The Indian independenceAct 1947 & Birth of IndianConstitution
Content1. Acknowledgement2. Introduction3. History4. Of the Indian independence act 19475. Effects of the Indian independence act, 19476. Constitutional position of Indian states after the Indian independence Act 1947.7. India’s status in commonwealth nations8. Birth of Indian constitution9. Constituent Assembly10. Bibliography
AcknowledgementWe are very grateful to the Principal Dr. J.P. Bora of Department ofLaw, University Law Collage Guwahati University for giving us such avaluable topic dissertation. This will help us in the detail study of dtopic. We are highly indebted to our revered lecturer Mrs. MalavilaTalukdar for her invaluable guidance in carrying out the work. Withouther inspiration, suggestion and encouragement in every step of thework, it would not have been completed. We express our sinceregratitude to the authors whose precious writings have either been usedor applied in the work.Submitted by,Khanindra Soud. Roll no. 237/10Sanket Gogoi. Roll no. 241/10Sahid Arzan. Roll no. 236/10Monalisa Das. Roll no. 240/10Hirok Jyoti Das. Roll no. 238/10Arun Sarkar. Roll no. 239/10
Indian Independence Act, 1947 and birth of IndianconstitutionIntroduction-He Indian Independence Act 1947 was the legislation passed andenacted by the British Parliament that officially declared theIndependence of India. The Parliament of the United Kingdom passedthe Act which partitioned British India into 2 separate and independentcountries, India and Pakistan. The legislation of Indian IndependenceAct was designed by the Prime Minister Clement Attlee as IndianPolitical Parties agreed on the transfer of power from the BritishGovernment to the independent Indian Government and the Partitionof India. This act received royal assent on 18th July, 1947.TheAgreement was made with Lord Mountbatten, which was known as the3 June Plan or Mountbatten Plan. The 2 newly formed countries ofIndia and Pakistan came into existence from 15th August, in the year1947.
History of Indian Independence Act 1947On 3rd June 1947, a plan was announced that was proposed by theBritish government which included the following principles:* Principle of Partition of India was approved by the BritishGovernment* Successor governments would receive dominion status* Implicit right to secede from the British Commonwealth ClementAttlee, the Prime Minister of the United Kingdom, announced on 20thFebruary, 1947 that the British Government would grant full selfgovernment to British India latest by June 1948. Moreover, the futureof Princely States would be decided after the date of final transfer isdecided and the Indian Independence Act 1947 was theimplementation of June 3 Plan.Indian Independence Act was passed in June 1947, which specified thefollowing:* The British rule of India should be over on the midnight of August 15,1947.
* An independent dominion of India shall be created out of the UnitedProvinces, Central Provinces, Bombay Presidency, Madras Presidency,the Carnatic, East Punjab, West Bengal, Assam and the NortheastFrontier Agency. The territories of the Andaman and Nicobar Islandsand the Lakshadweep Islands are also turned over to the IndianDominion.* An independent dominion of Pakistan shall be created out of theprovinces of West Punjab, North West Frontier Province, Sindh and EastBengal.* The all Princely states that were officially related to British Empirewere made free from all the treaties and relationships and they coulddecide which dominion to join. Lord Mountbatten thought that if theprincely state remained independent within the dominion that maylead to chaos and thus made their accession a necessity of the IndianIndependence Act.* Both the Indian and Pakistan Dominions would be members of theBritish Commonwealth and was allowed to leave whenever theypleased.* Both Dominions of India and Pakistan were completely self-governingin their internal affairs, foreign affairs and national security but theBritish monarch will continue to be their head of state, represented bythe Governor-General of India and a new Governor-General of Pakistan.
