1. Indian Independence Act 1947?

• The Indian Independence Act 1947 was enacted by the British Parliament, which
got its royal assent on July 18, 1947. By affirmation of royal assent, India gained
independence.
• The Indian Independence Act 1947 provided that the date August 15, 1947,
would be the "'appointment date’ under the Government of India Act, 1935 and
there would be two sovereign dominions, India and Pakistan.
• The constituent assembly of both the dominions was given the freedom and
power to choose the power to frame and adopt any constitution.
• It gave all the authority to the constituent assembly to repeal any of the acts
made by the British Parliament, even the Indian Independence Act of 1947.
• From August 15th, 1947, to January 26th, 1950, a drafting committee was
formed to draft the Indian Constitution. The drafting committee worked directly
under the then-law minister, Dr. B.R. Ambedkar.
• The committee prepared the draft of the Constitution of India after detailed
deliberation and discussion on the existing system of administration. This draft
received assent from the President of India, Dr. Rajendra Prasad.
History of The Indian Independence Act 1947
• On February 20, 1947, the then British Prime Minister, Clement Atlee, declared
The Indian Independence Act 1947. Soon after the announcement of Clement
Atlee, the Muslim League demanded the partition of the country for a separate
nation for Muslims.
• Regarding this, the British government on June 3, 1947, clearly stated that any
Constitution framed by the constituent assembly of India would not apply to the
parts of the country that were not willing to accept it.
• On the very same day, on June 3, 1947, Lord Mountbatten, who was the Viceroy
of India, gave the plan of partition, which was popularly known as the
Mountbatten Plan. This plan implemented the two-nation theory of Syed Ahmad
Khan.
• The Congress and Muslim League together agreed on this plan, and it was
brought into action with immediate effect, thereby enacting the Indian
Independence Act 1947.

Features of Indian Independence Act 1947

• The Indian Independence Act 1947 declared the end of British rule in India and
India was a sovereign state from August 15th, 1947.
• This act abolished the offices of Viceroy and Governor-General, who were to be
appointed by the British king for each Dominion. This is because, after this act,
Britain was supposed to have no responsibility concerning the Government of
India and the Government of Pakistan.
• Furthermore, this act gave both dominions the freedom to choose the constitution
for their respective nations and to oppose any laws enacted by the British
government.
• It abolished the office of the Secretary of State for India and his functions were
transferred to the Secretary of State for Commonwealth Affairs.
• All the Indian princely states were granted freedom to join either the Dominion of
India or the Dominion of Pakistan or even choose to remain independent on their
own.
• And also, it removed the title of Emperor of India from the royal titles of the British
Kingdom.

