The Government of India Act 1935: the Federation That Never Came

and in the Federation so established there shall be included the Provinces called Chief Commissioners' Provinces.

Notice the asymmetry, because it is the whole political difficulty of 1935 in one subsection. The Provinces are in the federation because Parliament says so: they have no choice, and they are named as being united by the Proclamation. The States are in the federation only if they accede, one by one, each on its own terms. A federation half of whose units may decline to join is a federation that may never begin, and this one never did.

Section 5(2) states the condition, and it has two limbs, both of which had to be met:

• (a) States whose Rulers would be entitled, under Part II of the First Schedule, to choose not less than fifty-two members of the Council of State; and
• (b) States whose aggregate population amounts to at least one half of the total population of the States,

must have acceded to the Federation.

Fifty-two of the Council of State's princely seats, and half the population of princely India. Neither was ever reached.

Section 6: the Instrument of Accession

Section 6 is the mechanism, and it is the most instructive section in Part II for a student who will later study article 1 and the Instruments of Accession of 1947, which were executed under this very machinery as continued by the Indian Independence Act.

6(1): a State is deemed to have acceded if His Majesty has signified his acceptance of an Instrument of Accession executed by the Ruler, by which the Ruler, for himself, his heirs and successors:

• (a) declares that he accedes to the Federation, with the intent that the King, the Governor-General, the Federal Legislature, the Federal Court and any other Federal authority shall, subject always to the terms of the Instrument and for the purposes only of the Federation, exercise in relation to his State such functions as are vested in them by the Act; and
• (b) assumes the obligation of ensuring that due effect is given within his State to the provisions of the Act so far as they apply there by virtue of the Instrument.

6(2) is the heart of it: the Instrument shall specify the matters which the Ruler accepts as matters on which the Federal Legislature may make laws for his State, and the limitations, if any, on that power and on the executive authority of the Federation in his State.

So there was no uniform federal power over the States. Each acceding State drew its own line, and the Federation's authority in Hyderabad might differ from its authority in Mysore. 6(3) allowed a Ruler to extend those functions later by a supplementary Instrument.

6(4): nothing requires His Majesty to accept an Instrument, and he may not accept one whose terms are inconsistent with the scheme of Federation; but once the Federation is established and an Instrument has in fact been accepted, its validity shall not be called in question, and the Act has effect in relation to that State subject to the Instrument.

6(5): it is a term of every Instrument that the provisions listed in its Second Schedule may be amended by or by authority of Parliament without affecting the accession, but no such amendment extends the Federation's functions in the State unless the Ruler accepts it by a supplementary Instrument.

6(6): the Instrument is invalid unless executed by the Ruler himself, subject to the case of a minority or other incapacity.

6(7): after the Federation is established, a Ruler's request to be admitted goes to His Majesty through the Governor-General; and after twenty years the Governor-General may not transmit such a request until each Chamber of the Federal Legislature has presented an address praying for the admission.

6(8) gives the name: an acceded State is a Federated State. 6(9) requires copies of every Instrument and Acceptance to be laid before Parliament, and provides that all courts shall take judicial notice of them, which is why the Federal Court could read an Instrument as a source of its own jurisdiction.

Sections 7 and 8: the federal executive

Section 7(1): the executive authority of the Federation shall be exercised on behalf of His Majesty by the Governor-General, either directly or through officers subordinate to him. The Federal Legislature may confer functions on subordinate authorities, and nothing in the section transfers to the Governor-General any function conferred by existing Indian law on a court, a judge or a local authority. Compare article 53(1) of the Constitution, which puts the executive power of the Union in the President and has him exercise it directly or through subordinate officers.

7(2) defines "the functions of the Governor-General" as his powers and duties in the exercise of the federal executive authority and any others imposed on him as Governor-General, other than powers assigned to him by His Majesty under Part I. 7(3) applies the Third Schedule to his salary and allowances.

Section 8(1): the executive authority of the Federation extends to the matters on which the Federal Legislature has power to make laws; to the raising of naval, military and air forces in British India and the governance of His Majesty's forces on the Indian establishment; and to the exercise of the rights and jurisdiction exercisable by His Majesty in relation to the tribal areas. That first limb is the rule the Constitution kept in article 73: executive power follows legislative power.

The provisos matter. The federal authority does not extend to provincial legislative matters except as expressly provided; in a Federated State it extends only to matters on which the Federal Legislature may make laws for that State, subject to the limitations in that State's Instrument of Accession; enlistment is confined to His Majesty's subjects, natives of India or of adjacent territories; and commissions are granted by His Majesty.

Section 8(2): the executive authority of the Ruler of a Federated State continues in that State even on federal matters, except so far as the federal executive authority becomes exercisable to the exclusion of the Ruler's by virtue of a Federal law. A federation in which the unit's own executive keeps working unless federal law displaces it is a federation of a very cautious kind.

