Introduction to the Independence of Judiciary in India

India was under British Company Rule from 1788 – 1991. The company rule was ended when the government of India Act 1919 was enacted on as a result of Montage Chelmsford report. The object of passing the government of India Act 1919 was to provide increasing Association of Indians in every branch of Administration and the gradual development of self- governing institutions, with a view to progressive realisation of responsible government in British India and as an Integral part of British Empire. This Act states that the Indians were allowed to take part in government functions for the first time and at the same time, Indians were to accept the supremacy of British Empire and India as to continue its colony. This Act 1919 was the first step towards establishing a self- government in India, as a part of British Empire. The Governor General was appointed as the head of the Administration with authority to override the powers in respect of legislature. The Central Government having legislatures with Legislative Assembly has Lower House, and the council of states as Upper House. Both these legislatures comprise the central legislature. 

The Central Legislature was entitled to make laws for the whole of India relating to any subject. Thus, with the introduction of 1919 Act, Parliament form of Government was introduced as Bi-Cameral but the structure of the Government to remain as unitary. The Law passed by the Central Legislature was not allowed to be challenged ordinarily in the courts. But however the reforms of 1919 Act, failed to fulfil the aspirations of the people of India. At that stage, it ultimately led to an agitation for “Swaraj”, a self Government which was aimed to achieve through non-violent method and non-cooperation movement, led by the Indian National Congress. The courts in India were also constituted under the British Laws. The Privy Council was the highest court in India. Whereas Presidency courts of Madras, Calcutta worked under the British Laws. 

The Simon Commission was appointed to study the impact of 1919 Act in India. In the year 1927, Simon report was submitted in the year 1930, after several times of round table conference, Holding Consultations with the representations of the British Government. British India and Rulers of the States, a White Paper was prepared at the round table conference embodying the outlines of the reforms. As a result of recommendations of the select committee, the Government of India Act 1935 was passed replacing the earlier Government of India Act 1919. This Act was considered as the second mile-stone, leading towards a full responsible Government in India. The 1935 Act is a lengthy document with 321 sections and 10 schedules. Provincial authority and an All India Federation were the Basic features of the 1935 Act. The All India Federation consisted of the British India Provinces and Indian States which had desire to merge in to federation. The 1919 Act was reflected by unitary form of Government of India. Whereas 1935 Act was a reflection of federation of Provinces and Indian State as one unit. The 1935 Act abolish diarchy at the Provincial Level and introduced it as the Centre. 

The Governor General was the Executive Authority of the centre. The provincial autonomy was allowed under the 1935 Act. The Act divided the legislative powers between the states and the Central Government. This was the seedling point for our present system of division of powers between the Centre and the State Governments under schedule 7, list I, II, III of our present constitution. These two important acts of 1919 and 1935 during the British Rule were the Foundation Stone towards Indian Constitution under Federal Setup. Indians were acquainted with the Legislative Functioning with administrative powers but subject to limitations without absolute powers. These two important pieces of legislation under British Rule ultimately led to Parliamentary form of Government, federal setup, Division of powers between centre and states and are Independent Judiciary under a written constitution. The subsequent developments through Independence Movement progressed further by raising dissent against the British Rule. Indians ultimately wanted end of British Rule in India and wanted Total Freedom towards establishing an Independent and Sovereign State of India. 

Under the Act 1935, the Federal Court was established with One Chief Justice and not more than Six Judges. The retiring age of the Judge was Sixty Five years. Necessary qualifications were also specified. The Judges were appointed by the Crown. The Federal Court has the Jurisdiction of original, Appellate and advisory powers. Under the cabinet mission, 1946 comprising Lord Pethic Lawrence Sir, Stafford Cripps and Mr Alexander, Cabinet Ministers. For the purpose of framing a new constitution, a constituent assembly was to be elected. 

The Constituent Assemblies of both Dominions were empowered to frame laws for their respective Territories, till the new constitution came into force. The Indian Independence Act, 1947 was passed by the British Government. For the time being, till the new constitutions were framed, each of the Dominions of the Provinces was to be governed by the Government of India 1935. The Constituent Assembly could not be called as a Sovereign body since was brought about the British Government. In November, 1946, the members of the Assembly were elected by the Provincial Assembly, by Indirect Election, out of 296 seats in the Constituent Assembly; the Congress got 211 seats, Muslim League 73 seats, the rest of the seats were left unfilled. Sri Jawaharlal Nehru, Rajendra Prasad, Sardar Patel, Moulana azad, Gopala Swamy Iyyangar, Gobinda Ballabh Panth, Abdul Gofar Khan, T.T.Krishnamachari, Alladi Krishna Swamy Iyer. K.V.Shah, Masani, J.B.Kripalani, Dr.Ambedkar, Dr.Radhakrishnan, Dr.Jayakar were the important members of the Constituent Assembly. 

The first meeting of the Assembly was held 9th December 1946, as a Sovereign Constituent assembly for India; Dr.Rajendra Prasad was elected as its permanent chairman of the Constituent assembly. The draft constitution was prepared and published in January, 1948. The new constitution of India was adopted by the Constituent Assembly on 26th November, 1946. The Draft Constitution was considered for 114 Days. As many as 7635 Amendments were proposed and 2473 were actually discussed. The Constituent Assembly sat for 2 Years 11 Months and 18 Days. The new constitution was adopted on 26th November, 1949. It is the date of Commencement of the Constitution of India.


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