The Government of India Act 1935: the Federal Legislature

18(3): representatives chosen as provided in the First Schedule.

18(4): the Council of State is a permanent body not subject to dissolution, and as near as may be one third retire every third year. That is article 83(1) of the Constitution, and the Rajya Sabha's biennial retirement is its direct descendant with the period altered.

18(5): every Federal Assembly continues for five years unless sooner dissolved, and the expiry of the five years operates as a dissolution. Compare article 83(2).

Sections 19 to 29: sessions, officers and members

19(1): the Chambers shall meet at least once every year, and twelve months shall not intervene between the last sitting of one session and the first of the next. Article 85(1) says six months.

19(2): the Governor-General may in his discretion summon, prorogue, and dissolve the Federal Assembly.

Section 20: he may address either Chamber or both together, requiring attendance, and may send messages which the Chamber must consider with all convenient dispatch. Articles 86 and 87.

Section 21: every minister, counsellor and the Advocate-General has the right to speak in either Chamber and its committees, but not to vote unless he is a member. Article 88.

Section 22: the Council of State chooses a President and Deputy President, removable by a resolution of a majority of all the then members on fourteen days' notice. Article 90 and article 94 use the same technique. Section 23 gives the presiding officer a casting vote only.

Section 24: an oath before the Governor-General in a form set out in the Fourth Schedule. Section 25: nobody may be a member of both Chambers.

Section 26 lists the disqualifications, and the list is the ancestor of article 102: an office of profit under the Crown unless declared not to disqualify, unsound mind so declared by a competent court, undischarged insolvency, conviction or a finding of a corrupt or illegal practice at an election, and conviction of an offence with a sentence of transportation or of imprisonment for not less than two years, subject to a period after release. Section 27 imposes a penalty of five hundred rupees a day on a person who sits or votes while disqualified, recoverable as a debt due to the Federation; article 193 keeps the technique.

Section 28: freedom of speech in the Legislature, and no member liable to proceedings in any court for anything said or any vote given, and no person liable for a publication made by or under the authority of a Chamber. That is article 105.

Section 29: salaries and allowances as the Federal Legislature may determine.

Sections 30 to 32: how a Bill became law

30(1): subject to the financial provisions, a Bill may originate in either Chamber. 30(2): it is not passed unless agreed to by both Chambers. 30(3): a pending Bill does not lapse on prorogation. 30(4) and (5): a Bill pending in the Council of State that the Assembly has not passed does not lapse on a dissolution of the Assembly; a Bill pending in the Assembly, or passed by the Assembly and pending in the Council of State, does lapse. Article 107(3) to (5) reproduces all of it.

Section 31 is the deadlock provision, and it is worth comparing with article 108 closely because the differences are the point.

Where a Bill passed by one Chamber is rejected by the other, or the Chambers have finally disagreed on amendments, or more than six months have elapsed from the reception of the Bill without its being presented for assent, the Governor-General may notify his intention to summon a joint sitting. He may then summon it at any time in the next session after six months from the notification, and at the joint sitting the Bill passes if carried by a majority of the total number of members of both Chambers present and voting.

The proviso is the interesting part. If the Bill relates to finance, or to any matter affecting the discharge of the Governor-General's discretionary functions, he may notify a joint sitting even though there has been no rejection and no disagreement and no six months have passed, if he is satisfied there is no reasonable prospect of the Bill reaching him without undue delay; and he may then summon the sitting at any date. By 31(3) those powers are exercised in his discretion.

So a joint sitting under the Constitution is a way of resolving a deadlock between two Houses. A joint sitting under section 31 was also a way for the Governor-General to force a finance Bill through a legislature that had not rejected anything.

Section 32: when a Bill has been passed, it is presented to the Governor-General, who in his discretion declares that he assents in His Majesty's name, or withholds assent, or reserves the Bill for the signification of His Majesty's pleasure; or he may return it with a message asking the Chambers to reconsider it, which they must do. 32(2): a reserved Bill does not become an Act unless within twelve months the Governor-General notifies that His Majesty has assented. 32(3): an Act assented to may be disallowed by His Majesty within twelve months, and becomes void from the date of the notification of disallowance.

Assent, withholding, reservation, return, and disallowance after the event: five ways to stop a Bill, of which article 111 keeps two.

