The Government of India Act, 1861

Submitted by
Ujjwal Mishra
B.A. LL.B. (hons.) Self Finance
3rd Semester
Roll No 54
of
Faculty of Law
Jamia Millia Islamia.
In
November, 2018

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Contents

1. Introduction

2. What is the Importance of the Act

3. Salient features of the Act

4. Criticism of the Act

5. Changes in Federation and government

6. Changes in Legislation

7. Why did the Act fail?

8. Conclusion

Introduction
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 The Third Round Table Conference took place in London, while Mahatma Gandhi was
organising a massive civil disobedience movement in India, after returning from the Second
Round Table Conference. The discussion at the Third Round Table Conference resulted in a
White Paper in 1934 containing proposals incorporated in a Bill and presented to the
Parliament for passage. This came to be known as the Government of India Act of 1935 and
was passed by the British Parliament. The 1935 Act was the second instalment of
constitutional reforms passed by British Parliament for implementing the ideal of responsible
government in India. The Act of 1935 envisaged a federal form of government and as such
was a radical departure from its predecessors. It granted provinces to the Centre. 1 On August
1935, the Government of India passed longest act i.e. Government of India Act 1935 under
the British Act of Parliament. This act also included the Government of Burma Act
1935. According to this act, India would become a federation if 50% of Indian states decided
to join it. They would then have a large no. of representatives in the two houses of the central
legislature. However, the provisions with regards to the federation were not implemented.
The act made no reference even to granting dominion status, much less independence, to
India. With regard to the provinces, the act of 1935 was an improvement on the existing
position. It introduced what is known as provincial autonomy. The ministers of the provincial
governments, according to it, were to be responsible to the legislature. The powers of the
legislature were increased. However, in certain matters like the Police, the government had
the authority. The right to vote also remained limited. Only about 14% of the population got
the right to vote. The appointment of the governor-general and governors, of course,
remained in the hands of the British government and they were not responsible to the
legislatures. The act never came near the objective that the nationalist movement had been
struggling for.

What is the importance of the Act

The act holds great importance in the Indian history and some points are stated below which
define its importance:

 The introduction of the act ended the dyarchy system by giving more freedom to
British India for better governance in the form of Provincial Autonomy and
established at dyarchy at the center,

1
Das Hari Hara, India Democratic Government and Politics, Himalay Publishing House, 1991, p. 63.
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  There was a division of the federal Subjects between the Centre and the provinces,
as the division made in the act of 1919 was revised,
 This act is of utmost importance because it leads to the Relationship of a
Dominion Status which urged the need for Independence again in the minds of the
people,
 The main provision of the act was to make the Governor General Pivot of the
constitution to settle if there were any disputes among the people,
 An important provision of the act was the protection of minorities such as women
etc. and safeguarding their rights.2

Salient features of the Act

1. It provided for the establishment of an All-India Federation consisting of provinces and
princely states as units. The Act divided the powers between the Centre and units in terms of
three lists—Federal List (for Centre, with 59 items), Provincial List (for provinces, with 54
items) and the Concurrent List (for both, with 36 items). Residuary powers were given to the
Viceroy. However, the federation never came into being as the princely states did not join it.

2. It abolished dyarchy in the provinces and introduced ‘provincial autonomy’ in its place.
The provinces were allowed to act as autonomous units of administration in their defined
spheres. Moreover, the Act introduced responsible governments in provinces, that is, the
governor was required to act with the advice of ministers responsible to the provincial
legislature. This came into effect in 1937 and was discontinued in 1939.

3. It provided for the adoption of dyarchy at the Centre. Consequently, the federal subjects
were divided into reserved subjects and transferred subjects. However, this provision of the
Act did not come into operation at all.

4. It introduced bicameralism in six out of eleven provinces. Thus, the legislatures of Bengal,
Bombay, Madras, Bihar, Assam and the United Provinces were made bicameral consisting of
a legislative council (upper house) and a legislative assembly (lower house). However, many
restrictions were placed on them.

