The Indian Independence Act 1947

2(3) allows areas to be included or excluded later, but only with the consent of the Dominion concerned. 2(4) provides expressly that nothing in the section prevents the accession of Indian States to either Dominion, which is the provision under which the Instruments of Accession of 1947 were executed.

Section 3: the Province of Bengal ceases to exist and East Bengal and West Bengal are constituted in its place; and if the Governor-General declares that the referendum in the District of Sylhet favours it, part of Assam becomes part of East Bengal.

Section 4: the Province of the Punjab ceases to exist and West Punjab and East Punjab are constituted.

In both sections the boundaries are to be determined by the award of a boundary commission appointed by the Governor-General, and until then the districts listed in the First and Second Schedules are treated as the new Provinces. "Award" is defined as the decisions of the chairman of the commission contained in his report to the Governor-General. That definition is the legal foundation of the boundary line drawn in 1947: the chairman's decisions, not the commission's.

Section 5: a Governor-General for each

For each new Dominion there shall be a Governor-General appointed by His Majesty, who represents His Majesty for the purposes of the government of the Dominion; and, unless the Legislature of either Dominion provides otherwise, the same person may be Governor-General of both.

Two things follow. The Crown remained the formal head of each Dominion, which is why India between 1947 and 1950 was independent but not a republic. And the Governor-General was now the Dominion's officer, not the Secretary of State's: section 8(2)(b) forbids the continuance of any form of control by His Majesty's Government over the affairs of the Dominions.

Section 6: the end of legislative subordination

This is the section that matters most to a lawyer, and it repays being learned subsection by subsection.

• 6(1): the Legislature of each Dominion shall have full power to make laws for that Dominion, including laws having extra-territorial operation.
• 6(2): no law of either Dominion shall be void or inoperative on the ground that it is repugnant to the law of England, or to this or any existing or future Act of the United Kingdom Parliament, or to any instrument made under such an Act; and the Legislature's powers include the power to repeal or amend any such Act so far as it is part of the law of the Dominion.
• 6(3): the Governor-General has full power to assent in His Majesty's name, and the provisions about disallowance, reservation and suspension of laws do not apply.
• 6(4): no Act of the United Kingdom Parliament passed on or after the appointed day extends to a Dominion unless it is extended by a law of that Dominion's own Legislature.
• 6(5): the same for Orders in Council and ministerial instruments.
• 6(6): the power in 6(1) extends to making laws limiting for the future the powers of the Legislature of the Dominion.

Put those together and you have the whole doctrine of Dominion status as it stood in 1947. Compare what went before: section 108 of the Act of 1935 required the Governor-General's previous sanction for a Bill repugnant to an Act of Parliament, and section 32 allowed His Majesty to disallow an Indian Act within twelve months. Section 6 removes both, and removes the doctrine of repugnancy itself.

Subsection (6) is the one students miss, and it is the one that made the Constitution possible. A legislature that can only make ordinary laws cannot bind its successors. By providing that the power in 6(1) extends to laws limiting the Legislature's own future powers, section 6(6) gave the Constituent Assembly, which exercised that power under section 8(1), the capacity to enact a Constitution that the ordinary legislature could not simply repeal.

Section 7: the end of the Raj and of paramountcy

7(1)(a): as from the appointed day, His Majesty's Government in the United Kingdom have no responsibility as respects the government of any of the territories which were included in British India.

7(1)(b): the suzerainty of His Majesty over the Indian States lapses, and with it all treaties and agreements in force between His Majesty and the Rulers, all functions exercisable by His Majesty with respect to the States, all obligations towards them, and all powers, rights, authority or jurisdiction exercisable by treaty, grant, usage, sufferance or otherwise.

7(1)(c) does the same for the tribal areas. The proviso keeps in being, as nearly as may be, agreements about customs, transit and communications, posts and telegraphs and other like matters until denounced or superseded.

7(2): Parliament assents to the omission from the Royal Style and Titles of the words "Indiae Imperator" and "Emperor of India".