Sections 33 to 37: the money, and what could not be voted on

This is where the Act's real distribution of power appears, and it is the part students most often skip.

Section 33(1): the Governor-General shall cause an annual financial statement of estimated receipts and expenditure to be laid before both Chambers. Article 112 uses the same words.

33(2) and (3): the estimates must show separately the sums for expenditure charged upon the revenues of the Federation, and the sums for other expenditure; and must indicate any sums included only because the Governor-General directed their inclusion as necessary for the discharge of his special responsibilities. Charged expenditure included the Governor-General's own salary and establishment, debt charges, the salaries of ministers, counsellors, the financial adviser, the Advocate-General and chief commissioners, and the salaries, allowances and pensions of the judges of the Federal Court and pensions of High Court judges.

Section 34(1): charged expenditure shall not be submitted to the vote of the Legislature, though it may be discussed except for the two most sensitive heads. 34(2): the rest is submitted as demands for grants, first to the Federal Assembly and then to the Council of State, and either Chamber may assent, refuse, or assent subject to a reduction. 34(4): no demand may even be made except on the recommendation of the Governor-General. Article 113 keeps 34(1), (2) and (4) almost word for word, with the President in place of the Governor-General and the Rajya Sabha excluded from voting.

Section 35 is where the safeguard bites. The Governor-General authenticates by his signature a schedule of the grants made and the charged sums; and if the Chambers have refused a demand or reduced it, and in his opinion the refusal or reduction would affect the due discharge of any of his special responsibilities, he may include in the schedule such additional amount as appears to him necessary, not exceeding the amount refused or the reduction.

Read that against section 34(2). The Chambers could refuse a grant, and the Governor-General could put the money back. That is the difference between a legislature that controls the purse and one that is consulted about it.

Section 36 applies the same machinery to supplementary expenditure, as article 115 does.

Section 37(1): a Bill or amendment for imposing or increasing a tax, for regulating borrowing or federal financial obligations, or for declaring expenditure to be charged on the revenues of the Federation, may not be introduced or moved except on the recommendation of the Governor-General, and such a Bill may not be introduced in the Council of State. 37(3): a Bill involving expenditure may not be passed by either Chamber unless the Governor-General has recommended its consideration. Article 117 is the same section with the President substituted.

Sections 38 to 41: procedure

Section 38: each Chamber may make rules of procedure, but the Governor-General in his discretion, after consulting the President or the Speaker, makes rules for business affecting his discretionary functions. Section 39: proceedings in the English language, with provision for members not sufficiently acquainted with it. Section 40(1): no discussion of the conduct of a judge of the Federal Court or a High Court in the discharge of his duties, which is article 121. Section 41(1): the validity of proceedings shall not be called in question on the ground of any alleged irregularity of procedure, which is article 122.

Sections 42 to 44: the three ways of legislating without the Legislature

These are the sections to know, because MU can ask about them directly and because one of them survived into the Constitution and two did not.

Section 42: ordinances when the Legislature is not in session. If the Governor-General is satisfied that circumstances exist rendering immediate action necessary, he may promulgate ordinances. An ordinance has the same force and effect as an Act, but must be laid before the Legislature and ceases to operate at the expiration of six weeks from the reassembly of the Legislature, or earlier if both Chambers pass resolutions disapproving it; it is subject to disallowance by His Majesty; it may be withdrawn at any time; and it is void so far as it makes provision the Federal Legislature could not enact. That is article 123, six weeks and all.

Section 43: ordinances at any time, for his discretionary functions. If the Governor-General is satisfied that immediate action is necessary to enable him to discharge functions he exercises in his discretion or in his individual judgment, he may promulgate an ordinance, and it continues for up to six months and may be extended by a further six months. This one does not depend on the Legislature being out of session, and the Legislature cannot vote it down. It has no counterpart in the Constitution.

Section 44: a Governor-General's Act. If it appears to him that legislation is essential to enable him to discharge his discretionary functions, he may by message explain the circumstances to both Chambers, and either enact forthwith, as a Governor-General's Act, the provisions he considers necessary, or attach a draft Bill and enact it after one month, having considered any address presented by either Chamber. Such an Act has the same force as an Act of the Federal Legislature, is void so far as it exceeds federal competence, and must be communicated to the Secretary of State and laid before each House of Parliament. By 44(5) the power is exercised in his discretion.