Both Dominions shall convene their Constituent Assemblies and writetheir respective constitutions.* The British monarch shall be permitted to remove the title ofEmperor of India from the Royal Style and Titles. King George VIsubsequently removed the title by Order in council on June 22, 1948.Lord Mountbatten was the last Viceroy of India under British rules andbecame the Governor General of Independent India. Jawaharlal Nehrubecame the Prime Minister of India, Dr. Rajendra Prasad was thePresident and Sardar Vallabhbhai Patel was the Deputy Prime ministerof India. Five hundred and sixty princely states were annexed withIndia, among which Junagadh and Hyderabad was took over aftermilitary action.The main provision of the Indian independence act 1947 is asfollows–Creation of two domination- India and Pakistan –The Act provides for the partition of India and establishment of twoindependent Dominions – India and Pakistan from august 15, 1947. Theword independent signified the absence of any external restraint.Clause (2) of the Act defined the territories of the two new Dominionsand made it possible to bring about necessary adjustment in the
existing boundaries. Clause (3) and (4) provides for the partition of theBengal, Punjab, and Assam keeping in view the aspirations of thepeople of these territories and fixing of the boundaries of these dividedprovinces by boundary commission.Legislative supremacy of the dominions of India and Pakistan–The Act provided for the legislative supremacy of the dominions. Thegovernor general of either dominion was empowered to promulgateordinances to meet emergencies as provided under the Govt. of IndiaAct 1935. But the authority of provincial govt. under Section 93 of theGovt. of India Act 1935 was done away with. The provision requiringthe governor general or any governor to act in his discretion or exercisehis individual judgment would cease to have effect from August 15,1947.The governor general however was invested with planetary powersuntil March 1948, to issue orders for the effective implementation ofthe Indian independence Act 1947 and the division of the assetsbetween the two dominions, to adopt or modify the govt. of India Act1935 and to remove any difficulties that might be arising during thetransitional period.The Act provided that until new constitution was framed for each of thedominions, the constituent Assemblies were to act as dominionslegislatures and were to exercise all powers which were formerlyexercised by the central legislature.
Freedom of British rule – The most epoch-making effect of the Act was that India no longerremained a dependency of British Empire. Like other dominions, it nowgets the status of an independent nation. Thus, the British period inIndia came to an end after nearly three and half centuries of trading,two centuries of political power and 130 years of general supremacy.After the coming into force of the Act, the British govt. had no controlover the affairs of the dominions of India and Pakistan of any partthereof.Continuance of the govt. of India Act 1935 until the framing ofa new constitution by the dominions of India and Pakistan-The Indian independence Act 1947 specifically lay down that the newdominions shall continue to be governed by the provisions of the govt.Act 1935 insofar as they are consistent with dominion status. Itempowers the governor general to each of the two dominions to makenecessary omissions, ‘additions or modifications in the govt. of IndiaAct 1935 and orders in council, rules and other instruments made thereunder till march 31 1948. After that day, it was open to the constituentassemblies to modify or adopt the same Act.
Termination of the crowns paramountcy-With the transfer of the power to the dominions of India and Pakistanin accordance with the Indian independence Act 1947 the paramountcyand suzerainty of the British crown over the India and the India statescame to an end. Consequently, all treaties and agreements between hismajesty and the rulers of the Indian states and their rulers, and allpowers, grants, rights, authority or jurisdiction of his majesty overIndian lapsed on August 15, 1947. The Act, however, enable the state toaccede to any of the two dominions by agreement for their defensesand some other matters of common interest such as external affairsand communications.The instrument of Accession relating to dominion of India laid downthat acceding states have agreed to give to the legislature andauthorities of the dominion of India, jurisdiction over matters, namely,defense, external affairs and communications.Agreement with N.W.F.P. Tribes –The act provides that agreements with the tribes of the North- WestFrontier province of the India were to be negotiated by the successordominions.