Why it never happened, and what happened instead

The Proclamation section 5 required was never made, because the condition in section 5(2) was never satisfied: the necessary number of Rulers never executed Instruments of Accession. Negotiations continued through the late nineteen thirties and were abandoned on the outbreak of war in 1939.

The Act had provided for exactly this, and the provisions that carried the interval are worth knowing, because they answer the question every student asks: if the federation never came, what law governed British India between 1937 and 1947?

Section 320(1): Part II comes into force on the date appointed by the Proclamation establishing the Federation. No Proclamation, no Part II. 320(2): the remainder of the Act comes into force on such date as His Majesty in Council may appoint, and that date is called the commencement of Part III. 320(3) allows different provisions to be brought in on different dates.

So the Act split in two at birth. Part III and the rest were brought into force by Order in Council, and provincial autonomy began in 1937; Part II sat unused until the Act itself was superseded.

Section 312: Part XIII applies to the period between the commencement of Part III and the establishment of the Federation. That Part is the transitional constitution of the centre, and these are its working provisions.

• Section 313(1): the executive authority is exercised on behalf of His Majesty by the Governor-General in Council, the old body, not by the Governor-General with a council of ministers under section 9.
• Section 314(1): the Governor-General in Council and the Governor-General remain under the general control of the Secretary of State and must comply with his directions.
• Section 316: the powers conferred on the Federal Legislature are exercisable by the Indian Legislature, and references to federal laws are read accordingly.
• Section 317(1): the provisions of the old Government of India Act set out in the Ninth Schedule, relating to the Governor-General, the Commander-in-Chief, the Executive Council and the Indian Legislature, continue to have effect notwithstanding the repeal of that Act.

Read section 317 twice. The Act of 1935 repealed the Government of India Act by section 321, and then kept part of it alive in a schedule, because the centre it was replacing that Act's arrangements with did not exist. So the Council of State and the Legislative Assembly of 1919 went on sitting, under a schedule to the Act that was supposed to have replaced them.

Section 318(1) is the other half of the answer, and it is the provision that explains the Federal Court to a student who has noticed the difficulty: notwithstanding that the Federation has not yet been established, the Federal Court, the Federal Public Service Commission and the Federal Railway Authority shall come into existence and shall perform in relation to British India the functions they were to perform in relation to the Federation when established.

That is how India got a Federal Court in 1937 without a federation. Module II tells the rest of that story.

What the Constitution kept

Almost all of it, and the borrowings are worth listing because MU asks about them.

• The three Lists and the residuary power, from Part V and the Seventh Schedule.
• Executive power follows legislative power, from section 8(1), now article 73.
• A Federal Court with original, appellate and advisory jurisdiction, now articles 131, 132 to 134 and 143.
• Emergency provisions, the Governor's and Governor-General's special responsibilities becoming, in altered form, articles 352 to 360 and 356.
• The office of Auditor-General, the Public Service Commissions, and the superintendence of subordinate courts by the High Court in section 224, now article 227.

And the great thing it did not keep: the Constitution's units did not accede. Article 1 declares a Union of States and no State had a choice about being in it, which is the deliberate reversal of section 5 and section 6.

A worked example

Take the Ruler of a substantial Indian State in 1938, deciding whether to accede.

What is he being asked to sign? An Instrument of Accession under section 6(1), declaring that he accedes to the Federation with the intent that the King, the Governor-General, the Federal Legislature, the Federal Court and any other federal authority shall exercise in relation to his State such functions as are vested in them by the Act, subject always to the terms of the Instrument, and undertaking to ensure that due effect is given within his State to the Act so far as it applies there.

What does he control? By section 6(2), the Instrument itself specifies the matters on which the Federal Legislature may make laws for his State and any limitations on that power and on the federal executive authority in his State. He may accede for defence and external affairs and nothing else if he chooses.

Can he be forced to give more later? No. By 6(3) an extension requires a supplementary Instrument executed by him, and by 6(5) even an amendment made by Parliament to the scheduled provisions does not extend the federal functions in his State unless he accepts it in a supplementary Instrument.

What if His Majesty will not accept his terms? By 6(4) His Majesty need not accept an Instrument, and may not accept one inconsistent with the scheme of Federation; but once the Federation is established and an Instrument has been accepted, its validity cannot be called in question.

And what happens if enough Rulers decline? Exactly what did happen. The condition in section 5(2) is never satisfied, no Proclamation is made under section 5(1), Part II never comes into force by section 320(1), and British India is governed at the centre under Part XIII, with the Governor-General in Council under section 313 and the old Act's provisions kept alive by the Ninth Schedule under section 317.

What beginners get wrong

"The Government of India Act 1935 established a federation in India." It provided for one. Section 5 required a Proclamation, and the Proclamation required accessions that never came. The federal part of the Act never came into force.