So the Governor-General could make law that the legislature had refused, could make it permanent, and had to tell only London. Section 44 is the 1935 successor of the certification power in section 27 of the Act of 1919, made wider: certification needed a Bill that a Chamber had refused, and a Governor-General's Act needed nothing but his own opinion that legislation was essential.

Section 45: the failure of constitutional machinery

If the Governor-General is satisfied that a situation has arisen in which the government of the Federation cannot be carried on in accordance with the provisions of this Act, he may by Proclamation declare that his functions shall be exercised in his discretion, and assume to himself all or any of the powers vested in any Federal body or authority, including power to suspend provisions of the Act relating to them.

One exception is written into the proviso: he may not assume the powers of the Federal Court, and may not suspend any provision of the Act relating to it. The court was to survive the failure of everything else.

The Proclamation must be communicated to the Secretary of State and laid before each House of Parliament. Any student who has read article 356 will recognise the phrase "cannot be carried on in accordance with the provisions of this Constitution", and article 356's proviso, which likewise protects the High Court's powers, comes from this proviso.

A worked example

Assume the Federation had been established, and follow one Bill through it.

A Bill to raise the federal income tax. By section 37(1) it may not be introduced or moved except on the recommendation of the Governor-General, and it may not be introduced in the Council of State: it must start in the Federal Assembly.

The Assembly passes it; the Council of State rejects it. By section 31(1)(a) the Governor-General may notify his intention to summon a joint sitting. Because the Bill relates to finance, the proviso lets him do so at once, without waiting six months, and by 31(3) he exercises that power in his discretion.

At the joint sitting the Bill passes if carried by a majority of the total number of members of both Chambers present and voting, and is then deemed to have been passed by both Chambers under 31(4).

It goes to the Governor-General. Under section 32(1) he may assent in His Majesty's name, withhold assent, reserve it for His Majesty's pleasure, or return it with a message asking the Chambers to reconsider it. If he reserves it, it does not become an Act unless within twelve months he notifies His Majesty's assent; and even after his own assent, His Majesty may disallow it within twelve months under 32(3).

Now take the money instead of the Bill.

The Assembly refuses the demand for a grant for the Governor-General's reserved departments. By section 34(2) it may refuse; by the proviso the demand does not go to the Council of State unless he directs. But by section 35 he may, if in his opinion the refusal would affect the due discharge of a special responsibility, include the amount in the authenticated schedule anyway, up to the amount refused.

And if the Legislature will not pass a law he thinks essential to a discretionary function? He may promulgate an ordinance under section 43 lasting six months and renewable, or enact a Governor-General's Act under section 44, which is permanent and needs only to be laid before Parliament.

What beginners get wrong

"The Federal Legislature under the 1935 Act was elected." Partly. The British Indian seats were filled under the First Schedule, largely by indirect election; the States' seats, up to 104 of 260 and 125 of 375, were filled by the Rulers' nominees.

"The 1935 Act gave the legislature control of the budget." It gave it a vote on part of the budget. Charged expenditure was not votable at all under section 34(1); no demand could be made without the Governor-General's recommendation under section 34(4); and under section 35 he could restore what the Chambers cut, if he thought his special responsibilities required it.

"A Governor-General's Act is the same as an ordinance." An ordinance under section 42 lapses six weeks after the Legislature reassembles. A Governor-General's Act under section 44 is permanent legislation, and the Chambers can only address him about it.

"Article 356 was an Indian invention." Its language and its structure, including the protection of the courts, come from section 45 of this Act and its provincial twin.

Limits and criticism

The federal scheme was responsibility hedged by safeguards. Defence, external affairs, ecclesiastical affairs and the tribal areas were to be administered by the Governor-General in his discretion; a large part of the expenditure was charged and unvotable; and sections 42, 43, 44 and 45 gave him a legislative power that no chamber could reach.

The States' representation was the deal-breaker. A third of the popular chamber and two fifths of the upper chamber were to be filled by the nominees of Rulers who were not answerable to their own subjects, and who were, on any view, likely to vote with the Government.

