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AN ANALYSIS OF THE GOVERNMENT OF INDIA ACT, 1935 IN THE LIGHT OF FEDERALISM
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AN ANALYSIS OF THE GOVERNMENT OF INDIA ACT, 1935 IN THE LIGHT
OF FEDERALISM
AUTHORED BY - SUCHANA SEN
ABSTRACT
Most of the studies on federalism revolves
around the legislative, financial and administrative relations between the
Centre and the States. The Constitution of India, in nowhere, expressly
mentions that “India is a Federation” unlike the Government of India Act, 1935
from which the Indian Constitution has derived many of its essential provisions
as far as the drafting of the Indian Constitution is concerned. The Constituent
Assembly of India functioned closely within the mental framework of the
Government of India Act, 1935 with its strong unitary bias. Federalism is a
permanent process in India with a strong centralized tendency by its constitution
itself. If one goes by the origin of certain provisions depicted in The
Constitution of India, he may clearly point out the similarity between the
Constitution and Government of India Act, 1935 in some provisions. The
researcher carried out her research and found one leading key aspect of the
Government of India Act, 1935 which works as an aid in order to understand the
federal aspect.
This paper broadly discusses about
certain powers which Governor General possesses under section- 45 of the Government
of India Act, 1935 which later on kept an impact upon the introduction of
Article 352 and 356 in the Constitution of India. Articles 352 and 356 majorly
talks about the power of the president to issue certain proclamation. The paper
further discusses a little bit about the provisions of Article 356 and how it
is exercised by the President of India in order to administrate the Country
during the failure of Constitutional Machinery. Finally, the paper tries to
bridge the gap between the Historical Aspect and the Current Day Scenario as
far as Federalism is concerned.
Key words:
Government, Federalism, Constitution, Proclamation.
INTRODUCTION
TO FEDERALISM
“Federalism is more a functional
arrangement for cooperative action, than a static institutional concept.
Constitution provides a tool by the liberal use of which co-operative
federalism can be substantially realized in the working of the system. A more
generous use of this tool should be made than has hitherto been done, for
progressive decentralization of powers to the governments of the states.”[1]
The word "federation" is a
derivation from the Latin term "foedus" meaning treaties or
agreement.[2] Federalism
constitutes a complex governmental mechanism for governance of a country.[3] It
is a basic feature of the constitution and is a form of government in which the
sovereign authority of political powers are distributed to various units. In a
federal system, there is one common government for the whole country which is
variously called as Central Government. There are local governments for the
different regions in which the country is divided. These are called the State
Governments.[4] Hence,
we can see, at one level, there exists the central government having
jurisdiction over the entire country, and reaching down to the person and
property of every individual therein. On the other hand, there exist regional
governments, each of which exercises, jurisdiction in one of the administrative
units into which the country is divided under the constitution.[5] Prof.
K.C. observes that the concept of federalism means the process of division of
powers whereby both the federal as well as the regional governments are
co-ordinate and independent within their domain without any one being
subordinate to the other. Thus, federal principle can be said to be the system
which is characterised by the presence of co-ordinate and co-equal authorities
which are not subordinate to each other.[6]
Federalism in the modern age is a
principle of reconciliation between two divergent tendencies, the widening
range of common interests and the need for local autonomy. It seeks to draw a
balance between the forces working in favour of concentration of power in the
centre and those urging a dispersal of it in a number of units. It thus seeks
to reconcile unity with multiplicity, centralisation with decentralisation and
nationalism with localism.[7] Salient
features of federalism include—
1. Dual Polity
2. Distribution
of Powers
3. Written
Constitution
4. Supremacy
of Constitution
5. Federal
Court and Judicial Review
6. Rigid
Constitution
FEDERALISM
IN INDIA
In a country like India Federalism
plays one of the pivotal roles when it comes to cope up with its diversity of cultural and lingual
barriers. As people from different background and culture live together,
neither it would be possible for a single Government to make uniform law for
the whole country nor it is desirable for the interest of the people with
separate cultures, languages and diverse backgrounds. Hence, the Central
Government may make laws for the whole or any part of the territory of India.
The respective State Governments may make and implement laws according to the
social, economic and political status of the residents of different areas.
Federalism offers and enables the Central Government to focus on primary public
obligations and leaving countless ‘secondary affairs’ to the State Governments.