The lapse of paramountcy is the most consequential sentence in the Act, and it is worth being exact about what it did and did not do. It did not make the princely States independent sovereign countries recognised as such: it ended the relationship between the Crown and the Rulers and left each State to make its own arrangement. Section 2(4) provided the way: accession to either Dominion, by the machinery of section 6 of the Act of 1935. Every State but a few acceded before or shortly after the appointed day.

Sections 8 and 9: the interim constitution

8(1): in each Dominion, the powers of the Legislature, for the purpose of making provision as to the constitution of the Dominion, are exercisable in the first instance by the Constituent Assembly of that Dominion.

8(2): except so far as the Constituent Assembly provides otherwise, each Dominion and all its Provinces shall be governed as nearly as may be in accordance with the Government of India Act 1935, with the omissions, additions, adaptations and modifications specified in the Governor-General's orders. The provisos are the whole of Indian constitutional history between 1947 and 1950:

• (a) the provisions apply separately to each Dominion, and nothing continues any common Central Government or Legislature;
• (b) nothing continues any form of control by His Majesty's Government over the Dominions or their Provinces;
• (c) so much of those provisions as requires the Governor-General or any Governor to act in his discretion or exercise his individual judgment ceases to have effect;
• (d) no Provincial Bill may be reserved for His Majesty's pleasure and no Provincial Act disallowed;
• (e) the powers of the Federal or Indian Legislature under the 1935 Act are exercisable in the first instance by the Constituent Assembly, in addition to its constitution-making power.

Proviso (c) is the sentence that turned the Act of 1935 into a working democratic constitution overnight. Every safeguard taught in the last three chapters, the Governor-General's discretion under sections 31, 42, 43, 44 and 45, the Governor's individual judgment, the special responsibilities, ceased to have effect on 15 August 1947 without a word of them being repealed.

8(3): any provision of the 1935 Act which, as applied, limits the power of the Dominion's Legislature has the like effect as a law of that Legislature limiting its own future powers, which means the Constituent Assembly could alter it.

Section 9 gives the Governor-General power by order to make such provision as appears to him necessary or expedient for bringing the Act into effective operation; for dividing between the Dominions and the new Provinces the powers, rights, property, duties and liabilities of the Governor-General in Council and of the Provinces that were to cease to exist; for adapting and modifying the Act of 1935; for removing difficulties in the transition; for the monetary system and the Reserve Bank; and, expressly, for varying the constitution, powers or jurisdiction of any legislature, court or other authority in the new Dominions and creating new legislatures, courts or other authorities.

That last power, in section 9(1)(i), is the statutory authority under which the courts of the two Dominions were re-founded, and it is the provision a History of Courts paper should notice. 9(3) makes the section retrospective to 3 June 1947, the date of the partition plan; 9(5) stops the Governor-General making orders after 31 March 1948, and a Governor after the appointed day.

Sections 10 to 20: the loose ends

Section 10 ends appointments to the Indian civil services by the Secretary of State and the reservation of posts, but protects existing officers and judges: a person appointed by the Secretary of State to a civil service, or appointed by His Majesty before the appointed day to be a judge of the Federal Court or of a High Court, who continues to serve, is entitled to the same conditions of service as to remuneration, leave and pension, and the same rights as to disciplinary matters or tenure, as he had immediately before the appointed day. The security of tenure of the judges of 1947 survived the transfer of power by this subsection.

Sections 11 to 13 divide the Indian armed forces between the Dominions and deal with British forces remaining in India and with naval discipline.

Section 14 lets a Secretary of State continue for the time being to make payments and manage government debt on behalf of the Dominions, and abolishes the advisers to the Secretary of State under section 278 of the 1935 Act. Section 15 abates legal proceedings by or against the Secretary of State in respect of Indian rights and liabilities, substituting the High Commissioner in the United Kingdom or a person designated in India, and provides that a pending appeal or petition for special leave to His Majesty in Council is treated as a proceeding pending in the United Kingdom.

Section 16 separates Aden. Section 17 deals with divorce jurisdiction under the Indian and Colonial Divorce Jurisdiction Acts.

Section 18 is the general saving, and it is the section that kept Indian law in force on 15 August 1947. 18(3): the law of British India and of the several parts of it existing immediately before the appointed day shall, so far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions until other provision is made by the Legislature or other competent authority. 18(4) declares that the Instruments of Instructions issued by His Majesty to the Governor-General and Governors lapse. 18(5): rules of court no longer need the approval of His Majesty in Council.

