Copies of all written documents & allied information pertaining to partition of India were sought - CIC directed the Ministries of External Affairs, Culture & the PMO to collect all authentic documents from different sources & supply to National Archives
1. The applicant belonged to an organization called Bharath Pakistan Bangladesh Ekikaran Andolan. He filed an RTI application on 21.11.2015, seeking certified copies of all written documents and allied information pertaining to partition of India on 14th and 15th of August 1947; certified copies of official papers bearing signatures of all the authorities/freedom fighters/politicians before West Pakistan (presently Pakistan) came into existence. The CPIO stated that no such documents are available with their office and subsequently forwarded the application to the National Archives of India on 01.01.2016.
2. The CPIO Mrs Jaya Ravindran said that several such questions were regularly being filed with them seeking to know who granted us freedom, what are the related documents, did Gandhi, Nehru etc signed any papers, is there any Sandhi (pact between two nations) etc, regarding the Independence and Partition of India. Some critiques even questioned the status and capacity of the Queen to grant Independence or how the power or sovereignty was transferred from the British Queen to India, and the personalities associated with such process etc. The CPIO stated that only official document that they could think of in response to this request is "Indian Independence Act, 1947" that was passed by British Parliament. The CPIO assured that they would place enactment on the public domain ie, their official website.
3. The CPIO told the Commission that they were contacting the India Office in UK to find out any other relevant authentic documents on this issue, but only authentic document they could think of was Indian Independence Act 1947 regarding transfer of power.
4. It is relevant to extract the historic details in this regard. It is widely known that the Indian Independence Act is an Act of the Parliament of the United Kingdom that partitioned British India into the two new independent dominions of India and Pakistan. The Act received the royal assent on 18 July 1947, and Pakistan came into being on 15 August at the same time as Indian independence. The digital copy of original statute is available at
5. The Prime Minister of the United Kingdom announced on 20 February 1947 that:
i) British Government would grant full self-government to British India by June 1948 at the latest,
ii) The future of Princely States would be decided after the date of final transfer is decided. (Ghose, Sankar (1993). Jawaharlal Nehru : a biography (1. publ. ed.). New Delhi [u.a.]: Allied Publ. p. 151. ISBN 9788170233695.)
6. Some of the salient features of Act are as follows:
a) the Dominion of India may be regarded as an expression of the desire for self-government of the all people in India, and the Dominion of Pakistan as the expression of the demand for self-government by the Muslims
b) the 15 August 1947 was declared as the appointed date for the partition
c) Constitution for the New Dominions: until the time of framing of new constitution, the new dominions and the provinces thereof were to be governed by the Government of India Act 1935. (Temporary Provisions as to the Government of Each New Dominion)
d) The legislature of each dominion was given full powers to make laws for that dominion, including laws having extraterritorial operation.
e) No Act of Parliament of UK passed after the appointed date would be extended to the territories of new dominions.
f) The Governor-General of each dominion had full powers to give assent in His Majesty's name to any law of the legislature.
g) His Majesty's Government lost all the responsibility to the new dominions
h) The suzerainty of His Majesty's Government over the Indian States lapsed.
i) All the treaties or agreements with the Indian States and the tribal areas that were in force at the passing of the Act lapsed.
j) The title of "Emperor of India” was dropped from the titles of British Crown.
k) The treaty relations between Britain and the Indian States would come to an end, and on 15 August 1947 the suzerainty of the British Crown was to lapse. They would be free to accede to one or the other of the new dominions.
7. The India Independence Act was subsequently repealed by the Article 395 of the Constitution of India and Article 221 of the Constitution of Pakistan of 1956 to obtain true independence for the new states. Though, technically the new Constitutions did not have 'authority' to repeal this Act, it was done to sever the legal chain of validity and establish the constitution as an independent legal system.
8. It is also mentioned in various sources that the legislation was formulated by the government of Prime Minister Clement Attlee and the Governor General of India Lord Mountbatten, after representatives of the Indian National Congress (Jawaharlal Nehru, Vallabhbhai Patel, and Acharya Kripalani), the Muslim League (Muhammad Ali Jinnah, Liaqat Ali Khan, and Sardar Abdul Rab Nishtar, and the Sikh community (Sardar Baldev Singh) came to an agreement with the Viceroy of India, Lord Mountbatten of Burma, on what has come to be known as the 3 June Plan or Mountbatten Plan. This plan was the last plan for independence.