Impact of the Indian Independence Act 1947

• The Indian Independence Act 1947 was widely and happily accepted throughout
the nation and by both the parties, the Congress and the Muslim League, as well.
• Lord Samuel, who was a British Liberal politician, also stated that the Indian
Independence Act is a "peace treaty without war".
2. Government of India Act 1935
What is Government of India Act 1935?
In August 1935 the British Parliament passed the Government of India Act,1935 which
at that time, it was the longest act enacted by the parliament of Britain. Namely, the
Govt of India Act 1935 and the Government of Burma Act 1935 are two separate acts
that were divided by it.
• The main aim of the Government of India Act 1935 was to make further
provisions for the Indian Government which was finally repealed in India on 26th
January 1950.
• The Government of India Act 1919 was ended by this Act.
• The major benefit was that the Government of India Act 1935 was the first to
provide the provinces with autonomous status by giving them freedom from
external or British interference.
• Another major benefit was that more voting rights were given to people this time
than in the Government of India Act 1919.
History of Government of India Act 1935
• For the self-government form to be imposed on India, the Government of India
Act 1919 was insufficient and did not provide enough provisions.
• There was frustration among the Indian officials at that duration since they
believed the area they were controlling officially, was still in the hands of British
officials.
• Therefore the Simon Commission was tasked with reviewing and amending this
matter.
• There had been some criticism of the Simon Commission report, leading to the
Round table conference inLondon where the Indian community representatives
were consulted on this matter.
• However, this round table conference was a failure, as it could not meet its goal.
The Round table conference issued a white paper in 1933 recommending a
constitution of India to be drafted.
• The white paper’s recommendations were discussed by the committee headed
by Viceroy Linlithgow.
• The report prepared by the committee was published in 1934 and had a bill of
law incorporated into it. This report and bill were successfully passed by the
British Parliament. Later on, this Act was enacted into law after it received the
Royal Assent in 1935 as the government of India Act.
• Later on, Indian federalism was established by the government of India Act 1935.
• So it can be said that the government of India 1935 was prepared from 4 sources
which were the Simon Commission report, the third round table conference
discussions, the white paper issued in 1933, and the joint select committees'
report.
Objectives of Government of India Act 1935
• The Government of India Act 1935 abolished the dyarchy system imposed by the
government of India Act 1990 and established the Federation of India, having
provinces and princely states.
• Despite this, the Federation of India was not able to be formed since there were
not a sufficient number of princely states.
• The main motto behind the Government of India Act 1935 was to establish an
Indian Federation consisting of the governors and Chief commissioners of
provinces of British India that joined voluntarily.
Provisions of Government of India Act 1935
1. All India Federation
• Several British Indian provinces, as well as Indian states, joined together to form
an All-India Federation. A state was eligible to be part of the Federation only
under the conditions specified in the instrument of accession.
• Under the Government of India Act 1935, the states were absolutely free to
connect with the Federation of India at their discretion.
• The act stipulates that India can become a federal country if half of its states
agree to join it. But due to the lack of princely states joining the Federation of
India the provisions regarding the Federation were not implemented.
2. Provincial Autonomy
• In addition to marking the beginning of prevention autonomy, the new act had
one redeeming feature, which was that the provinces were free to act as
autonomous administrative units in the spheres defined for them.
• In fact, the app required the provincial legislature to be formed on the advice of
the Governor by the responsible government in each province.
• The duration of this program was very short as 1937 marked the beginning of it
and in 1939 it was discontinued. As a result of the Act of 1935, the provinces do
not have a truly responsible government.
• Despite ministerial control, the departments were not fully under the control of the
ministers. There were a variety of overriding powers that were retained by the
governors but a few of them were used.
3. Division of the Subject
• The Government of India Act 1935 revised the division of subjects and added
some more subjects between the Centre and the Provinces.
• The subjects were divided into three lists-
• The federal list has 59 items.
• The provincial list has 54 items.
• The concurrent list has 36 items.
• The provincial legislature was solely responsible for the subjects on the
Provincial List.
• As a result of the act, both federal and provincial legislature was empowered to
enact legislation on certain topics, and in case of disagreement, the federal law
would prevail.
4. Dyarchy at the Centre
• The Government of India Act 1935 abolished the system of dyarchy, that was
introduced by the GOI Act 1919, and introduced two types of federal subjects
1. The Reserved Subject, where the subjects were to be administered by the
Governor General.
2. The Transferred Subject, where the subjects were to be administered by
the council of ministers, and the count of ministers in a council could not
exceed 10.
5. Supremacy of the Parliament
• The Government of India Act 1935 was very rigid in nature as any Indian
legislature, whether Federal or temporary, could not change or amend the 1935
Act.
• Changing any law under the Government of India Act 1935 was solely the
responsibility of the British government.
• It won't be wrong to say that the British Parliament imposed the 1935 Act on
India.
6. Bicameral Legislature
• To adjudicate disputes relating to federal matters, there was a provision for
establishing a Federal Court under the Government of India Act 1935.
• Some other provisions of the Government of India Act 1935 are- provided to
control the currency and credit of the country and established the Reserve Bank
of India. There is also provision for establishing a Federal Public Service
Commission, a Provincial Service Commission, and a Joint Public Service
Commission.