Federalism in India is progressing in a very impressive pace over the years to
form a predominantly parliamentary system. To sum up, In India, a federal
system of government has been adopted because it is more effective as compared
to a unitary one when the size of the territory of the country is as large as India
& when diverse groups of the population of the country reside in a discrete
territorial concentration as in India. Though according to some of the
political scientists, Indian Constitution is quasi-federal in nature and having
more unitary than the federal feature,[8] but the other group opine that it is a
federal constitution with a special and new characteristics enabling itself to
cope with emergent situation in national interest.[9]
The present federal system of India
has its background in the Government of India Act, 1919 and the Government of
India Act, 1935. The Government of India Act, 1919 made provisions for the first time for the separation
of Central and Provincial Powers making a major shift in the unitary system of
Government prevailing at that point of time.[10] The
Government of India Act, 1935 provided that the Indian Federal State was to
consist of British India Provinces and the princely states and it was to be a
centralised federation with considerable amount of autonomy for the provinces.[11] The
historical legacy, the diversified character and continental size of India, the
partial operation of federalism in the British Indian Provinces under the Act
of 1935, and the growing popularity of federalism in the 20th century as a
suitable political model for plural societies, did influence the Founding
Fathers of the Indian Constitution to adopt a federal pattern for India. Pertaining
to the matter, Dr. B.R. Ambedkar, the Chairman of the Drafting Committee
of the Indian Constitution, made a comment, “I think it is agreed that our
Constitution notwithstanding the many provisions which are contained in it
whereby the Centre has been given powers to override the Provinces (States)
nonetheless, it is a Federal Constitution”[12] He
preferred ‘Centralised Federalism’ for
India. Hence, federalism
envisaged under the Indian Constitution is greatly tilted towards the Centre.
The Centre's position and power vis-a-vis the States are so dominant and
overriding that the latter have been reduced to the level of ‘peripheral and
mendicant status.’ Moreover, the existence of states and survival of their
popular governments are depending upon the sweet will of the ‘Federal
Leviathan.’ Therefore, Indian Federalism may be characterised as ‘prefectorial
and permissive federalism’
GOVERNMENT
OF INDIA ACT, 1935 IN THE LIGHT OF FEDERALISM
Elements of federalism were first
introduced into modern India by the Government of India Act, 1919 which
separated powers between the centre and the provincial legislatures. Later on,
it was further much more specified and elaborated in the Government of India
Act, 1935[13] as
far as the concept of ‘Federalism’ in India is concerned. The Government of India
Act, 1935 made a provision for the establishment of an All India Federation
consisting of the British India Provinces & such Indian State who would
desire to come into the Federation. Under all the previous Government of India Acts,
the Government of India was unitary, but the Government of India Act, 1935 envisaged
a Federation taking the Provinces & the Indian States as one unit. However,
the accession of the States to the Federation was optional. It could not be
created until the States had provided their consent to join the Federation. At
the time of joining it, each ruler of the State was required to sign an
Instrument of Accession stating therein the extent to which it assented to
surrender its authority to the Federal Government. It abolished Dyarchy at the
Provincial level & introduced it at the Centre. The Executive Power of the
Centre was vested in the Governor-General. The researcher has identified one
key aspect of the Government of India Act, 1935 which undermines the concept of
today’s federalism in India and the power of the Governor General which lies
within the scope of section- 45 of the Government of India Act, 1935.
PROVISIONS
IN CASE OF FAILURE OF CONSTITUTIONAL MACHINERY
Section-45 of the Government
of India Act, 1935 gives---
“(1) If at any time 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--
(a) declare that his
functions shall to such extent as may be specified in the Proclamation be
exercised by him in his discretion;
(b) assume to himself
all or any of the powers vested in or exercisable by any Federal body or
authority, and any such Proclamation may contain such incidental and
consequential provisions as may appear to him to be necessary or desirable for
giving effect to the objects of the Proclamation, including provisions for
suspending in whole or in part the operation of any provisions of this Act
relating to any Federal body or authority:
Provided that nothing in this
subsection shall authorise the Governor-General to assume
to himself any of the powers vested in or exercisable by the Federal Court or
to suspend, either in whole or in part, the operation
of any provision of this Act relating to the Federal Court.