Section 19 is the interpretation section, and 19(3) identifies the Constituent Assembly of India as the Assembly whose first sitting was held on 9 December 1946, modified by the exclusion of the members representing Bengal, the Punjab, Sind and British Baluchistan and the inclusion of members for West Bengal and East Punjab. Section 20 is the short title.

What this Act did to the courts

Four things, and they are what a History of Courts examiner is looking for.

The Federal Court and the High Courts continued. Section 18(3) continued the existing law, and section 8(2) continued the Act of 1935 as adapted, so Part IX went on operating; the judges kept their terms by section 10(2)(b).

The appeal to the Privy Council survived the transfer of power. Nothing in this Act abolished it. Section 15(3) assumes appeals and petitions for special leave to His Majesty in Council are pending, and treats them as United Kingdom proceedings. The appeal was ended by an Indian Act in 1949, which is the subject of a chapter in Module II.

The power to remake the courts was given to the Governor-General, by section 9(1)(i), for the transition only, and expired under 9(5).

And the whole judicial system stopped being answerable to London. Section 7(1)(a) ended the responsibility of His Majesty's Government, section 8(2)(b) forbade any form of control by it, and section 6(2) freed Indian legislation from repugnancy to English law. After 15 August 1947 an Indian court applying an Indian statute was applying the law of an independent country.

A worked example

A civil suit is pending in the district court at Sylhet on 14 August 1947.

Which country is it in the next day? That depends on section 3(2). If the Governor-General has declared that the majority of valid votes in the referendum in the District of Sylhet favoured the district forming part of East Bengal, the district becomes part of the new Province of East Bengal, and East Bengal is part of Pakistan under section 2(2)(a).

Which law does the court apply on 16 August? By section 18(3) the law of British India existing immediately before the appointed day continues, so far as applicable and with the necessary adaptations, as the law of each Dominion until its own Legislature provides otherwise.

Under what constitution does the court sit? By section 8(2), the Government of India Act 1935 as adapted by the Governor-General's orders under section 9, with no United Kingdom control, no reservation of Provincial Bills and no discretion or individual judgment in any Governor.

An appeal was pending to His Majesty in Council. Section 15(3) treats a pending appeal, or a pending petition for special leave to appeal to His Majesty in Council, as a legal proceeding pending in the United Kingdom for the purposes of that section. Nothing in this Act abolishes the appeal itself.

The judge was appointed by His Majesty before the appointed day. By section 10(2)(b) he is entitled, if he continues to serve, to the same conditions of service as to remuneration, leave and pension, and the same rights as to tenure, as he had immediately before the appointed day.

And where does the boundary actually run? By section 3(3), wherever the award of the boundary commission puts it, and by section 3(4) the award means the decisions of the chairman in his report to the Governor-General. Until then the districts listed in the First Schedule are treated as East Bengal.

What beginners get wrong

"India became a republic on 15 August 1947." It became an independent Dominion, with the King as head of State represented by a Governor-General under section 5. It became a republic on 26 January 1950.

"The Act gave India a constitution." It gave India a constitution-making power, in sections 6(6) and 8(1), and an interim constitution, the 1935 Act stripped of imperial control by section 8(2). The Constitution was made in India, by the Constituent Assembly, and article 395 repealed this Act.

"Paramountcy was transferred to India." It lapsed, by section 7(1)(b). It was not transferred to anybody. The States joined by acceding under section 2(4), which is a different legal act.

"The Radcliffe line was drawn by the Act." The Act constituted the new Provinces and left the boundaries to a boundary commission's award, defined in sections 3(4) and 4(3) as the decisions of the chairman in his report to the Governor-General. The schedules gave a provisional list of districts until the award.

Limits and criticism

The Act was drafted in weeks and shows it. It creates two countries, partitions two Provinces without stating their boundaries, and leaves the transition to be managed by orders of a Governor-General who could act retrospectively to 3 June 1947 under section 9(3). That is not a criticism of the drafting so much as a description of the political decision it carried out.