Features of Govt of India Act 1935

Following are the features of the Government of India Act 1935-
• The Government of India Act 1935 divided the powers among the center and
states in terms of three lists: federal, provincial, and concurrent. The residual
powers were provided to the viceroy of India, but the concept of a Federation
was not a success as the princely states did not join it.
• This act demolished the dyarchy system in the states and introduced provincial
autonomy as a replacement for it. These provinces were provided with their own
defined spheres and could act as the autonomous administration units in them.
Also, with this, the government became more responsible in the provinces as the
Governor was required to act by taking advice from the ministers from the
cabinet.
• This act introduced bicameralism in 6 provinces- Bengal, Bombay, Madras,
Bihar, and Assam. These provinces were made bicameral and consisted of
upper and lower houses.
• It provided separate electorates for some special classes like the Schedule Caste
labor class and women to increase the principle of communal representation.
• It increases the voting rights of people by extending the franchise to 10% of the
total population.
• To control the finances and monetary policy it, established the Reserve Bank of
India.
• The Government of India Act 1935 established a provincial public service
commission, joint Public Service Commission, and Federal Public Service
Commission.
• In 1937 the Government of India Act 1935 established the federal code.
• Also, this act discarded the Council of India, which was made by the GOI Act
1858. However, the secretary of state of India was assisted by some advisors.
Significance of Government of India Act 1935
• The Government of India Act 1935 curtails the power centralized with the Union
Government and distributes it to the regional governments.
• There were separate electorates for the worker and women, that allowed them
for their own representations.
• It was the first moment when the provinces were given the title of an autonomous
state.
• Compared to the Government of India Act 1919, the Government of India Act
1935 provided more people with voting rights.
• The concept of the Public Service Commission(presently in Article 315) was
adopted under the Government of India Act 1935.
• In 1935, the Government of India Act provided for the appointment of the
governor.
Failure of Government of India Act 1935
• The Government of India Act 1935 provides so many non-mandatory powers to
the Governors and Governor-General.
• There was a fundamental flaw in the proposed formation of the federation.
• As a result, the legislation was unable to provide individuals with constitutional
flexibility.
• The act did not provide a proper federal structure because most of the powers
were withheld by the Governor-General.

3. Basic Principles Committee [1949-1952]

After the Objectives Resolution was passed in 1949, the Constituent Assembly set up a number
committees to draw the future constitution on the basis of the principles given in the Objectives
Resolution. The most important among those committees was the Basic Principles Committee set
up on March 12, 1949, by Khawaja Nazimuddin on the advice of Prime Minister Liaquat Ali
Khan.
The main function of this committee was to determine the basic principles of the future
Constitution of Pakistan. The committee comprised 24 members. Maulvi Tamiz-ud-din Khan
headed it and Liaquat Ali Khan was its Vice President. The committee presented its interim
report to the Legislative Assembly in 1950 (1st draft). This was a short document presenting the
guidelines and principles of the future Constitution of Pakistan.
Representatives of East Pakistan raised objections against the report. The main criticism was
against the quantum representation in the Central Legislature. East Pakistan, with a majority of
the population, was given an equal number of seats in the Upper House as West Pakistan, thus
reducing the representation of the majority of the population in Pakistan by one-fifth. East
Pakistan representatives also did not like Urdu being declared as the only national language of
Pakistan.
Liaquat Ali Khan agreed to consider the objections with an open mind. He, therefore, postponed
the deliberation of the Constituent Assembly in order to enable the Basic Principles Committee
to examine and consider suggestions that might be made by the people regarding the principles
of the Constitution. In order to include public opinion, Liaquat Ali Khan called forth general
comments and suggestions by the public on the report. A large number of proposals and
suggestions were sent by the public, which were examined by a special subcommittee headed by
Sardar Abdur Rab Nishtar. The setting up of the committee was a right and commendable step,
but its working was immensely affected by the assassination of Liaquat Ali Khan. The
subcommittee, however, gave its report to the Basic Principles Committee in July 1952, which
was presented by Khawaja Nazimuddin in the National Assembly (2nd draft).
According to the Basic Principles Committee Report, the head of the state was to be a Muslim,
elected by a joint session with the majority vote of the Central Legislature for a period of five
years. The Prime Minister was to be appointed by the head of the state. The Central Legislature
was to consist of two houses: the House of Units with 120 members and the House of People
with 400 members. There were to be three lists of subjects for the division of power between the
Federation and the Units. Adult franchise was introduced. The judiciary was to be headed by the
Supreme Court of Pakistan consisting of a Chief Justice and two to six other judges. The Chief
Justice was to be appointed by the head of state. There was to be a High Court for each of the
units of East Pakistan, Punjab, Sindh Baluchistan and the N. W. F. P. A Board of Ulema was to be
set up by the head of state and provincial governors. The Board of Ulema was to examine the law
making process to ensure that no law was passed that went against the principles of the Quran
and Sunnah. The Objectives Resolution was adopted as a preamble to the proposed Constitution.
The Basic Principles Committee's report was severely criticized and raised much bitterness
between East and West Pakistan. The Prime Minister, Khawaja Nazimuddin, however, welcomed
the report and commended it as a valuable document according to the aspirations of the people of
Pakistan. But the fact was that the nation was not satisfied with the report and hence there was a
serious deadlock in making of the constitution.