2
https://blog.ipleaders.in/government-of-india-act-1935/ (last visited on Nov 20, 2018)
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5.It further extended the principle of communal representation by providing separate
electorates for depressed classes (scheduled castes), women and labour (workers).3

6. Another distinctive trait of the new Act was the provision of elaborate safeguards and
protective armours for the minorities. The reason given for it was that the minorities needed
protection from the dominance of the majority community. The nationalists, however, saw no
sense in this argument. They know that the so-called provisions in the Act relating to the
safeguards were merely a trick to empower the Governor-General and the Governors to
override the Ministers and legislators. Infact the safeguards amounted to vital reduction in the
powers of the ministers.

7. The Act also provided for the establishment of Federal Court to settle disputes arising
among the units themselves and also between a unit and the Federal Government. One of the
functions was to interpret the controversial clauses of the Act. It was however, not the final
court of appeal. In certain circumstances, the appeal could be made to the Privy Council.

8. The Indian had always been very critical of the India Council. The reasons for the
bitterness were many. The new Act abolished India Council and provided for the appointment
by the Secretary of State and his team of Advisers whose number was not to be less than 3
and nor more than 6. With the introduction of Provincial autonomy the control of Secretary of
State over the Transferred subjects was greatly diminished. His control however, remained
intact over the discretionary powers of the Governor-General and the Governors.4

CRITICISM OF THE GOVERNMENT OF INDIA ACT, 1935

Professor Coupland described the Act of 1935 as “a great achievement of constructive
political thought”. In his opinion ‘it made possible the transference of Indian destiny from
British to Indian hands’ Indian however, felt otherwise. Even the impartial British statesmen
like Mr. Atlee admitted that the new keynote of the Act was mistrust. It was disappointing for
it did not even made mention of Dominion status. Every political party of India condemned
the new draft for one reason or another. Mr. Jinnah, the leader of Muslim League, described
it as thoroughly rotten fundamentally bad and totally unacceptable5

3
https://www.jagranjosh.com/general-knowledge/government-of-india-act-1935, (last modified on Nov,20
2018)
4
Agarwal, R.C Indian Political System, S.Chand & Co., 1993, p. 54
5
Ibid page 55
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Changes in the Federation and Government

First of all, the introduction of federal principle was the most important and influential
feature of the Act. Indian Federation was a double process that comprised previously
subordinate provinces where the autonomy was applied and the separate princely states
bound only by the consultative Chamber of Princes and by direct ties with the Crown. Before
the Act, the federal central government was not in effect because not a sufficient number of
rulers of states had signed to function in accordance with the Act of 1919. However, the new
federal principle could exist independently and be enforced without their support. Provincial
autonomy was the corollary of Indian Federation. Afterwards, the federal structure was
completed by creating a federal court and a federal reserve bank. The next innovative feature
was the introduction of responsible governments in provinces. A system of popular
government replaced the previous diarchy. Chief ministers or premiers became the effective
leaders of provincial administration and the governors acted on their advice unless they
invaded their reserved powers. The Governor-General also appointed counsellors who had
the similar role to the members of governors' previous executive councils. The administrative
changes had great influence on the Indian Federation. Several regions underwent
transformations. First, Sind was separated from Bombay and became a separate province. "A
new province of Orissa was formed from the Orissa division of the former province of Bihar
and Orissa and adjacent portions of the Madras and Central Provinces". Burma was separated
from India and enacted a separate constitution.