The lapse of paramountcy in section 7(1)(b) left more than five hundred States with no legal relationship to anybody, and the Act offered them only section 2(4). The consequences of that gap belong to a different paper, but the gap is in this section.

And the Act's most quoted defect is one the Constituent Assembly itself resented: that India's independence could be traced to a statute of the British Parliament. The Assembly answered it in two ways. It did not submit the Constitution it drafted to Westminster for approval; and by article 395 it repealed the Indian Independence Act 1947 and the Government of India Act 1935 together, so that the Constitution of India rests on its own authority and not on this Act's.

Quick revision

• s.1: two independent Dominions, India and Pakistan, as from 15 August 1947, the appointed day.
• s.2: the territories; Pakistan is East Bengal, West Punjab, Sind, British Baluchistan and, on a referendum, the North West Frontier Province. 2(4): nothing prevents the accession of Indian States to either Dominion.
• ss.3 and 4: Bengal and the Punjab cease to exist and four new Provinces are constituted; boundaries by the award of a boundary commission, defined as the chairman's decisions.
• s.5: a Governor-General for each Dominion, appointed by His Majesty; the same person may serve both.
• s.6: full power to make laws, including extra-territorially; no repugnancy to English law or any UK Act; no UK Act extends to a Dominion after the appointed day unless the Dominion extends it; no disallowance or reservation; and 6(6) the power extends to limiting the Legislature's own future powers.
• s.7: British responsibility ends; suzerainty over the Indian States lapses with all treaties and obligations; the same for the tribal areas; "Emperor of India" dropped from the Royal Style.
• s.8: the Constituent Assembly exercises the constitution-making power and the Legislature's powers; meanwhile government as nearly as may be under the Act of 1935, with no common centre, no United Kingdom control, no discretion or individual judgment, and no reservation or disallowance of Provincial legislation.
• s.9: the Governor-General's orders for the transition, retrospective to 3 June 1947, expiring 31 March 1948, including power to vary or create legislatures and courts.
• s.10: services and judges keep their conditions of service and tenure. ss.11 to 13: the armed forces. s.15: the Secretary of State replaced by the High Commissioner in legal proceedings.
• s.18(3): the existing law continues as the law of each Dominion. 18(4): Instruments of Instructions lapse.
• Repealed, with the Act of 1935, by article 395 of the Constitution.

Test yourself

1. What did section 6 do, and why was subsection (6) essential? It gave each Dominion's Legislature full power to make laws, including extra-territorial laws; abolished repugnancy to English law and to Acts of the United Kingdom Parliament, and gave power to repeal such Acts as part of the Dominion's law; abolished disallowance and reservation; and provided that no future UK Act would extend to a Dominion unless extended by its own Legislature. Subsection (6) was essential because it extended that power to making laws limiting the Legislature's own future powers, which is what a Constituent Assembly must be able to do if the constitution it makes is to bind the ordinary legislature.

2. What happened to the Indian States on the appointed day? By section 7(1)(b) the suzerainty of His Majesty over them lapsed, and with it every treaty, agreement, function, obligation, power and jurisdiction of the Crown in relation to them, subject to a proviso continuing arrangements about customs, transit, communications and posts until denounced or superseded. Paramountcy was not transferred to either Dominion. Section 2(4) left them free to accede to either.

3. Under what law was India governed between 15 August 1947 and 26 January 1950? Under the Government of India Act 1935 as applied by section 8(2) of this Act and adapted by the Governor-General's orders under section 9, with the Governor-General's and Governors' discretion and individual judgment abolished, no control by His Majesty's Government, no common centre with Pakistan, and the powers of the central legislature exercisable in the first instance by the Constituent Assembly.

4. What did this Act do to the appeal to the Privy Council? Nothing directly. It neither abolished nor preserved it in terms; section 15(3) assumes such appeals and petitions for special leave were pending and treats them as proceedings in the United Kingdom. The appeal was ended afterwards by Indian legislation in 1949.

5. Why did the Constituent Assembly repeal this Act by article 395? Because it did not want India's independence and its Constitution to rest on an Act of the British Parliament. For the same reason it did not submit the Constitution to Westminster for approval. Article 395 repealed the Indian Independence Act 1947 and the Government of India Act 1935 together.