4. Maulvi Tamizuddin Khan v. Federation (PLD 1955 Sindh 96) & Federation v.
Tamizuddin Khan (PLD 1955 F.C. 240)
On October 24, 1954, Governor General (Ghulam Muhammad) issued an order of
exigency declaring that the Constitutional machinery had broker dow and that the assembly
could
no longer function. A new assembly would be elected and the Ministry reconstituted.
Maulvi Tamizuddin Khan , who is the head and president of the dissolved constituent
assembly, confronted and question the action of the Governor General by filing a petition under
article 223 A of Indian Act, 1935 for a ‘ Writ of Mandamus ’ in the Chief Court Of Sindh to
restraint
the Federal Government from giving effect to the proclamation and a ‘ Writ of Quo Warranto ’ to
have the appointment of some of the new Ministers declared as repugnant to the Act of 1935, as
amended. The petitioner alleged that the Governor General’s had no authority for issuing such a
proclamation, under any law.
The writ petition was contested by the federal government and it was contended that the
Government of India (Amendment) Act, 1954 which had given the superior courts power to issue
such writs, was unenforceable for want of the approval of the Governor General. The Governor
General claimed that the section 223 A is not a law, as a new clause in the Act requires the assent
of Governor General.
During the preceding seven years, in federal legislature, it had the practice to present Bills
enacted by the members of legislature, for the approval of the Governor General, but law made
by
the Constituent Assembly, when acting in that capacity, had been authenticated by its President
and
published in the Pakistan Gazette.

● Judgment of Chief Court Sindh

A bench of the Sindh Chief Court, consisting of four judges, heard a petition and
unanimously held that the words in section 6(3) of the Independence Act to the effect that “ The
Governor General is authorized to ratify any law of the legislature of the Dominion… ” merely
meant, as had previously been assumed, that if such assent was necessary, like in lawmaking of
the
Federal legislature, the Governor General's power to give it was not subject to constitutional laws
passed by the assembly, because it was a sovereign body, with no prescribed duration, subject to
no control from outside itself. The powers of the Governor General were restricted to the
ministry
and government officials of the Dominion and did not extend to participation in the making of
the
Constitution, nor to a dissolution of the Assembly. The Court declared this dissolution Ultra
vires,
and nullity in law.

● The Appeal to the Federal Court

On appeal of the Federal Court, the decision was reversed in a historic judgment delivered
in March 1955. The case was decided inclined to government and denied the petition of Maulvi
Tamizuddin, challenging the proclamation of the Governor General. Four out of five judges held
assent by the governor general to be essential for the validity of even constitutional legislation.
The
Federal Court decided the matter mainly on the question of the Governor General's assent to
Section 223-A. This section is added to Government of India Act, 1935 by amendment. Moulvi
Tamizuddin had passed the amendment, in his assembly, but not ratified by the Governor
General.

