Content

1. 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

Acknowledgement

We are very grateful to the Principal Dr. J.P. Bora of Department of Law, University Law Collage Guwahati University for giving us such a valuable topic dissertation. This will help us in the detail study of d topic. We are highly indebted to our revered lecturer Mrs. Malavila Talukdar for her invaluable guidance in carrying out the work. Without her inspiration, suggestion and encouragement in every step of the work, it would not have been completed. We express our sincere gratitude to the authors whose precious writings have either been used or applied in the work.

Submitted by,

Khanindra Soud. Roll no. 237/10

Sanket Gogoi. Roll no. 241/10

Sahid Arzan. Roll no. 236/10

Monalisa Das. Roll no. 240/10

Hirok Jyoti Das. Roll no. 238/10

Arun Sarkar. Roll no. 239/10

Indian Independence Act, 1947 and birth of Indian constitution

Introduction-

He Indian Independence Act 1947 was the legislation passed and enacted by the British Parliament that officially declared the Independence of India. The Parliament of the United Kingdom passed the Act which partitioned British India into 2 separate and independent countries, India and Pakistan. The legislation of Indian Independence Act was designed by the Prime Minister Clement Attlee as Indian Political Parties agreed on the transfer of power from the British Government to the independent Indian Government and the Partition of India. This act received royal assent on 18th July, 1947.The Agreement was made with Lord Mountbatten, which was known as the 3 June Plan or Mountbatten Plan. The 2 newly formed countries of India and Pakistan came into existence from 15th August, in the year 1947.

History of Indian Independence Act 1947

On 3rd June 1947, a plan was announced that was proposed by the British government which included the following principles:

* Principle of Partition of India was approved by the British Government

* Successor governments would receive dominion status * Implicit right to secede from the British Commonwealth Clement Attlee, the Prime Minister of the United Kingdom, announced on 20th February, 1947 that the British Government would grant full self government to British India latest by June 1948. Moreover, the future of Princely States would be decided after the date of final transfer is decided and the Indian Independence Act 1947 was the implementation of June 3 Plan.

Indian Independence Act was passed in June 1947, which specified the following:

* 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 United Provinces, Central Provinces, Bombay Presidency, Madras Presidency, the Carnatic, East Punjab, West Bengal, Assam and the Northeast Frontier Agency. The territories of the Andaman and Nicobar Islands

and the Lakshadweep Islands are also turned over to the Indian Dominion.

* An independent dominion of Pakistan shall be created out of the provinces of West Punjab, North West Frontier Province, Sindh and East Bengal.

* The all Princely states that were officially related to British Empire were made free from all the treaties and relationships and they could decide which dominion to join. Lord Mountbatten thought that if the princely state remained independent within the dominion that may lead to chaos and thus made their accession a necessity of the Indian Independence Act.

* Both the Indian and Pakistan Dominions would be members of the British Commonwealth and was allowed to leave whenever they pleased.

* Both Dominions of India and Pakistan were completely self-governing in their internal affairs, foreign affairs and national security but the British monarch will continue to be their head of state, represented by the Governor-General of India and a new Governor-General of Pakistan. Both Dominions shall convene their Constituent Assemblies and write their respective constitutions.

* The British monarch shall be permitted to remove the title of Emperor

of India from the Royal Style and Titles. King George VI subsequently removed the title by Order in council on June 22, 1948.

Lord Mountbatten was the last Viceroy of India under British rules and became the Governor General of Independent India. Jawaharlal Nehru became the Prime Minister of India, Dr. Rajendra Prasad was the President and Sardar Vallabhbhai Patel was the Deputy Prime minister of India. Five hundred and sixty princely states were annexed with India, among which Junagadh and Hyderabad was took over after military action.

The main provision of the Indian independence act 1947 is as follows–

Creation of two domination- India and Pakistan –

The Act provides for the partition of India and establishment of two independent Dominions – India and Pakistan from august 15, 1947. The word independent signified the absence of any external restraint.

Clause (2) of the Act defined the territories of the two new Dominions and made it possible to bring about necessary adjustment in the existing boundaries. Clause (3) and (4) provides for the partition of the Bengal, Punjab, and Assam keeping in view the aspirations of the people of these territories and fixing of the boundaries of these divided provinces by boundary commission.

