Act of 1935 PART IV

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Read Part III:

By Naveed Tajammal naveed-pic

The British Imperialists,had thrust on us,by virtue of Govt of India Act, the clause of Federation,and the cause of our present problems, which persists in all our Constitutions. The requisites of a Federation are quite different, and the term implies a state entity within the fold of a centre. Whereas, Pakistan never had State entities as the term goes,when the Act was passed. We had a Sindhi Province ,a Punjab,a NWFP and Baluchistan as per the Act. The War for Liberation brought in the AJK and Northern areas post 1947. Hence it is being explained how the USA and it’s Federation cannot be compared to Pakistan as was done in the previous articles and the concluding one.

The Confederacy which existed in USA till 1789, of thirteen states,the term “Confederacy” and meaning generally is a league or union,of states or individuals, in a nutshell,it implies a temporary league of independent states for a certain purpose. It was after 1789, that the term Federation came into the use in USA, Federation, now meant a closer union. This distinction was emphasised during the American Civil war between north and south(1861-1865), the seceding forming again a Confederation,which had earlier lasted till 1789, in opposition to the Federal Union.

The system of a federal state as in USA was based,in it’s own way,each state of USA is an independent state,as stated earlier it is a new country composed of different nations whereas,Pakistan is a new name yet we trace our past in a remote time. And have flourished as an entity,as a whole since then.

To further explain the American States composition and functions which has no bearing to our lands,as British ruled over us for barely a little over a hundred years.The point to note is,they did not settle us, like was the case of Australia too,a penal settlement initially hence it justified the Common Wealth Act of 1900 on the Australians.But the Act of 1935, with reference to Federation could not have been and,should not have been,enacted on us.

In the American State ,the powers of a state are inherent, not delegated,each retains all such rights and functions,of an independent government, each has it’s own documentary Constitution,it’s legislature of two elective houses,it’s executive consisting of a Governor and other officials, it’s judiciary whose decisions are final,except in cases involving Federal law; it’s system of local government and local taxation,it’s revenue, system of taxation and debts;it’s body of private,civil and criminal law and procedure ;it’s rules of citizenship. An American, may,through his life,never be reminded of the Federal Government, except when,he votes at Federal elections,his direct taxes are paid to officials,acting under the state laws. Lastly the Constitution of each State is formed and enacted by the State itself, save those states which were not a part of the old Federal Union.And, had joined later, even in such states,the Constitution derives it’s force,not from the national government,but from the people of the state.

When in 1776, the thirteen colonies threw off their allegiance to the British Crown,and took the title of States,they proceeded to unite themselves in a league by the Articles of Confederation of 1781.This scheme of Union proved defective, for it’s central authority and assembly called,”Congress” was THEN, hopelessly weak. It had neither an executive,nor a judiciary ,nor had it proper means of coercing a recalcitrant state. It’s weakness became so apparent, especially, after the pressure of the war,with British had been removed. That the opinion of the wisest men called for a closer and more effective union and thus the present original Constitution(minus the amendments),was drafted by a convention in 1787, was ratified,by nine states(the prescribed number).In 1788, and was set, to work under George Washington as the first President in 1789. The original Constitution was a short document with only 7 Articles,sub divided into sections.

Now to compare this with Act of 1935 is an altogether wrong approach as this Act was the outcome of long constitutional developments,based on Government of India Act 1858 by which the Crown, took over from East India Company. The Act of 1909, which had introduced elective principles,the Act of 1919 which introduced provincial dyarchy and some nation building subjects such as education which had already been introduced in the schooling systems of British India in the 19th Century as per the policy of Lord Macaulay vide his address to the British Parliament on 2nd February 1835.

Unfortunately, when this educational system was introduced and enforced ,it had already been well perfected in India and also the methodology of education had been refined by the hired and trained people to implement the British policies.

By virtue of the Act of 1919,the core subjects like law,order and finance were held by officials appointed by and responsible to British Governors and ultimately to the British Parliament.The Simon Commission in 1927 was greeted by black flags and hartals as it was composed of only the British with no Indian Representation.In a nutshell, this report proposed ,”the setting up of an All India Federation in a distant future”. The Indian Round table Conferences 1931 -1933 composition of which had men, who never decided an issue, which was in fact the objective of the British in the first place and hence the composition of such men in these round table conferences. So,the British could do as they pleased and eventually blame it on the natives, for,”lack of decision”. So as the British wanted it,it was decided;that,both the British India and the princely states would be integrated into an eventual Federal Dominion of India. Here again, the leaders of Congress and Muslim League could not arrive at any agreement, on how,this Federation would be structured ie how power was to be shared and how minority Muslims were to be protected from Hindu persecution, this resulted in letting the conservative dominated British Government, free to draft a legislative proposals in line with its own views, a joint select committee,chaired by Lord Linlithgow,received a draft paper termed as a ,”White Paper” and thus the Government of India Act 1935 was framed. In order to ,appease the die hearts of British Conservative Government, certain safeguards were strengthened. Indirect elections were reinstated for the Federal Assembly(Lower House). Among other things theAct continued to deny the British Indians the right to draft or modify their own Constitution.

The Act of 1935, was the longest Bill ever passed by a Parliament,a good constitution should clearly set out over arching principles,”Not lawyers small print”, the most successful Constitution ever is indeed that of USA, as described in my article with reference to the Federation aspect only.The reason of this long draft was the British Parliaments lack of trust of the politicians in particular.

After Independence Act of 1947 with a few amendments in the Act of 1935 it became the functioning interim constitution of Pakistan. Earlier, the objective of British in enacting this Act was to make a tailor made Constitution,to fulfill the requirement of British needs and it was expected that the Act was to lead to a nominally dominion status India, conservative in outlook,dominated by an alliance of Hindu princes by this stance, the Muslim and the right wing Hindus would have then,naturally,seeked the guidance and protection of the British Government,assure stalemate like situation.

As stated earlier,after the Independence Act of 1947,we as a nation,should have with the help of good jurists,drafted our own Constitution as per own requirements.It is true that we have a massive population growth,we have to and need to,clear our stables.The geographic entities ,a legacy of British Raj should be removed ,a nation which has always existed can never be classed as a Federation. No colonists or charter companies brought in settlers in our Indus Basin. Circumstances forced on us, a British Rule.We must break the chains and re-emerge as one nation as one state.From north to south,east to west.And keeping in view the number of our population,as many provinces as feasible.

If the Indians want to retain the federation aspect,they have truly the grounds for separate entities, a pre-requisite for a Federation.
(The End).

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