B.N. Roy Advocate LawyersclubIndia.com
On 2nd. September,1946, the interim and temporary Government was formed from the Constituent Assembly (which was then newly elected). The interim Government was in place till 15th. August,1947,when the nations of Indian and Pakistan received Independence from colonial rule. The Constituent Assembly elections was not regarded as direct elections. The members of the Assembly were elected from each of the Provincial Legislative Assemblies in which The Indian National Congress won major seats and Muslim League won seats from those places where the muslims were majority. Mr. Clement Attlee,the then Prime Minister of U.K.sent across the 1946 Cabinet Mission to help formation of Government which rould led to an Independent India. The Executive branch of this Interim Government was the Viceroy's Executive Council, initialy headed by the Viceroy of India, it was changed to a council of ministers. Pandit Jawahar lal Nehru was the Vice President of the council and he held powers of a Prime Minister. It was decided that after Independence, all members of the council would be Indian, except the Viceroy, would go on to become the first Governor Gfneral of India after Independence. Until August, 15th 1947, India remained under the ruler of the U.K.and the interim government set only to establish diplomatic relations with the other counties. In the meanwhile the constituent assembly, from which the Indian Government was created had the challenging task of drafting the Constitution for Independent India. India received independence on 15th. August,1947 and Jawaharlal Nehru became the first Prime Minister of India. The Constituent Assembly completed the drafting of Constitution of India on 26th. November, 1949 and India was declared a Republic on 26th. January,1950.Thereafter said Prime Minister and his council of Ministers formed Election Commission to conduct elections and formed Lok Sabha and Rajya Sabha and the present structure of administration. So as imagined by you nothing has been left out to say illegal.-B. N. ROY
Here issues arises:-
(i) It is not constitutional to say that the said Prime-Minister and his council of Minister formed Election Commission of India as the Article 324 of the Constitution of India came into force on 26th November, 1949. See Article 394 of the Constitution.
(ii) The Government of India formed under the Government of India Act, 1935 had no mandate to continue after 26th January, 1950 as The Government of India Act, 1935 was repealed on 26th January, 1950. See Article 395 of the Constitution.
(iii) The Constitutional provisions relating to formation of the Government of India was not kept in abeyance before 26th January, 1950. See Article 392 of the Constitution.
Bindeshwar Sah Advocate.