Legislative supremacy of the dominions of India and Pakistan –

The Act provided for the legislative supremacy of the dominions. The governor general of either dominion was empowered to promulgate ordinances to meet emergencies as provided under the Govt. of India Act 1935. But the authority of provincial govt. under Section 93 of the Govt. of India Act 1935 was done away with. The provision requiring the governor general or any governor to act in his discretion or exercise his individual judgment would cease to have effect from August 15, 1947.

The governor general however was invested with planetary powers until March 1948, to issue orders for the effective implementation of the Indian independence Act 1947 and the division of the assets between the two dominions, to adopt or modify the govt. of India Act 1935 and to remove any difficulties that might be arising during the transitional period.

The Act provided that until new constitution was framed for each of the dominions, the constituent Assemblies were to act as dominions legislatures and were to exercise all powers which were formerly exercised by the central legislature.

Freedom of British rule –

The most epoch-making effect of the Act was that India no longer remained a dependency of British Empire. Like other dominions, it now gets the status of an independent nation. Thus, the British period in India 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 control over the affairs of the dominions of India and Pakistan of any part thereof.

Continuance of the govt. of India Act 1935 until the framing of a new constitution by the dominions of India and Pakistan-

The Indian independence Act 1947 specifically lay down that the new dominions shall continue to be governed by the provisions of the govt. Act 1935 insofar as they are consistent with dominion status. It empowers the governor general to each of the two dominions to make necessary omissions, ‘additions or modifications in the govt. of India Act 1935 and orders in council, rules and other instruments made there under till march 31 1948. After that day, it was open to the constituent assemblies to modify or adopt the same Act.

Termination of the crown's paramountcy-

With the transfer of the power to the dominions of India and Pakistan in accordance with the Indian independence Act 1947 the paramountcy and suzerainty of the British crown over the India and the India states came to an end. Consequently, all treaties and agreements between his majesty and the rulers of the Indian states and their rulers, and all powers, grants, rights, authority or jurisdiction of his majesty over Indian lapsed on August 15, 1947. The Act, however, enable the state to accede to any of the two dominions by agreement for their defenses and some other matters of common interest such as external affairs and communications.

The instrument of Accession relating to dominion of India laid down that acceding states have agreed to give to the legislature and authorities 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- West Frontier province of the India were to be negotiated by the successor dominions.

Lapse of the Instrument of instruction-

Section 18 of Indian independence Act provided that the existing instrument of instruction to the governors and governor general shall lapse with the coming into effect of this Act. The reason being that the governor general and governors were now required to act as the constitutional heads in future and, therefore, instruments of instructions were no longer necessary for them.

EFFECTS OF THE INDIAN INDEPENDENCE ACT, 1947

The Indian independence act, 1947 marked the end of ninety years British rule in India beginning from 1858. The British crown severed its paramountcy at one stroke. The Indian states regained their status which they prior to the British sovereignty. The source of the constitution of newly created dominions of India and Pakistan was the government of India Act, 1935, but subject to modifications made by the orders passed by the governor general under section 9(1) of Indian independence Act 1947.

Section 6(2) of the Indian independence Act 1947 vested in legislature of either dominion, the power to repel or amend any Act of British parliament existing or future one. Even the Indian independence Act 1947 itself could be repealed or amended under this clause of the Act.

By this Act, the British parliament renounced its sovereignty once for all and no further imperial legislation was necessary for validating the future constitution of India or Pakistan, as the case may be.

There was no longer any executive council as under the govt. of India Act, 1919 or counselors as under the govt. of India Act, 1935. The governor general or the provincial governor was not to act on the

advice of the council of ministers enjoying confidence of dominion legislature i.e. the constituent assembly or the provincial legislature, as the case may be. The governor general was empowered to promulgated ordinances to meet emergencies as provided under the govt. of India Act, 1953. Such ordinance could remain in force for six months only until they were superseded by an Act of the enforcement of the Indian independence Act. One extraordinary power which the governor general of the Pakistan assumed was that he could interfere in the provincial affairs and in respect of the most vital matters of appointment and removal of the ministers themselves. But, in relation to the India dominion, the governor general did not have any such direct authority in the matter.