Lapse of the Instrument of instruction-Section 18 of Indian independence Act provided that the existinginstrument of instruction to the governors and governor general shalllapse with the coming into effect of this Act. The reason being that thegovernor general and governors were now required to act as theconstitutional heads in future and, therefore, instruments ofinstructions were no longer necessary for them.EFFECTS OF THE INDIAN INDEPENDENCE ACT, 1947The Indian independence act, 1947 marked the end of ninety yearsBritish rule in India beginning from 1858. The British crown severed itsparamountcy at one stroke. The Indian states regained their statuswhich they prior to the British sovereignty. The source of theconstitution of newly created dominions of India and Pakistan was thegovernment of India Act, 1935, but subject to modifications made bythe orders passed by the governor general under section 9(1) of Indianindependence Act 1947.Section 6(2) of the Indian independence Act 1947 vested in legislatureof either dominion, the power to repel or amend any Act of Britishparliament existing or future one. Even the Indian independence Act1947 itself could be repealed or amended under this clause of the Act.By this Act, the British parliament renounced its sovereignty once for alland no further imperial legislation was necessary for validating thefuture constitution of India or Pakistan, as the case may be.
There was no longer any executive council as under the govt. of IndiaAct, 1919 or counselors as under the govt. of India Act, 1935. Thegovernor general or the provincial governor was not to act on theadvice of the council of ministers enjoying confidence of dominionlegislature i.e. the constituent assembly or the provincial legislature, asthe case may be. The governor general was empowered topromulgated ordinances to meet emergencies as provided under thegovt. of India Act, 1953. Such ordinance could remain in force for sixmonths only until they were superseded by an Act of the enforcementof the Indian independence Act. One extraordinary power which thegovernor general of the Pakistan assumed was that he could interferein the provincial affairs and in respect of the most vital matters ofappointment and removal of the ministers themselves. But, in relationto the India dominion, the governor general did not have any suchdirect authority in the matter.As a result of the partition of Bengal and Assam, the size of the newprovince was diminished considerably. Hence, they were to haveunicameral legislature, the legislature council of these provinces havingbeen abolished from August 15, 1947.The European territorial constituencies were abolished in thelegislatures of all provinces.The provinces requiring the proceedings of central and provinciallegislature to be conducted in English were deleted.The members of All India Service lost the protection of secretary ofstate and they were now fully under the control of dominion orprovincial govt. as the case may be. Thus, they were now not the agentsof the British govt. but employees of the dominion which they served.
Constitutional position of Indian states after the Indianindependence Act 1947—As a result of the Indian independence, British treaties came to an endand with it, the British paramountcy also terminated. Though in theoryeach Indian state became independent but they were strongly adviceby the departing British crown that they should associate themselveswith one or the other dominions. Some of the rulers, however, declinedto join either of the two dominions. The Indian congress was of theopinion that the lapse of British paramountcy would not make theIndian states sovereign and independent while Mr. Jinnah held acontrary view.Lord Mountbatten made an earnest effort to solve the constitutionalproblems arising on account of the hostile attitude of some of the stateto join either of the two dominions. He tried to convince the rulingprinces that it was in their own interest to accede to a dominion at leastfor the purpose of the defense, external affairs and communications.He felt that it would not be expedient for every state to have their ownarrangements in respect of these matters. Moreover, the accession ofstates to the dominion of these specified purposes was not going toburden them with any additional financial liability nor was it going toaffect their sovereign status in any way. Responding favorably toMountbatten’s appeal, the princes of all states those of Janugarh,Hyderabad and Kashmir announced their accession to India.
India’s status in commonwealth nations:-After the Indian independence Act 1947, the status of dominion wasvirtually one of independence. The link that existed between them andthe British crown was for their own benefit and not a burden in anyway.The judicial committee of Privy Council in their decision in a Canadiancase had observed: “since the statue of West minister, 1931, there is nolimit to the sovereignty of dominion legislature and so it seems that thequestion whether the dominion can legally secede from BritishCommonwealth must be answered in affirmative.” So far as the statusof the dominion of India and Pakistan were concerned there was noroom for any such doubts for the independence Act had given them ablank cheque.At the time of joining the membership of the Commonwealth ofNations, the govt. of India declared and affirmed their acceptance ofthe king as a symbol of the free association of independent membernations and such the heads of the commonwealth.