"Dyarchy was abolished by the Act of 1935." In the provinces, yes: Part III gave provincial autonomy. But dyarchy was moved to the centre, where the Governor-General was to administer defence, external affairs, ecclesiastical affairs and the tribal areas in his discretion and the rest with ministers. Since the federation never came, central dyarchy never operated either.

"Instruments of Accession were invented in 1947." They were invented by section 6 of this Act, in 1935. The Instruments executed in 1947 were executed under the machinery of the 1935 Act as adapted by the Indian Independence Act.

"The Act was a dead letter." It governed the provinces from 1937, it created the Federal Court, and it was the working constitution of India from 1947 to 1950 as adapted by the Indian Independence Act. Only Part II was a dead letter.

Limits and criticism

The scheme was conditional on the consent of rulers who had no reason to consent. A prince who acceded gave a federal legislature in which he was outnumbered the power to make law for his State, and got in return a share in a centre whose real powers over defence and external affairs were reserved to the Governor-General anyway. Section 6(2) let him limit his exposure, and most of them limited it to nothing at all by not acceding.

The federation was to be unequal by design. The Rulers were to choose their representatives, not their subjects. In a Council of State in which the States held a third of the seats, a third of the federal upper chamber would have been nominated by princes.

And the safeguards emptied the transfer. Even in the federation that was planned, the Governor-General had reserved departments, special responsibilities, an overriding power to legislate and control of the finances of defence. Congress said in 1935 that the Act offered responsibility without power, and, on the federal side, the criticism was hard to answer.

What can be said for it is what the Constituent Assembly said with its drafting pen: the Act was a competent piece of constitutional engineering, and when Indians came to write their own constitution they used most of its machinery and changed the sovereign behind it.

Quick revision

• 321 sections and ten schedules, the longest Act Parliament had passed.
• s.5(1): His Majesty may declare by Proclamation, on an address from each House of Parliament and on the condition being satisfied, a Federation of India uniting the Governors' Provinces and the acceding Indian States, and including the Chief Commissioners' Provinces.
• s.5(2): the condition. States entitled to choose not less than fifty-two members of the Council of State, and States with at least one half of the total population of the States, must have acceded. Never satisfied.
• s.6: Instrument of Accession, executed by the Ruler and accepted by His Majesty; 6(2) it specifies the matters on which the Federal Legislature may make laws for that State and the limitations; 6(3) supplementary Instruments; 6(4) acceptance discretionary but unimpeachable afterwards; 6(8) an acceding State is a Federated State; 6(9) courts take judicial notice.
• s.7: the executive authority of the Federation is exercised on behalf of His Majesty by the Governor-General.
• s.8(1): it extends to the matters on which the Federal Legislature may make laws, to the forces, and to the tribal areas, subject to the Instrument of Accession in each State. 8(2): the Ruler's own executive authority continues until displaced by federal law.
• s.320: Part II on the Proclamation date, the rest by Order in Council. s.312 to s.318: the transitional centre, the Governor-General in Council, the Secretary of State's control, the Indian Legislature exercising federal powers, the Ninth Schedule keeping the old Act alive, and the Federal Court coming into existence although the Federation had not.

Test yourself

1. What two things had to happen before the Federation of India could be established? An address to His Majesty from each House of Parliament, and the satisfaction of the condition in section 5(2): accession by States whose Rulers could choose not less than fifty-two members of the Council of State and whose aggregate population was at least half the total population of the States. His Majesty would then declare the Federation by Proclamation.

2. What was an Instrument of Accession, and what did it have to specify? A document executed by the Ruler of an Indian State, and accepted by His Majesty, by which the Ruler acceded to the Federation and undertook to give effect to the Act within his State. By section 6(2) it had to specify the matters which the Ruler accepted as matters on which the Federal Legislature might make laws for his State, and any limitations on that power and on the federal executive authority there.

3. If the federation never came into being, how was the centre governed from 1937? Under Part XIII. By section 313 the executive authority was exercised by the Governor-General in Council; by section 314 he remained under the control of the Secretary of State; by section 316 the Indian Legislature exercised the powers given to the Federal Legislature; and by section 317 the provisions of the old Government of India Act set out in the Ninth Schedule continued in force despite that Act's repeal.

4. How could there be a Federal Court when there was no federation? By section 318(1), which provided expressly that notwithstanding that the Federation had not been established the Federal Court, the Federal Public Service Commission and the Federal Railway Authority should come into existence and perform in relation to British India the functions they were to perform for the Federation.

5. Name three things the Constitution of India took from this Act. The three Lists and the distribution of legislative powers; the rule that executive power extends to the matters on which the legislature may make laws, now article 73; and a court above all the High Courts with original, appellate and advisory jurisdiction, now the Supreme Court under articles 131, 132 to 134 and 143. The emergency provisions, the Public Service Commissions, the Auditor-General and the High Court's power of superintendence are further examples.