As a result of the partition of Bengal and Assam, the size of the new province was diminished considerably. Hence, they were to have unicameral legislature, the legislature council of these provinces having been abolished from August 15, 1947.

The European territorial constituencies were abolished in the legislatures of all provinces.

The provinces requiring the proceedings of central and provincial legislature to be conducted in English were deleted.

The members of All India Service lost the protection of secretary of state and they were now fully under the control of dominion or provincial govt. as the case may be. Thus, they were now not the agents of the British govt. but employees of the dominion which they served.

Constitutional position of Indian states after the Indian independence Act 1947—

As a result of the Indian independence, British treaties came to an end and with it, the British paramountcy also terminated. Though in theory each Indian state became independent but they were strongly advice by the departing British crown that they should associate themselves with one or the other dominions. Some of the rulers, however, declined to join either of the two dominions. The Indian congress was of the opinion that the lapse of British paramountcy would not make the Indian states sovereign and independent while Mr. Jinnah held a contrary view.

Lord Mountbatten made an earnest effort to solve the constitutional problems arising on account of the hostile attitude of some of the state to join either of the two dominions. He tried to convince the ruling princes that it was in their own interest to accede to a dominion at least for the purpose of the defense, external affairs and communications. He felt that it would not be expedient for every state to have their own arrangements in respect of these matters. Moreover, the accession of states to the dominion of these specified purposes was not going to burden them with any additional financial liability nor was it going to affect their sovereign status in any way. Responding favorably to Mountbatten’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 was virtually one of independence. The link that existed between them and the British crown was for their own benefit and not a burden in any way.

The judicial committee of Privy Council in their decision in a Canadian case had observed: “since the statue of West minister, 1931, there is no limit to the sovereignty of dominion legislature and so it seems that the question whether the dominion can legally secede from British Commonwealth must be answered in affirmative.” So far as the status of the dominion of India and Pakistan were concerned there was no room for any such doubts for the independence Act had given them a blank cheque.

At the time of joining the membership of the Commonwealth of Nations, the govt. of India declared and affirmed their acceptance of the king as a symbol of the free association of independent member nations and such the heads of the commonwealth.

Birth of Indian Constitution

The Constitution of India was drafted by the Constituent Assembly. The Constituent Assembly held its first sitting on the 9th December, 1946. It reassembled on the 14th August, 1947, as the sovereign Constituent Assembly for the Dominion of India. The proposed Constitution had been outlined by various committees of the Assembly like:

a) Union Constitution Committee b) The Union Powers Committee c) Committee on Fundamental Rights.

It was after a general discussion on the reports of these Committees that 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 and additional proposals in the form of a 'Draft Constitution of India which was published in February, 1948. The Constituent Assembly next met in November, 1948, to consider the provisions of the Draft, clause by clause. After several sessions the consideration of the clauses or second reading was completed by the 17th October, 1949. The Constituent Assembly again sat on the 14th November, 1949, for the third reading and finished it on the 26th November, 1949, on which date the Constitution received the signature of the President of the Assembly and 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 its Commencement.

Constituent Assembly

The first historical session of Indian Constituent Assembly held its meeting on 9th December, 1946 under the chairmanship of Dr. Sachidananda Sinha. On 11th December, it elected Dr. Rajendra Prasad as its permanent president. The Membership of the Constituent Assembly included all eminent Indian leaders. Though the Constituent Assembly consisted of 296 members, the first historical session was attended by only 210 members. Amongst the 210 members who attended the first historical session of the Constituent Assembly, there were 155 high caste Hindus, 30 Schedule Caste representatives, 5 Tribals, 5 Sikhs, 5 Indian Christians, 3 Anglo Indians, 3 Parsis and 4 Muslim members.

Though the Constituent Assembly had 80 Muslim members out of total 296 members, their attendance was very poor as because the Muslim league had called upon the Muslim members to boycott the first historical session of Constituent Assembly. The election results, particularly the big majority secured by the Congress, unnerved the Muslim league. It passed two resolutions. By the first, it withdrew support from the cabinet Mission Plan and by the second it resolved the resort to direct action for achieving Pakistan. It decided to boycott the Constituent Assembly. It celebrated 16th August, 1946 as the Direct Action Day.