Birth of Indian ConstitutionThe Constitution of India was drafted by the Constituent Assembly. TheConstituent Assembly held its first sitting on the 9th December, 1946. Itreassembled on the 14th August, 1947, as the sovereign ConstituentAssembly for the Dominion of India. The proposed Constitution hadbeen outlined by various committees of the Assembly like:a) Union Constitution Committeeb) The Union Powers Committeec) Committee on Fundamental Rights.It was after a general discussion on the reports of these Committeesthat the Assembly appointed a Drafting Committee on the 29th August,1947. The Drafting Committee, under the Chairmanship of Dr.Ambedkar, embodied the decision of the Assembly with alternative andadditional proposals in the form of a Draft Constitution of India whichwas published in February, 1948. The Constituent Assembly next met inNovember, 1948, to consider the provisions of the Draft, clause byclause. After several sessions the consideration of the clauses or secondreading was completed by the 17th October, 1949. The ConstituentAssembly again sat on the 14th November, 1949, for the third readingand finished it on the 26th November, 1949, on which date theConstitution received the signature of the President of the Assemblyand was declared as passed. The provisions relating to citizenship,elections, provisional Parliament, temporary and transitional
provisions, were given immediate effect, i.e., from November 26, 1949.The rest of the Constitution came into force on the 26th January, 1950,and this date is referred to in the Constitution as the Date of itsCommencement.Constituent AssemblyThe first historical session of Indian Constituent Assembly held itsmeeting on 9th December, 1946 under the chairmanship of Dr.Sachidananda Sinha. On 11th December, it elected Dr. Rajendra Prasadas its permanent president. The Membership of the ConstituentAssembly included all eminent Indian leaders. Though the ConstituentAssembly consisted of 296 members, the first historical session wasattended by only 210 members. Amongst the 210 members whoattended the first historical session of the Constituent Assembly, therewere 155 high caste Hindus, 30 Schedule Caste representatives, 5Tribals, 5 Sikhs, 5 Indian Christians, 3 Anglo Indians, 3 Parsis and 4Muslim members.Though the Constituent Assembly had 80 Muslim members out of total296 members, their attendance was very poor as because the Muslimleague had called upon the Muslim members to boycott the firsthistorical session of Constituent Assembly. The election results,particularly the big majority secured by the Congress, unnerved theMuslim league. It passed two resolutions. By the first, it withdrewsupport from the cabinet Mission Plan and by the second it resolvedthe resort to direct action for achieving Pakistan. It decided to boycottthe Constituent Assembly. It celebrated 16th August, 1946 as the DirectAction Day.
At the time of its establishment, the Constituent Assembly was not asovereign body. It stood organized on the basis of the Cabinet MissionPlan. Its powers were derived from the sovereign authority of BritishParliament. Some Indian leaders held the view that the ConstituentAssembly was not a sovereign body. However Sardar Patel and PanditNehru believed that it was a sovereign body. The Assembly resolvedthis issue by adopting: "The Assembly should not be dissolved except bya resolution assented to by at least 2/3rd of the whole number ofmembers of the Assembly. Once constituted it could not be dissolvedeven by Britain." When on 15th August, 1947, India becameIndependent; the Constituent Assembly became a fully sovereign bodyand remained so till the inauguration of the Constitution of India.During this period, it acted in a dual capacity: first as the ConstituentAssembly engaged in the making of the Indian Constitution, andsecondly as the Parliament of India, it remained involved in legislatingfor the whole of India. Pt. Jawaharlal Nehru introduced the objectivesResolution on 13th December, 1946. After a full discussion and debate,the Constituent Assembly passed the objectives Resolution on 22ndJanuary, 1947. It clearly laid down the ideological foundations andvalues of the Indian Constitution and it guided the work of theConstituent Assembly.The objectives Resolution passed and adopted by the ConstituentAssembly read as under: 1. "The Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for the future governance a Constitution." 2. Wherein that territories that now comprise British India, the territories that now form the Indian states as well as such other