As one may observe, the referred
section clarifies the powers available to the Governor General for practicing
in case of any kind of emergency arisen. Later, we find similar provision under
article 352 and 356 of The Constitution of India where president has been given
right to issue certain proclamation if any grave emergency arises. Section 45
overall provides provision of in case of failure of constitutional machinery.
When the Government of the Federation fails to carry out administration, the
Governor General has absolute jurisdiction and authority to ask the Government
of the Federation to move out and can issue his rule throughout the entire
Federation as per his will. This function of his ruling should be specified in
the formerly issued proclamation. Functions mentioned in the proclamation must
be exercised by the Governor himself in his discretion. The Governor General
has got a finite procedure in order to carry out administration by issuing
certain proclamation. Section 45(1)(b) interprets how exactly the Governor
General may exercise the power he possesses under the proclamation. It is said
that certain powers which are exercisable only by the Government of the
Federation, can be exercised by the Governor General himself under such
proclamation issued. For example, Governor General does not have control over
Police but he may, during the period of failure of constitutional machinery can
exercise his control over the Police. Just like the previously cited example,
the Governor General, if feels that any such incidental and consequential
provision is required for him to be necessary in order to administrate the
Federation or it is essential “for giving effect to the objects of the
Proclamation, including provisions for suspending in whole or in part the
operation of any provisions of this Act relating to any Federal body or
authority”. Under no circumstances or provision the Governor General gets
authorisation to practice any of the power available exclusively to the Federal
Court. The Governor General can neither assume to himself any of the powers
vested in or exercisable by the Federal Court nor suspend, the operation of any
provision of the Government of India Act, 1935 as far as Federal Court is
concerned.
(2) Any such Proclamation may be revoked
or varied by a subsequent Proclamation
The Governor General, if thinks that
in the previously issued proclamation some sort of changes should be made or
according to the situation and circumstances at that point of time, the former
proclamation is not prompt, he can revoke the previous one or draft some
changes in the same and issue the new proclamation through a subsequent
declaration that a new proclamation is going to substitute the old one.
(3) A Proclamation issued under this
section-
(a) shall be
communicated forthwith to the Secretary of State and shall be laid by him
before each House of Parliament;
(b) unless it is a
Proclamation revoking a previous Proclamation, shall cease to operate at the
expiration of six months:
Provided that, if and so often as a
resolution approving the continuance in force of such a Proclamation is passed
by both Houses of Parliament, the Proclamation shall, unless revoked, continue
in force for a further period of twelve months from the date on which under
this subsection it would otherwise have ceased to operate.
The new proclamation issued by the
Governor General under section- 45(3) must be expressly notified and properly
communicated to the Secretary of the State. As India was following bi-cameral
legislature at that point of time, it was compulsory for the Governor General
to lay down such proclamation before every house of representatives. Once a
proclamation is issued, it will be active for six months from the date of
issuing and will stop after the mentioned period of time provided that it is
not a proclamation revoking another previous proclamation issued by the
Governor General. It is interpreted that if the proposal of issuing
proclamation is often placed before both the houses of parliaments and gets
approved frequently then that declaration may continue to be in force for the
next twelve months from the date of getting issued. (If not revoked)
§ Point to be noted, in the proviso to
clause 3(b), the period originally fixed was three months but in the House of
Lords it was extended to twelve months as it was thought, in the words of
Marquess of Zetland,“unreasonable to trouble Parliament every six months to
consider a case of this kind when the total period for which it might last was
three years.”[14]
(4) If at any time the government of
the Federation has for a continuous period of three
years been carried on under and by virtue of a Proclamation issued under this
section, then, at the expiration of that period, the Proclamation shall cease
to have effect and the government of the Federation shall be
carried on in accordance with the other provisions of this Act, subject to any amendment thereof
which Parliament may deem it necessary to make, but nothing in this subsection
shall be construed as extending the power of Parliament to make amendments in
this Act without affecting the accession of a State.