● Justice Munir’s Judgement

In the primary judgment, delivered by Chief Justice, Muhammad Munir , it was stressed
that, as Pakistan was a member of the Commonwealth and its interim constitution was of the
Commonwealth type, there must be an authority with power to assent to laws. When the
constituent assembly was not exercising the restricted lawmaking authority of the federal
legislature
under the act of 1935, it was acting as the legislature of the Dominion as stated in Section 9(1) of
the Independence act which enacted that “ ….the powers of the legislature of the Dominion shall,
for the purpose of the provisions as to the constitution of the Dominion, operable in the first
occurrence by the lawmaking assembly… ” . This, conforming to the learned Chief Justice meant
that the Governor General, as spokesperson of the Crown, must under section 6(3) of the Act
give
or withhold assent. Reliance was also stated in section 5 “ …there shall be a Governor General
who shall represent His divine right for the purpose of the government of the Dominion. ”
According to Chief Justice “government” necessarily included administration of Constitutional
laws and must, therefore, embrace the making of such laws. As for the government that the
various
organs of government had throughout acted in the assumption that assent was unnecessary, this
plea was met by observing that this argument could only be taken into consideration if there was
any doubt as to the meaning of section 6(3), but as there was no such doubt, effect had to be
given
to its terms irrespective of the consequences.

● Justice A.R. Cornelius's dissent

In a dissenting judgment, Justice Cornelius held that assent was not necessary for the
validity of constitutional legislation and no such conclusion could be drawn from the mere fact
that
Pakistan was in the Commonwealth, especially as the circumstances in which and the conditions
under which Pakistan became a Dominion were without precedent in Commonwealth history.
The
Constituent Assembly was not the lawmaking body of the state as such a body was still to be
created by the Constituent Assembly. There was a clear distinction between government and
constitution-making; American Constitutional amendments did not require the assent of the
President. The federal executive had acted upon constitutional legislation to which no assent had
been given, so as to change the position of innumerable individuals and to affect rights and create
interests, which defied categorization.

● Implications of Moulvi Tamizuddin Case

Maulvi Tamizuddin case wrecked the fate of Pakistan as it is in a constant situation of
chaos and political dilemma. I think that this judgment caused immeasurable damage to the
constitutional development of Pakistan. It rocked the constitutional ship of the country at its start.
This judgment irrevocable, weaken and harm the image and integrity of the judiciary of Pakistan
in
eye of its own citizens. This case also set forth the four martial laws in Pakistan. These coups
harm
the nation in every aspect. In an era of dictators, the fundamental rights of citizens of Pakistan
had
brutally infringed. I also considered the separation of West Pakistan as the consequence of this
case. This case gave birth to the doctrine of necessity, thus triggers abrogation of laws,
suspension
of constitution, terrorism, sectarianism etc.

5. Usif Patel Case Summary

Brief Background of the Case.

The appellants in these appeals were declared to be Goondas by the District Magistrate of
Larkana under the Sindh Control of Goondas Act (Governor's) Act XXVIII of 1952. They were
directed to furnish heavy security, and upon failure to do so they were detained. Against their
detention in prison the petitioners made applications to the Chief Court of Sind under section
491 of the CrPC (Habeas Corpus), alleging that their imprisonment was wrongful and. praying
that they be set at liberty. The petitioners in the other two appeals moved revisions under
section 17 of CrPC before the same Court. The Chief Court held that all the detentions were
legal and rejected the applications. The appellants appeared before the federal court and
advanced a fresh argument challenging the very validity of section 92 of the Indian
Independence Act.
The issues that needed to be decided by the Federal Court:
The issue before the court was:
(a) the validity of Section 92(A) and the subsequent Sind Control of Goondas Act (XXVIII of
1952):
The legislative history of the Act include the Government of India Act 1935 that included many
sections which required the Governor-General or the Governor of a province concerned to act
in his discretion namely Section 93 which dealt with an instance of constitutional machinery
failure in any province and stipulates that the governor of the said province can make a
proclamation assuming to himself all the powers vested in any legislative body in the province.
Under the Indian Independence Act that came into effect on the 15th of August 1947,Section 8
the new dominion declared all sections of the Government of India act 1935 which required the
governor-general or the governor to act in his discretion shall cease to operate. However, due to
no electoral machinery and in certain provinces no provincial legislatures were operating certain
powers were vested in the office of the Governor General under Section 9(1) of the Indian
independence Act .i.e. he could omit adapt or add any of the sections of the Government of
India act 1935 into effect if the situation deemed it necessary. So the Governor-General
reinserted Section 93 into the Act on the 19th of July, 1948.