territories as are willing to be constituted in to the Independent Sovereign India, shall be a union of them all; and3. Wherein the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution shall possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of the government and administration, save and except such powers and functions as are vested in or assigned to the Union, or as are inherent or implied in the Union, on resulting there from; and4. Wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, be derived from the people; and5. Wherein shall be guaranteed and secured to all the people of India, justice, economic and political; equality of status, and of opportunity before the law, freedom of thought, expression belief, faith, worship, vocation, association and action subject to law and public morality; and6. Wherein adequate safeguards, shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and7. Where by shall be maintained the integrity of the territory, the republic and its sovereign rights sea and air according to justice and the law of civilised nations; and
8. The ancient land attains its rightful and honored place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind."The objectives Resolution was adopted by the Constituent Assembly on22 January, 1947. It provided the ideological framework which was toguide the process of framing of Constitution of India. The Preamble ofthe Constitution embodies all the ideals which were listed in theobjectives Resolution. The objective Resolution was designed to declarethe resolve to make India a sovereign, Independent, Republic and tosecure all its citizens, fundamental rights, justice, secularism andwelfare state as well as to preserve the unity and integrity of thenation.It declared the resolve to make India a democratic Union with an equallevel of self government in all constituent parts. It affirmed that allpower and authority of the Government is derived from the people. Itaffirmed the resolve to frame a Constitution which should secure forIndia a due place in the country of Nations. On 15th August, 1947, Indiabecame independent. A day before, on 14th August, Pakistan waspartitioned out of India. The Constituent Assembly of India then got asovereign status and started undertaking the task of formulating theConstitution of India with a new zeal and enthusiasm. For conductingits work in a systematic and efficient manner, the Constituent Assemblyconstituted several committees which were to report on the subjectsassigned to them. Some of these committees were committees onprocedural matters while others were committees on substantivematters.The reports of these committees provided the bricks and mortar for theformulation of the Constitution of India. In the making of theConstitution, a very valuable role was played by the Drafting
Committee. The Committee was constituted on 29th August, 1947 withDr. B.R. Ambedkar as its chairman. The members of this committeeincluded its versatile chairman Dr. Ambedkar, as such legal luminariesas B.L.Mitter, N.Gopalswami Ayyanagar, Alladi Krishnaswami Ayyar,K.M. Munshi, Saiyid Mohd Saadulla, N. Madhab Rao and D.P. Khaitan.After the death of Mr. D.P. Khaitan, T.T. Krishnamachari was made itsmember. Dr. B.N. Rau worked as the Chief Constitutional Advisorattached to this Committee.The Drafting Committee submitted its report (draft) to the ConstituentAssembly on 21st February, 1948 and the Constituent Assembly helddebates on it. On the basis of these discussions, a new draft wasprepared by the Drafting Committee and submitted to the Assembly on4th November, 1948. From 14th November, 1949 to 26th November,1949 the final debate was held on the draft. On 26th November, 1949,the Constitution was finally adopted and enacted when theConstitution was signed by the president of the Constituent Assembly.In the words of Granville Austin "the adoption of the Constitution ofIndia was the greatest political venture since the Philadelphiaconvention."Some of the provisions came into operation immediately while as awhole the Constitution was inaugurated on 26th January, 1950.It is significant to mention that this day was observed as theIndependence Day every year as long as the British Rule in India. Later,in order to perpetuate the memory of the great pledge of the "PurnaSwaraj Day" 26th January 1950 was chosen to be the day of thecommencement of our Constitution and was declared as Republic withDr. Rajendra Prasad as its first President. This is in brief, an account ofthe making of Indian Constitution by the Constituent Assembly. It tookthe Constituent Assembly 2 years, 11 months and 18 days toaccomplish the task of making the Constitution. In all it held 11 plenarysessions and discussions were held for 114 days. Rs.6, 396,273 were
spent in this exercise. Constitution of India is indeed the highest andmost valuable contribution of the Constituent Assembly to the IndianPolitical System. Dr. Rajendra Prasad observed, "I desire to congratulatethe Assembly on accomplishing a task of such tremendous magnitude.It is not my purpose to appraise the value of the work that theAssembly has done or the merits and demerits of the Constitutionwhich it has framed, I am content to leave that to others and posterity."