There are provisions regarding the
Government of Federation while getting controlled under the proclamation. It is
stated and elaborated under section- 45 about such provisions where a Federal
Government is turned down for three continuous years. In case, a Government of
Federation has for a continuous period of three years been carried on under and
by virtue of a Proclamation issued under section- 45, it has got rights under
the act to restore itself after the completion of the said period of time. The
certain proclamation, by which the Government of the Federation was turned down
since the past three years will lose its validity as far as administrating and
governing the Federation is concerned. After the three-year period is over, the
Government of the Federation starts working as usual in the same manner how it
used to before the proclamation forbade it to govern in order to control over
the failure of constitutional machinery. After three years, the proclamation
would stop to have any effect over the administrative system. the government of
the Federation shall be carried on in accordance with the other provisions of
the Government of India Act, 1935. It is clearly depicted that this is “subject
to any amendment thereof which Parliament may deem it necessary to make, but
nothing in this subsection shall be construed as extending the power of
Parliament to make amendments in this Act without affecting the accession of a
State.”
§ Point to be noted, Clauses 3(b) and
(4) These were added by way of amendment to the Bill to ensure that
Proclamations under this breakdown clause will in all cases come to Parliament
for approval in order to enable Parliament to review the position from time to
time. In the second place, it makes it clear that at the end of three years,
the period beyond which the Proclamations cannot run, the personal rule of the
Governor-General will cease to have effect and the formal provisions of the
Constitution will be resumed subject to any amendment thereof which Parliament
may deem it necessary to make. In the third place, it makes it clear that if
amendments are made which alter in any way the conditions under which the
Princes have acceded, the Instrument of Accession would become voidable.
Explaining the position in relation to States, the Solicitor-General said, “This
is a matter on which the States made representations and very proper
representations.” They said, “You are asking us to join a Federation in
which we have a measure of control through the responsibility at the centre. We
do not in the least complain of there being an emergency clause of this kind,
but it would not be right that the Federation should be governed under
emergency powers by the Governor-General year after year and that we should
still be held to our instrument of accession.”[15]
(5) If the Governor-General, by a
Proclamation under this section, assumes to himself any power of the Federal
Legislature to make laws, any law made by him in the exercise of that power
shall, subject to the terms thereof, continue to have effect until two years
have elapsed from the date on which the Proclamation ceases to have effect, reference in this Act to Federal Acts, Federal laws, or
Acts or laws of the Federal Legislature shall be construed as including a
reference to such a law.”
The Governor General may assume certain powers which belong to him while
issuing of a certain proclamation. During this period of time i.e. the period
when the proclamation was issued, if, the Governor General assumes the power of
the Federal Legislature, he can make laws using such power. According to the
Government of India Act, 1935, laws made during this phase by the Governor
General, are valid till two years from when the proclamation has become void in
the eyes of law and the Government of the Federation has got back its power to
administrate the Federation. If the laws made by the Governor General during
his period of tenure under proclamation does not get repealed, re-enacted or
replaced by the Houses of Parliament with a proper legislature, “any reference
in this Act to Federal Acts, Federal laws, or Acts or laws of the Federal
Legislature shall be construed as including a reference to such a law.” It
was felt that such laws should not come to an end immediately, on the other
hand it was also felt that such laws which in some cases, might be drastic
should not continue indefinitely.
(6) The functions of the
Governor-General under this section shall be exercised by him in his
discretion.
The special power available to the
Governor General under section- 45 of the Government of India Act, 1935 shall
be exercised by him only and only during any grave emergency arising due to the
failure of Constitutional Machinery. It is up to the discretion of the Governor
General where he may deem, issuing the proclamation, fit and proper.
CONCLUSION
The way India today continues to
practice federalism, has not grown overnight. It took decades and centuries in
order to get a properly shaped framework. Undoubtedly. The Government of India
Act, 1935 played a major role as far as giving shape to the Indian Federal
Polity is concerned. If one examines thoroughly the provision in the Government
of India Act, 1935 pertaining to the special powers available to the Governor
General of issuing proclamation, he can easily point out that it is the source
from where Indian Constitution has derived its major ideas of Article 352[16]
and 356[17]
pertaining to the power of President in order to control any emergency arisen
out of the failure of constitutional machinery.