9. Eminent Author Mr Shivaprasad Swaminathan in his article "India's benign constitutional revolution" has discussed how 'We the People' came to be the source of authority of the Constitution. (http://www.thehindu.com/opinion/lead/India% E2%80%99s-benian-constitutional-revolution/article 12318419.ece) The author wrote:
This is the story of how and why the framers of the Constitution of India deliberately designed a procedural error in the adoption of the new Constitution with a view to severing the seamless transition of legal authority from the British Crown-in-Parliament to the new Republic of India. The deliberate procedural error consisted in a deviation from the Constitution making procedure prescribed by the
Indian Independence Act, 1947 — the law enacted by the British Parliament granting India independence and formally authorising the Constituent Assembly to draft a Constitution for the newly liberated state. To be sure, the framers of the Constitution of India were not the first, and indeed they were not the last to deliberately incorporate such procedural errors in the process of Constitution making. The founders of the Constitutions of several other states including Ireland, Pakistan, Sri Lanka and Ghana, which were being liberated from the British Empire, took such a step. In doing so, they were all motivated by the same goal: that of ensuring constitutional 'autochthony.'
The dominant academic view in the middle of the 20th Century was that autochthony could not be achieved simply by drafting an original Constitution or verbally invoking We the People as the source of its authority, for autochthony does not so much concern the content of the Constitution as its pedigree: the chain of legal validity authorising it. On Kelsen's account, only an 'unlawful' or 'revolutionary' act could ensure an autochthonous Constitution by rending asunder all continuity with the imperial predecessor.
Such break in legal continuity is automatically achieved where a former colony's independence is won as the result of an armed revolution, as was the case with the United States of America. Independence in such instances is not granted 'legally' by the Crown-in-Parliament and the Constitution of the newly liberated former colony is in no way authorised by the imperial predecessor. The situation is very different where independence of a former colony is not brought about by armed revolution, but is 'legally' granted by the imperial predecessor. This was the case with India, Pakistan, Ireland, Sri Lanka and Ghana whose independence was the result of the British Crown-in-Parliament's enactment of separate statutes of independence (Independence Act) for each of them. The statutes of independence also set up Constituent Assemblies authorising them to draft new Constitutions for each of these States. Following the constitution-making procedure stipulated in the statute of independence would have meant that the validity of the new Constitution could ultimately be traced to an imperial grant. The mere verbal invocation of We the People as the 'source' of authority in such cases would have rung hollow, apart from being jurisprudentially implausible since the source of authority of the new Constitution would continue to be the imperial predecessor's Constitution. In such cases, it was thought that since there was no 'revolution,' one had to be deliberately made up in order to secure an autochthonous Constitution. Accordingly, as John Finnis argues, the framers of new
Commonwealth Constitutions took great care to do something illegal "so as to make up a revolution, however contrived."
10. Independence was formally granted to India by the Crown-in-Parliament's enactment of the Indian Independence Act, 1947 though the executive decision to grant India independence was arrived at earlier in the Cabinet Mission Plan (1946). It was under the Cabinet Mission Plan that the Constituent Assembly was envisaged and charged with the mandate of drafting the new Constitution for India. This was legally recognised in Section 8 of the Independence Act. The Cabinet Mission Plan had envisaged that the new Constitution would be put to the Crown-in-Parliament for approval. Though the Indian Independence Act did not reiterate this requirement, it did specify that the new Constitution drafted by the Constituent Assembly would have to receive the assent of the Governor General of India, who would assent to such law in the name of the British Crown.
11. The appellant raised an important issue of tracing documents regarding the transfer of power, which is an interesting research question that should have been authentically answered.
12. It is a matter of general knowledge that Indian people achieved Independence after constant struggle in different forms, the historical landmark developments are recorded in certain documents, availability of which is not authentically known. They could be available with India Office in UK or with UK Administration or with any other authority in India. All such authentic documents should have been collected by the Government of India and placed in the National Archives of India, for public access. The RTI Act has added a right to citizens to seek copies of such documents. In this context the appellant's request for information needs serious attention.
13. The people who question who gave us independence, that independence means really 'independence' and it does not mean 'grant' or 'pact' etc. People of India are proud that their leaders achieved it, and not begged for anybody's grant. The applicant's demand reminds the Government to collect all necessary authentic documents and provide access to them.
14. The Commission directs the Ministries of External Affairs, the PMO and Culture to collect all authentic documents from different sources and supply the same to the National Archives of India and the later is directed to coordinate with the above ministries and pursue the collection of documents and to provide open public access to the same as soon as possible.
(M. Sridhar Acharyulu)
Central Information Commissioner
Citation: Madan Lal Narula v. National Archives of India in CIC/SH/A/2016/001590 Decided On 16.11.2017