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August 15th, 1947: Legal Background

Postage issued on 15/12/1947

15th of August, 1947 (hereinafter- ‘the appointed day’)¹, marks the culmination of almost a century long freedom struggle for the Indians. And their emotions, this author imagines, must have been similar to what Plato explains for a man liberated in his Allegory of the Cave². The legal background behind the Indian independence date, though, is little-known and less talked about. So, without any dilation on matters connected, this author leaps directly at the Indian Independence Act, 1947 (hereinafter- ‘the Act’). The Act conceded the popular demand that was denied to the Indians by the Government of India Act, 1935 (hereinafter- ‘the Act of 1935’)— the status of an Independent Dominion. Article 1 of the Act divided the erstwhile Indian territory, as defined by the Act of 1935, into two separate independent dominions– known as India and Pakistan respectively– as from the appointed date. Put in simple manner, India ceased to be a dependency of the British Crown and became independent- though divided into two. But what exactly did it mean to have an ‘Independent Dominion’ status?
It meant that despite being independent, India was still a part of the British commonwealth. The Commonwealth is basically an association of the United Kingdom, its colonies and former colonies that are now sovereign with a common allegiance to the crown³. A necessary corollary of this status was that the Indian dominion was governed, pending the extraction of the Indian Constitution, under the Governor-General who was an appointee and representative of the British crown⁴. This must not be misunderstood, though, to mean that India was in any manner subordinate to the crown, since the British responsibility for governance of India and office of the Secretary of State for India were expressly abolished by Articles 7 and 10 of the Act. Further, the Governor-General was not acting at his or the crown’s discretion but rather on strict advice of a Council of Ministers backed by the ‘Dominion Legislature’. All his powers were taken away by the Act. He was a mere caretaker head that was meant to cease acting once the Indians elect their own government. And it was the Constituent Assembly of India itself which functioned as its Dominion Legislature with an unlimited power to not only draft an Indian Constitution and to pass laws for India but also to repeal all the existing British laws, including the Act itself.⁵

Finally with the commencement of the Indian Constitution on 26th of January, 1950, India severed all of its remaining ties with Britain thereby transforming itself into Indian Republic. Meaning that India, henceforth, would be governed by the popularly elected representatives in accordance with the Indian Constitution.

And this metamorphosis happened by the virtue of Article 395 of the Indian Constitution that repeals the Act along with the Act of 1935. It runs as:

The Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed.

This provision, also, patently manifests that the contentions that the Act is the source of authority of the Indian Constitution is rather uncharitable. The intention of the founding fathers behind drafting the aforesaid provision was to declare that Indian independence was not the result of any legislation. It was not bequeathed upon the Indians but rather won by them. The British regime had realised that they could no longer suppress the Indian spirit through force and thus dilating the independence would be nothing but futile and counterproductive for the Britishers themselves. As a matter of fact, the Act was passed to stimulate the process of withdrawal of Britain from India.

The British, however, left behind a divided, bloodstained India. The Act bifurcated India, as defined by the Act of 1935, into the separate dominions of India and Pakistan by distribution of territories inbetween.⁶
Section 311 of the Act of 1935 defined Indian territory to comprise of:
British India + Princely states under suzereinty of the Queen and such similar states as may the Queen include.
British India in turn comprised of: Governor’s Provinces (like Oudh, United Provinces) + Chief Commissioners Provinces (like Delhi, British Baluchistan).

Undivided India= British India + Princely States.

On the relentless demand of the Muslim League for a Muslim-majority State, this territorial structure was amended by the Act which partitioned the provinces of Bengal, Punjab, Sindh, North-West Frontier Provinces (NWFP) and redistributed them amongst India and Pakistan.

Article 3 of the Act divided Bengal into East & West Bengal, whereas Article 4 partitioned Punjab into East & West Punjab. As per Article 2 of the Act, the provinces of Sindh & British Baluchistan (in their entirety), NWFP (after referendum), West Punjab and East Bengal, along with the District of Sylhet partitioned from Assam, became parts of the territory of Pakistan. On the other hand, the remaining territories of British India, along with East Punjab & West Bengal, became parts of the Indian territory. The Act did not provide, it must be noted, for the accession of the Princely states as it was left for the two dominions and the Princely states to decide amongst themselves.

To conclude succinctly, apart from transferring the power of governance to the Indians, the Act also partitioned the erstwhile India into two separate landmasses.
Poets often sang that the borders could separate the soil but for the sky. Little did they know that the Laws could be cruel at times. Little did they know that the owner of the soil, the law says, owns it to the centre of the earth, and even to the firmament.

  1. vide Article 1(2) the Act.
  2. Refer ‘The Republic’ by Plato.
  3. American Heritage Dictionary.
  4. vide Article 5 of the Act.
  5. vide Article 8 r/w Article 6 of the Act.
  6. vide Article 1(1) r/w Article 2 of the Act.

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