Write shorts note on Salient features of the Government of India Act, 1935.

From Unitary to Federal Design

Before 1935, India was governed as a unitary state, with the Government of India Act, 1919 vesting effective control in the Governor-General and Governors appointed by the Crown. The Act of 1935 marked a deliberate departure by attempting to convert this unitary structure into a federal one, proposing an All-India Federation comprising the Governors' Provinces of British India together with the Indian States ruled by native princes. This was a novel scheme in itself, for it sought to bring together territories under direct British administration and territories under princely rule into a single federal fold, an ambition that, as we shall see, was never realised in practice.

The reason the federal scheme collapsed is instructive. Accession to the proposed federation was voluntary for the princely states, and enough rulers withheld their consent that the number required for the federation to come into force was never reached. Consequently, the federal part of the 1935 Act relating to the Centre never became operative at all; what did take effect was only the provincial part of the scheme, meaning the distribution of powers between the Centre and the Provinces was implemented, but the Central Government itself continued to function under the older, unitary Act of 1919, with the Governor-General and a nominated Executive Council in charge, the Governor-General retaining the power to overrule his Council whenever he considered the safety or interests of British India to be materially affected.

Provincial Autonomy and Diarchy Abolished

At the provincial level, the 1935 Act introduced what came to be called provincial autonomy, a marked improvement over the earlier system of diarchy under the 1919 Act, where subjects were artificially split between "reserved" and "transferred" categories, each administered differently. Under the new scheme, executive authority in a Province vested in the Governor, who was appointed by the Crown but was ordinarily required to act on the advice of Ministers responsible to a Provincial Legislature elected on a limited franchise. The qualifying word "ordinarily" is important, because the Governor retained certain functions to be exercised in his own discretion or individual judgment, in which case he was not bound by ministerial advice at all, though even then he remained subject to the control of the Governor-General. This dual character, part responsible government, part reserved discretionary power, meant that Indian self-government under the Act was real but distinctly incomplete.

Distribution of Legislative Powers

Perhaps the most enduring contribution of the 1935 Act lies in its scheme for distributing legislative powers between the Centre and the Provinces through three lists, a Federal List, a Provincial List, and a Concurrent List, a structure so foundational that the framers of the Constitution retained the same basic framework, even though the details of allocation were substantially revised. This is why Article 246 of the present Constitution, dividing subjects between the Union, State, and Concurrent Lists, traces its lineage directly to the 1935 scheme, and why the Supreme Court has observed in cases such as Prof. Yashpal v. State of Chhattisgarh that though the distribution of legislative power envisaged in the 1935 Act was not adopted wholesale, the basic framework remains the same.

Emergency and Ordinance-Making Powers

The 1935 Act also supplied the model for what is today the President's ordinance-making power under Article 123. Section 72 of the Government of India Act, 1935 authorised the Governor-General to promulgate ordinances for the peace and good government of British India whenever an emergency was found to exist, and the courts of that era took a strikingly deferential view of this power. In Bhagat Singh v. King-Emperor, Lord Dunedin observed that it was the Governor-General alone who could judge whether a state of emergency existed, since any other view would render the provision "utterly inept," while the Federal Court in Lakhi Narayan v. State of Bihar similarly held that the existence of the necessitating circumstances was not a justiciable matter open to investigation by courts. The Privy Council reinforced this position in King-Emperor v. Benoari Lal, holding that the Governor-General was not even required to state that an emergency existed or explain its nature, provided he acted bona fide within his statutory powers. These pre-Constitution authorities continued to be cited by the Supreme Court while interpreting the President's power under Article 123 and the Governor's power under Article 213, as in S.K.G. Sugar Ltd. v. State of Bihar, where the Court held that the Governor's satisfaction as to the necessity for an ordinance was a matter of purely subjective satisfaction, not justiciable in the ordinary sense.

Judicial Institutions Carried Forward

The Act of 1935 also established the Federal Court, which functioned as a precursor to the Supreme Court of India, and vested the High Courts with a power of superintendence over subordinate courts under Section 224 of that Act. This provision was itself a reproduction of an earlier provision from the 1919 Act, and the Supreme Court, in Waryam Singh v. Amarnath, traced the lineage of the modern power of superintendence under Article 227 of the Constitution back through Section 224 of the 1935 Act to Section 107 of the 1919 Act, showing an unbroken thread of continuity in the judicial architecture of India across three constitutional regimes.

Continuance After Independence

The 1935 Act was formally repealed by Article 395 of the Constitution of India, but its practical legacy did not vanish overnight. Article 372(1) expressly continued in force all laws that were in operation immediately before the commencement of the Constitution, until altered, repealed, or amended by a competent legislature, which meant that the entire body of pre-Constitution statutory and non-statutory law, including rules, regulations, and even certain common law principles, remained operative and had to be tested for validity only against the constitutional provisions actually in force at the relevant time.

Assessment of the 1935 Act