Independence Day Special: The Legal Road To Indian Independence

The roots of the Independence Act can arguably be found in the Cripps Mission of 1942. Sir Stafford Cripps was sent by the British War Cabinet to India in March 1942 to seek Indian leaders' co-operation in the British war effort and also to set the terms and conditions for Indian independence after World War II. This followed a declaration by the India Committee of the War Cabinet on February 28, 1942 which principally acknowledged that the future Indian dominion could leave the Commonwealth if it so desired, and set up a future Constitution making body after the war. This declaration was carried to India by Cripps for negotiations with the Congress, Muslim League and other stakeholders. However, the Cripps Mission failed inter alia due to disagreements on formation of a national government by Indians, as well as on issues regarding defence of India. Soon thereafter the Congress launched the 'Quit India' movement.

After the war ended, the Government in Britain changed hands in 1945 and the new Government under the Sir Clement Atlee started making endeavours for election of provincial and central assemblies in India (for the first time since 1937) to enable the formation of the Constituent Assembly. Pursuant thereto, the Government deployed a Cabinet Mission in March 1946 comprising of three cabinet ministers (including Cripps) to negotiate the transfer of powers. In the face of the tensions between the Congress and the Muslim League over the negotiations for the creation of one Indian Union and the League's demand of a separate Muslim State, the Cabinet Mission declared their plan, while rejecting a demand for Pakistan, on May 16, 1946, with the most relevant clause 15 being:

"15. We recommend that the Constitution should take the following basic form:

(1) There should be a Union of India, embracing both British India and the States which should deal with the following subjects: Foreign Affairs, Defence, and Communications; and should have the powers necessary to raise the finances required for the above subjects.

(2) The Union should have an Executive and a Legislature constituted from British Indian and States' representatives. Any question raising a major communal issue in the Legislature should require for its decision a majority of the representatives present and voting of each of the two major communities as well as a majority of all members present and voting.

(3) All subjects other than the Union subjects and all residuary powers should vest in the Provinces.

(4) The States will retain all subjects and powers other than those ceded to the Union.

(5) Provinces should be free to form groups with Executives and Legislatures, and each group could determine the Provincial subjects to be taken in common.

(6) The Constitutions of the Union and of the groups should contain a provision whereby any Province could by majority vote of its Legislative Assembly could call for a reconsideration of the terms of the Constitution after an initial period of ten years and at ten-yearly intervals thereafter."

The Congress accepted the Plan only to the extent of formation of the Constituent Assembly and formed the interim Government, but the Muslim League rejected it. This resulted in an outbreak of communal violence in Bengal with thousands losing their lives followed by long and protracted tensions. Eventually the British Government decided to partition British India into two separate dominions of India and Pakistan and the date for transfer of power was advanced from June 1948 to August 1947.

In this background, the British Parliament enacted the Indian Independence Act on July 18, 1947 to "Make provision for setting up in India of two independent Dominions, to substitute other provisions of the Government of India Act, 1935, which apply outside those Dominions, and to provide for other matters consequential on or connected with the setting up of those Dominions".

During the second reading of the Indian Independence Bill in the British Parliament, Prime Minister Atlee stated, "This Bill brings to an end one chapter in the long connection between Britain and India, but it opens another. British rule which has endured so long is now, at the instance of this country, coming to an end".

As mentioned, the Independence Act comprised of twenty sections only. The first section itself declared that as from August 15, 1947 two separate Dominions of India and Pakistan shall be established. Section 2 carved out the provinces of East Bengal, West Punjab, Sindh, North-West Frontier Province (subject to referendum) and British Baluchistan out of British India as territories of Pakistan. However, section 2 did not prevent accession of Indian princely states into either of the two Dominions. The province of Bengal was partitioned into West Bengal and East Bengal by virtue of section 3, and also included Sylhet in Assam as part of East Bengal subject to referendum. Section 4 partitioned the Punjab into West Punjab and East Punjab.

The Act mandated the appointment of Governor Generals for both Dominions to represent the British Crown for governance of both Dominions, while granting the legislatures of both Dominions full power to make laws for their respective Dominions, with powers to repeal, amend or modify existing laws enacted by the British. It clarified that no law enacted by the British Parliament on or after August 15, 1947 would be applicable to either Dominion unless specifically extended thereto by the respective legislatures. To this Attlee said, "The aim of the Clause is to put the new Dominions in the same position as that in existing Dominions; that is to say, that they should not be fettered by any of those limitations which are appropriate to Colonial legislatures".

As the British Crown relinquished all responsibility for government of any territory within the two Dominions from August 15, 1947 – all its treaties with princely States and tribal authorities lapsed from that date.

The Constituent Assemblies of India and Pakistan were recognized as temporary legislatures – thus burdening them with dual roles that of draftsmen of the Constitution, as well as that of law-making assemblies. However, the Act provided that the Dominions would separately continue to be governed in accordance with the Government of India Act, 1935 – albeit with modifications in line with vesting the dominions with autonomy while breaking its link with the British Crown.

The Governor Generals of the respective Dominions were empowered to give effect to the provisions of the Independence Act and to enable the transition of power until August 15, 1947. At the same time, offices and terms of service of the Civil Servants and Judges appointed by the British Government, if they chose to continue serving the respective Dominions, were protected by the Act. The Governor General was also empowered to divide the armed forces between the two Dominions and command such forces until the division was concluded.

The British Parliament was clear that the Independence Act was an enabling statute and not a constitutional one, and left it to the Constituent Assembly of India (and Pakistan) to take necessary measures for drawing up their respective constitutions.

The Secretary of State for India said, "The statesmanship revealed by the Indian leaders in arriving at an agreed settlement about the future of India, and the wise tolerance of their attitude to religious and social minorities, are a good omen for the successful discharge of the immense political responsibilities and the complex administrative tasks that will soon be entirely theirs."

However, after passage of the Act, Pakistan chose August 14, 1947 as its independence-day, while India gained freedom on August 15- sticking to the day appointed in the Independence Act.

Bibliography

1. The Transfer of Power 1942-7 (Volumes VI, VII and VIII), edited by Nicholas Mansergh and Penderel Moon (1977)
2. The Cripps Mission – A handiwork of British Imperialism, Bhim Sen Singh (1979)
3. Divide and Quit, Penderel Moon (1998)