

Governor-General could act in his discretion in the discharge of his special responsibilities for certain subjects, such as maintaining peace and tranquility of India.  

(b) The Federal Legislature: (i) It was bi-cameral; had upper house ( Council of States ) and lower house ( Federal Assembly).  The council of states was to be 260 member house, partly directly elected by British Indian Provinces ( 60% = 156) and partly (40%) nominated by Princely States ( 40% = 104).  The Federal Assembly was to be 375 member house, partly INDIRECTLY elected by British India provinces and partly (1/3^rd) nominated by princely states / princes.  This provision of direct election to upper chamber and indirect to Federal Assembly was deviation of general practice in vogue. 

(ii) Council of States has to be a permanent body with 1/3^rd members retiring every third year.  Duration of Federal Assembly was 5 years.

(iii) There were 3 lists for legislative purpose – Federal, provincial and con-current; the Federal Legislature had power to make laws for while India or a part thereof; provincial legislature for province or part thereof and both could legislate on concurrent list. 

(iv) Members of Federal Assembly could move vote of no-confidence against Ministers; but council of states could not move vote of no-confidence.  Residuary powers rest with Governor-General. He could restore cuts in grants; certify bill rejected by Legislature; issue ordinances and exercise veto.

(v) 80% of budget non-votable.

(vi) Responsible government with safe guards.

(vii) The system of religion-based and class-electorate further extended.

(3)Provincial autonomy: Provincial autonomy replaced diarchy – complete responsible government elected by people was introduced.  Provinces are freed from ‘the superintendence, direction’ of the Secretary of State and Governor-General.  Provinces henceforth derived their legal authority directly from the British Crown.  Provinces given independent financial powers and resources.  They could borrow money on their own security. 

(4)Executive: Governor was Crown’s nominee and representative to exercise the authority on King’s behalf in a province.  His position was largely modeled on that of Governor-General.  Governor was the constitutional head of the state who administers the province with the assistance and advice of the council of ministers, who are appointed by Governor from among the elected representatives.  They hold office during the pleasure of the Governor; besides responsible to the provincial legislature.  Governor had special powers regarding minority interests, rights of civil servants, law and order, British business interests, partially extend areas, princely states, etc.  He could act on his own in discharging his special responsibilities such as prevention of menace to the peace and tranquility of the province or any part thereof.  He could take over the administration when there is a breakdown of constitutional machinery. 

(5)Legislature: (i) All members to be directly elected by franchise extended, women got the right on the same basis as men.  All provincial subjects are administered by a council of ministers, headed by a premier / Chief Ministers and the ministry was answerable to the legislature. (ii) Provincial legislature could legislate on subjects of province and con-current list. (iii) 40% of budget is not-votable. (iv) Governor could (a) refuse assent to a bill (b) promulgate ordinances (c) enact Government Acts. (v) The electoral provisions of the Act were governed by communal award of British Government as modified by Poona pact with regard to Scheduled Casts.  It made provision for separate communal electorate for Muslims, European, Anglo-Indian, Indian Christian, Parsies & Sikhs with a reservation of seats for Scheduled Castes in the General electorate. 

Evaluation of the Act:

1. Numerous ‘safeguards’ and special responsibilities of the governor-general     worked as brakes in proper functioning of the Act and the provinces too, the governor still had extensive powers.

2. The Act enfranchised only 14 per cent of British Indian population.

3. The extension of the system of communal electorates and representation of various interests promoted separatist tendencies which culminated in partition of India.

4. The Act provided a rigid Constitution with no possibility of internal growth.  Right of amendment was reserved with the British Parliament.

5. The diarchy system with two governments is illogical and difficult to work with.

6. The indirect election for Lower House and direct election to the Council of states sans meaning and logic. It was alien to the known constitutions at that point of time.

The 1935 Act was condemned by nearly all sections and unanimously rejected by the Congress.  The Congress demanded convening of Constituent assembly elected on the basis of adult franchise to frame a constitution for independent India. 

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