When a state's constitutional
machinery fails, or a Constitutional Breakdown in a State or “otherwise” takes
place and the government of a state cannot function in accordance with the
Constitutional provisions, the President of India assumes to himself all or any
function of the State government concerned by the virtue of article 356 and
hence constitutionally it is called the “President's Rule.” In common parlance,
it is known as ‘Central Rule’, ‘New Delhi Rule’, ‘Presidential Administration’,
‘Governor's Rule’, and ‘Governor's Administration’. As there is a
constitutional limit for the operation of Presidential administration in any
State,[18]
it is being characterised as “caretaker arrangement,”[19] “temporary
rule,”[20] and
“an interim administration.” The Governor prepares a report and submits it to
the President, who, with the assistance and advice of the Council of Ministers
and Prime Minister, takes over the state government similar to that of the
Governor General used to do by the virtue of section- 45 of the Government of
India Act,1935. An example of President’s rule in India will help to comprehend
the whole idea of it. When there was no clear winner of the election in
Maharashtra in 2019, the President's rule was applied, and the state's
governor, Bhagat Singh Koshyari, assumed control of the government on behalf of
the Union.[21]
Article 356 has been a controversial
article from the Constituent Assembly itself. Some of the authors were
adamantly opposed to this Article. They were concerned that it would attempt to
revive an imperial tradition. But Dr. Ambedkar countered that “No provision
of any Constitution is immune from abuse as such and that the mere possibility
of abuse cannot be a ground for not incorporating it.”[22] A
requirement for effective governance is the distribution of power among various
organs and institutions ‘a sine qua non’ for good governance. Article
356's unusual and extraordinary powers cannot be used to advance the interests
of a political party or to topple a legitimately elected administration or the
Legislative Assembly.
The word ‘federation’ is nowhere
mentioned in the Constitution of India, 1950 and the federation existing in
India is not the result of any agreement between the States and the States have
no right to secede from the Union. In India the federal structure changes into
unitary structure to deal with national crisis and to curb separatist
tendencies. But at the same time various efforts are also being made to
increase cooperation between the Union and the States to make the federal
structure function smoothly. Thus, it can be said that India is a cooperative
or collaborative federation with a strong Centre to uphold the sovereignty,
unity and integrity of the nation.
[1] Sarkaria Commission on Centre
State Relations, India, 1983.
[2] M. Asad Malik, Changing Dimension
of Federalism in India: An Apprisal, 2 ILI Law Review, 85, 87(2019)
[3] Nuzhat
Parveen Khan, Comparative
Constitutional Law 439 (1st ed., 2015).
[4] Udai
Raj Rai, Constitutional Law-1 366 (1st ed., 2016).
[6] J.
N. Pandey, Constitutional Law Of India 17 (52nd ed., 2015)
[7] See supra note 5
[8] Id.
[9] Id.
[10] Dr. Mukesh Kumar, Nature ofIndian
Federalism: An analysis of Historical Basis and Problems,7(1) IJHSSI, 42,
43(2018)
[11] Id.
[12] Constituent Assembly Debate, Vol.
4,p. 133, Constituent Assembly Debate, Vol. 5, pp.33-36
[14] Prof.
C. L. Anand, Constitutional Law And History Of Government Of India 530 (8th
ed., 2008)
[15]
See supra note 12
[16] Article 352, The Constitution of
India, 1950
[17] Article 356, The Constitution of
India, 1950
[18] Before the 44th Constitutional Amendment, the
Presidential administration could continue, with a periodic approval of the
Parliament for three years, but this amendment reduced the maximum limit to one
year.
[19] K.N. Katju, Parliamentary Debates, Part II, Vol.
II, No. 4, March 12, 1953, Col. 1899, and Dawan S. S. Asian Recorder,
April 30- May 6, 1970, p. 9518
[20] Shukla, V. C. Lok Sabha Debates, 4th Series, Vol.
XVIII No. 4, July 25, 1968, Col. 1547
[21] Prateek Chandgothia, Analysing the
Scope of Article 356: Emergency on the Grounds of Breakdown of State
Machinery,
2 Jus Corpus L.J. 296 (2022).
[22] National Commission to Review the
Working of the Constitution, 'A Consultation Paper on Article 356 of the Constitution'
(The Hindu Centre, 2002)
Article Information
AN ANALYSIS OF THE GOVERNMENT OF INDIA ACT, 1935 IN THE LIGHT OF FEDERALISM
Authors: SUCHANA SEN
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/03/27
- Issue 7
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International Journal for Legal Research and Analysis
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