However, following the Molvi Tamizzudin Judgement, all acts that did not receive the assent of
the Governor General were declared void, that also included the Indian Independence
Amendment Act 1948, the only piece of law that validated the Governor-General’s
reintroduction of section 93 into the Indian Independence Act four months after the duration of
amendments expired (31st of March,1948). The appellants contended that since the
reintroduction of the Section 92 is invalid, the powers to promulgate law as stipulated in the
Section were also invalid namely the Sindh Goondas Control Act .
(b) the retrospective assent given by the Governor-General under the Emergency Powers
Ordinance 1955:
The power of proclamation, the Attorney General argued, as afforded to the Governor General
stemmed from Sections 42 and 102 of the Government of India Act 1935. Hence the Schedule 1
and 2 of the Emergency Powers Ordinance 1955, were a relevant piece of law. However, under
Section 102 federal legislature was not empowered to make provisions to the constitution.
hence neither was the Governor-General competent to issue ordinance on a constitutional
matter. Furthermore, under Section 8 subsection (1) of Indian Independence Act; 1947, the
power of the Legislature of the Dominion for the purpose of making provision to the
constitution could be exercised only by the Constituent Assembly and that power could not be
exercised by the Federal Legislature. Any legislative provision that relates to a constitutional
matter is solely therefore within the powers of the Constituent Assembly.

A. Summary of the opinion of Justice. Munir:

Chief Justice Munir first declared that the exclusion clause in Section 2(2) (a) could not
have the effect of divesting this Court of the jurisdiction conferred on it by section 205 of
the Government of India Act to entertain, hear and determine an appeal if the High
Court certifies that the case involves a substantial question of law as to the
interpretation of the Government of India Act or the 'Indian Independence Act.
Secondly, CJ discussed that the Governor-General in section 102 of Government of India
Act was given the power of making Ordinances subject to the restrictions of the Federal
Legislature to make laws,' and that any Ordinance made under that section may be controlled
or superseded by an Act of the Federal Legislature. Since the
Governor-General's power to promulgate Ordinances is subject to the same restrictions
as the power of the Federal Legislature to make laws; the true issue in the case is
whether the Federal Legislature was competent to amend subsection (5) of section 9 of
the Indian Independence Act which the Constituent Assembly amended by the
Amendment Act of 1948.
Lastly, this Court held in Mr. Tamizuddin Khan's case 'that the Constituent Assembly was
not a sovereign body. But that did not mean that if the Assembly was not a sovereign
body the Governor-General was. The Governor-General in Pakistan is the constitutional
Head of the State, namely, a position very similar to that occupied by the King in the
United Kingdom,the Governor-General is possessed of no more powers than those that
are given to him by those Acts.On principle the power of the Governor-General to
 legislate by Ordinance is always subject to the control of the Federal Legislature -and he
cannot remove these controls merely by asserting that no Federal Legislature in law or in
fact is an existence. No such position is contemplated by the Indian Independence Act,
or the Government of Indian Act, 1935. Any legislative provision that relates to a
constitutional matter is solely within the powers of the Constituent Assembly and the
Governor-General' is under the Constitution Acts precluded from exercising those
powers.

B. Summary of the opinion of Justice. Cornelius.

Per Justice Cornelius, no provision in the Constitution and no rule of law applicable to
the situation, empowers the Governor General to validate the stated in the Schedule to
the Emergency Powers Ordinance, 1955, whether temporarily or permanently. The
legislative powers of the Governor-General under the existing Constitution are confined
within the terms of section 42 Government ofIndiaAct,1935. Those powers are
sufficient to enable the Governor-General to stay all proceedings in Courts other than
the Federal Court, in which the legal provisions referred to are called in question.

The action that was taken was not an extreme emergency,per the maxims of salus
populi suprema lex.
The effect of that judgment is in my opinion, to make it clear that in relation to the
very situation which the Proclamation of the 16th April, 1955 is intended to remedy,
this Court was emphatically of the view that the Governor-General could not invoke
any powers except such as were available to him under the constitutional
instruments in force. To that opinion, I steadfastly adhere, and nothing which has been
said in the arguments in the Reference affords in my view, sufficient, justification for
varying that finding, which constitutes law declared by this Court under section 212,
Government of India Act, 1935 not to validate it retrospectively since it is relevant to the
substantive law that vested certain rights.
Retrospective assent---- only procedural not substantive act.