At the time of its establishment, the Constituent Assembly was not a sovereign body. It stood organized on the basis of the Cabinet Mission Plan. Its powers were derived from the sovereign authority of British Parliament. Some Indian leaders held the view that the Constituent Assembly was not a sovereign body. However Sardar Patel and Pandit Nehru believed that it was a sovereign body. The Assembly resolved this issue by adopting: "The Assembly should not be dissolved except by a resolution assented to by at least 2/3rd of the whole number of members of the Assembly. Once constituted it could not be dissolved even by Britain." When on 15th August, 1947, India became Independent; the Constituent Assembly became a fully sovereign body and remained so till the inauguration of the Constitution of India. During this period, it acted in a dual capacity: first as the Constituent Assembly engaged in the making of the Indian Constitution, and secondly as the Parliament of India, it remained involved in legislating for the whole of India. Pt. Jawaharlal Nehru introduced the objectives Resolution on 13th December, 1946. After a full discussion and debate, the Constituent Assembly passed the objectives Resolution on 22nd January, 1947. It clearly laid down the ideological foundations and values of the Indian Constitution and it guided the work of the Constituent Assembly.

The objectives Resolution passed and adopted by the Constituent Assembly 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; and

3. 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; and

4. Wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, be derived from the people; and

5. 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; and

6. Wherein adequate safeguards, shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and

7. 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 on 22 January, 1947. It provided the ideological framework which was to guide the process of framing of Constitution of India. The Preamble of the Constitution embodies all the ideals which were listed in the objectives Resolution. The objective Resolution was designed to declare the resolve to make India a sovereign, Independent, Republic and to secure all its citizens, fundamental rights, justice, secularism and welfare state as well as to preserve the unity and integrity of the nation.

It declared the resolve to make India a democratic Union with an equal level of self government in all constituent parts. It affirmed that all power and authority of the Government is derived from the people. It affirmed the resolve to frame a Constitution which should secure for India a due place in the country of Nations. On 15th August, 1947, India became independent. A day before, on 14th August, Pakistan was partitioned out of India. The Constituent Assembly of India then got a sovereign status and started undertaking the task of formulating the Constitution of India with a new zeal and enthusiasm. For conducting its work in a systematic and efficient manner, the Constituent Assembly constituted several committees which were to report on the subjects assigned to them. Some of these committees were committees on procedural matters while others were committees on substantive matters.

The reports of these committees provided the bricks and mortar for the formulation of the Constitution of India. In the making of the Constitution, a very valuable role was played by the Drafting Committee. The Committee was constituted on 29th August, 1947 with

Dr. B.R. Ambedkar as its chairman. The members of this committee included its versatile chairman Dr. Ambedkar, as such legal luminaries as 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 its member. Dr. B.N. Rau worked as the Chief Constitutional Advisor attached to this Committee.

The Drafting Committee submitted its report (draft) to the Constituent Assembly on 21st February, 1948 and the Constituent Assembly held debates on it. On the basis of these discussions, a new draft was prepared by the Drafting Committee and submitted to the Assembly on 4th 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 the Constitution was signed by the president of the Constituent Assembly. In the words of Granville Austin "the adoption of the Constitution of India was the greatest political venture since the Philadelphia convention."Some of the provisions came into operation immediately while as a whole the Constitution was inaugurated on 26th January, 1950.

It is significant to mention that this day was observed as the Independence Day every year as long as the British Rule in India. Later, in order to perpetuate the memory of the great pledge of the "Purna Swaraj Day" 26th January 1950 was chosen to be the day of the commencement of our Constitution and was declared as Republic with Dr. Rajendra Prasad as its first President. This is in brief, an account of the making of Indian Constitution by the Constituent Assembly. It took the Constituent Assembly 2 years, 11 months and 18 days to accomplish the task of making the Constitution. In all it held 11 plenary sessions and discussions were held for 114 days. Rs.6, 396,273 were spent in this exercise. Constitution of India is indeed the highest and

most valuable contribution of the Constituent Assembly to the Indian Political System. Dr. Rajendra Prasad observed, "I desire to congratulate the Assembly on accomplishing a task of such tremendous magnitude. It is not my purpose to appraise the value of the work that the Assembly has done or the merits and demerits of the Constitution which it has framed, I am content to leave that to others and posterity."