 Changes in Legislation
The Government of India Act 1935 also had features on its organization and structure of
legislation. First of all, it had no preamble, which was included in the Government of India
Act 1919. In the Government of India Act 1919, the preamble was important as it was a
statement that policy and intentions were prefixed. However, there was no need for a
preamble in the Act of 1935, as no new pronouncement of policy or intentions was required.
It meant that there was no need to enshrine in an Act words and phrases which would add
nothing new to the declaration of the preamble. There was no Bill of Rights in the
Government of India Act 1935. Because the Federation would include autocratic Princely
States, no meaningful Bill of Rights could be formulated. Furthermore, the Government of
India Act 1935 was the longest bill among the Acts which were passed by the British
Parliament. Compared to the constitution of the USA, it had fewer than 8,000 words. "The
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reason for this length was Parliament lack of trust of Indians and particularly Indian
politicians."  The Government of India Act 1935 was closely related to a Dominion
Constitution. After a few amendments were added, the Government of India Act 1935 could
function as the constitutions of both India and Pakistan.6

Changes in Other Aspects

There were other features that showed great developments compared to the past. First of all,
the provincial assemblies changed to include more elected Indian representatives, who in turn
could lead majorities and form governments. But Governors tried to retain powers concerning
the summoning of legislatures, assenting to bills and administering certain regions. The
Lothian Committee included about 35 million voters who were required only a small property
qualification. Women also received the franchise which had the same terms as men. The
safeguards of the Government of India Act 1935 were also changed. The safeguards and their
special powers were continued to exist after the Act of 1935. "At the Centre the Governor-
General" had the control of the reserved departments, the power of certifying legislation in
the form of 'Governor-General's Acts', and the power to issue ordinances with the force of
law for six months at a time." The safeguards were used to maintain the British government's
interests and responsibilities. The Act focused on the power of Viceroy, the British colonial
Governor-General of India, and governors who could administrate the safeguards. Moreover,
the governors were discharged of their responsibilities such as the prevention of
discrimination, protection of the interests of minorities, and continuance of the
administration. Other safeguards carried out their work as preserving the rights of Indian
services and their control by the Secretary of State. There was a provision that "The law, in
its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the
streets, and to steal bread."7 Frome Anatole France in The Red Lily, 1894. It suggested that
under the Act, British citizens in the United Kingdom and British companies registered in the
United Kingdom must be treated on the same basis as Indian citizens and Indian registered
companies. The unfairness of this arrangement was obvious from the fact that British capital
took dominant position in much of the Indian modern sector. It also contained that trade with
foreign countries must be administered by the Minister of Commerce. However, the Foreign

6
https://byjus.com/free-ias-prep/government-of-india-act-1935 (last visited on 20 Nov, 2018)
7
Article India, in: Encyclopaedia Britannica 
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Office or Department of External Affairs in the mainland of United Kingdom controlled all of
the negotiations with foreign countries. 

WHY DID THE ACT FAIL?8

The act had so much to promise to the people for their welfare but was not able to deliver
anything that could turn out in its implementation. The act was a complete failure and the
main reasons why the act failed have been discussed below:

 The concept of an All India Federation failed completely because the Indian

National Congress never came for the accomplishment of the plan which was
made because of the representation power of the princely states was still in the
hands of the British so the concept could not be implemented.
 The act failed to provide flexibility to the people at the constitutional level in
regard to their amendments of rights as the power to change or alter any right was
present with the British government while the Indians could not do anything
according to their needs.
 The act failed to provide a proper federal structure, majority of the power was with
the governor general who was not at all responsible for the central legislature
which meant that the legislature was not governed properly.

CONCLUSION
The Government of India Act, 1935 was a major step towards the Independence of
India and helped in the reorganization of the states such as Sindh was separated
from the province of Bombay, similarly Bihar and Orissa were separated, Aden
which was earlier a part of the country was separated and was then made a new
crown colony.

 The Government of India Act was a total failure as it was not able to give what it
had proposed.
 The concept of dyarchy that was brought proved to be wrong and also the act was
opposed by the Indian National Congress and the Muslim League.
 Due to the lack of provision of a central government, it was not good for the
Indians and there were many flaws in the act that was in a way hampering the
8
https://blog.ipleaders.in/government-of-india-act-1935/ (last visited on 20 Nov, 2018)
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 rights and morals of the people. Even Honorable Jawaharlal Nehru said that the act
for Indians seems like-” Driving a car with all breaks but with no engine”.9            

9
https://www.gktoday.in/gk/government-of-india-act-1935/ (last visited on 20, Nov 2018)
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