And the whole design was never tested. It is easy to be severe about a constitution that never operated, and fair to record what the Constituent Assembly did with it: they took the two chambers, the permanent upper house with a third retiring, the joint sitting, the annual financial statement, charged expenditure, the demands for grants, the recommendation for money Bills, the ordinance power, the ban on discussing a judge's conduct, and the failure-of-machinery Proclamation, and they removed the Governor-General's discretion from every one of them.

Quick revision

• s.18: Federal Legislature of His Majesty represented by the Governor-General and two Chambers, the Council of State (156 British Indian, up to 104 States) and the Federal Assembly (250 and up to 125). The Council of State is permanent, one third retiring every third year; the Assembly lasts five years.
• s.19: at least one session a year, twelve months between sittings; the Governor-General summons, prorogues and dissolves in his discretion.
• ss.20 to 29: address and messages; ministers may speak but not vote; President and Deputy President; oath; disqualifications in s.26; five hundred rupees a day in s.27; freedom of speech in s.28.
• s.30: a Bill may start in either Chamber; both must agree; lapse on dissolution follows the Assembly, not the Council of State.
• s.31: joint sitting on rejection, final disagreement or six months delay, decided by a majority of members of both Chambers present and voting; and, for finance or his discretionary functions, the Governor-General may call one immediately.
• s.32: assent, withholding, reservation for His Majesty (twelve months), return for reconsideration, and disallowance by His Majesty within twelve months.
• ss.33 to 37: the annual financial statement; charged expenditure not submitted to the vote; other expenditure as demands for grants, which either Chamber may refuse or reduce; no demand without the Governor-General's recommendation; and s.35, under which he may restore a refused or reduced grant for a special responsibility. Money Bills only on his recommendation and only in the Assembly.
• ss.38 to 41: rules of procedure; English; no discussion of a judge's conduct; no challenge for irregularity of procedure.
• s.42 ordinance when the Legislature is not in session, lapsing six weeks after reassembly. s.43 ordinance for discretionary functions, six months and renewable. s.44 Governor-General's Act, permanent, laid before Parliament.
• s.45: Proclamation on the failure of constitutional machinery, assuming the powers of any federal authority, except the Federal Court.

Test yourself

1. Describe the composition of the Federal Legislature under section 18, and say what was objectionable about it. His Majesty represented by the Governor-General and two Chambers: a Council of State of 156 British Indian and up to 104 States' representatives, permanent with a third retiring every third year, and a Federal Assembly of 250 and up to 125, lasting five years. The objection was that the States' members, a third of the Assembly and two fifths of the Council of State, were nominees of the Rulers and not elected by anybody, and the States were over-represented against their population.

2. In what two ways did section 31 differ from article 108 of the Constitution? The power to summon a joint sitting was the Governor-General's, exercised in his discretion, not the President's on a settled constitutional footing; and by the proviso he could summon one for a finance Bill, or a Bill affecting his discretionary functions, without any rejection, any disagreement or any lapse of six months, merely on being satisfied that the Bill would not reach him without undue delay.

3. What was charged expenditure, and why does it matter? Expenditure declared by the Act to be charged on the revenues of the Federation, including the Governor-General's salary, debt charges, ministers' and law officers' salaries and the salaries and pensions of judges. It matters because by section 34(1) it was not submitted to the vote of the Legislature at all, so the Chambers had no control over it.

4. Distinguish sections 42, 43 and 44. Section 42 is an ordinance made when the Legislature is not in session, which lapses six weeks after it reassembles and can be disapproved by both Chambers. Section 43 is an ordinance for the Governor-General's discretionary functions, made at any time, lasting up to six months and extendable by six more, which the Chambers cannot disapprove. Section 44 is a Governor-General's Act, permanent legislation enacted by him on his own opinion that legislation is essential for his discretionary functions, communicated to the Secretary of State and laid before Parliament.

5. What did section 45 permit, and what did it protect? On being satisfied that the government of the Federation could not be carried on in accordance with the Act, the Governor-General might by Proclamation declare that his functions be exercised in his discretion and assume the powers of any federal body or authority, suspending provisions of the Act relating to them. The proviso protected the Federal Court: he could neither assume its powers nor suspend any provision relating to it.