Introduction to Article 395
Article 395, the final article in the text of the Constitution (Part XXII), serves a pivotal purpose by formally repealing the key legislative instruments that governed India prior to the adoption of its own Constitution. By explicitly revoking the Indian Independence Act, 1947, and the Government of India Act, 1935, along with their amendments, this article symbolically and legally severed India's colonial ties and asserted its complete sovereignty. It marks the establishment of India as an independent republic operating under its own self-made supreme law, signifying a definitive break from its colonial past.
The Acts Repealed by Article 395
Article 395: Exact Wording
"The Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed."
Indian Independence Act, 1947
This Act of the British Parliament formally partitioned British India into the Dominions of India and Pakistan, granted them independence, and provided for their interim governance until their own Constitutions were framed. Its repeal signified that India was no longer a British Dominion but a sovereign republic.
Government of India Act, 1935
This was a comprehensive Act of the British Parliament that served as the primary constitutional framework for British India before 1947. It established provincial autonomy, a federal structure (though not fully implemented), and a system of governance. Its repeal symbolized the replacement of an imposed colonial constitution with a self-drafted one.
All Enactments Amending or Supplementing the 1935 Act
This covers various supplementary British laws that modified or added to the 1935 Act over time, ensuring a clean slate for the new constitutional order.
Exception: Abolition of Privy Council Jurisdiction Act, 1949
This Act, passed by the Indian Constituent Assembly (acting as the Dominion Legislature) shortly before the Constitution's commencement, abolished the jurisdiction of the Judicial Committee of the Privy Council (in London) as the highest court of appeal for India. Its exclusion from repeal meant that this abolition remained in force, ensuring that the Federal Court of India (and subsequently the Supreme Court) became the final judicial authority.
Profound Significance of the Repeals
Complete Transfer of Sovereignty
It formally marked the complete transfer of sovereignty from the British Crown and Parliament to the newly independent Republic of India. India was no longer governed by laws enacted by a foreign power.
Establishment of a Fully Independent Republic
By repealing the Instruments of British rule, Article 395 asserted India's status as a sovereign, self-governing nation, with its own Constitution as the supreme law of the land.
Severing Legal Continuity with British Enactments
It broke the legal umbilical cord with British parliamentary supremacy and jurisprudence that had historically governed India. The new Constitution became the sole source of all legal and constitutional authority.
A Self-Made Constitution
It underscored that the Constitution was a document made by the people of India, through their elected representatives in the Constituent Assembly, for themselves.
Foundational for Constitutional Supremacy
It established the supremacy of the Indian Constitution, as all pre-existing laws and constitutional frameworks derived their authority from, and were made subordinate to, the new Constitution, unless explicitly continued or adapted.
Quick Notes for Prelims
- Article 395: Repeals.
- Repealed Acts:
- Indian Independence Act, 1947.
- Government of India Act, 1935 (and its amendments/supplements).
- Exception (NOT repealed): Abolition of Privy Council Jurisdiction Act, 1949.
- Significance:
- Complete transfer of sovereignty.
- Establishment of India as independent republic.
- Severed legal continuity with British laws.
- Established Constitutional Supremacy.
Analytical Insights for Mains
Symbolic vs. Substantive Break:
While Article 395 symbolically severed colonial ties, debates exist on how much substantive continuity (e.g., legal principles, administrative structures, parliamentary system) remained from the Government of India Act, 1935, which served as a major source for the new Constitution. The continuity is more evident in administrative and legal structures, while the break is fundamental in terms of sovereignty and popular legitimacy.
Completeness of Repeal:
The explicit listing of acts (and one exception) aimed to avoid ambiguity about which pre-Constitution laws ceased to apply. This ensured legal certainty from the outset.
Continuity of Governance:
Despite the repeal, many provisions of the Government of India Act, 1935, were directly borrowed or adapted into the Indian Constitution (e.g., federal structure, parliamentary system, emergency provisions, distribution of powers). This shows a pragmatic approach to constitution-making, retaining what worked while rejecting foreign rule.
Foundational for Rule of Law:
The complete repeal and assertion of the new Constitution as the supreme law established a clear and unambiguous basis for the rule of law in independent India.
Constitutional Supremacy:
Article 395 is the ultimate legal declaration of the supremacy of the Indian Constitution over all prior laws and external authorities. This underpins all subsequent constitutional developments and judicial pronouncements.
Independent Legal System:
By retaining the abolition of the Privy Council's jurisdiction, it reinforced the autonomy of India's judicial system, with the Supreme Court as the final arbiter.
Symbol of Self-Governance:
It continues to be a powerful symbol of India's journey from a colonial state to a sovereign democratic republic, emphasizing the nation's control over its own destiny.
Judicial Review of Pre-Constitutional Laws:
Article 395's role is to ensure that any pre-Constitution law that wasn't repealed by the Constitution but continued in force (under Article 372) would still be subject to the test of consistency with the new Constitution, thereby ensuring constitutional supremacy.
Historical Context in Legal Discourse:
While Article 395 is static, its historical significance often resurfaces in legal and political debates concerning India's constitutional journey, the nature of its independence, or the legacy of colonial laws that might still persist (if not explicitly repealed by other legislation or deemed inconsistent with the Constitution).
UPSC Previous Year Questions
Prelims MCQs
1. UPSC Prelims 2017: Which of the following Acts were repealed by Article 395 of the Constitution of India?
- The Indian Independence Act, 1947
- The Government of India Act, 1935
- The Abolition of Privy Council Jurisdiction Act, 1949
Select the correct code:
- (a) 1 and 2 only
- (b) 2 and 3 only
- (c) 1 and 3 only
- (d) 1, 2 and 3
Answer: (a)
Hint: The Abolition of Privy Council Jurisdiction Act, 1949, was not repealed by Article 395.
2. UPSC Prelims 2011: The Constitution of India was framed by the Constituent Assembly. When was the final text of the Constitution adopted by the Constituent Assembly?
- (a) 15th August 1947
- (b) 26th January 1950
- (c) 26th November 1949
- (d) 15th August 1950
Answer: (c)
Hint: While Article 395 deals with the commencement and repeal, this question tests the adoption date, which is crucial for understanding the historical context.
Mains Questions
1. UPSC Mains 2018 (GS Paper II): Article 395 of the Indian Constitution holds profound symbolic and legal significance in India's journey as an independent republic. Discuss its provisions and explain its significance in establishing India's constitutional supremacy. (15 marks)
Direction:
- Introduction: Briefly introduce Article 395 as the final article dealing with repeals.
- Provisions: Clearly list the acts repealed (Indian Independence Act, 1947; Government of India Act, 1935, and its amendments). Explicitly mention the one act not repealed (Abolition of Privy Council Jurisdiction Act, 1949).
- Significance in Establishing Constitutional Supremacy: Complete Transfer of Sovereignty, Self-Made Constitution, Severing Legal Continuity, Foundational for Rule of Law, Judicial Independence.
- Conclusion: Summarize Article 395 as a declaration of India's sovereignty and constitutional supremacy.
2. UPSC Mains 2016 (GS Paper II): Discuss the main features of the Government of India Act, 1935. How far did this Act influence the drafting of the Constitution of India? (15 marks)
Direction:
- Introduction: Briefly state GOI Act 1935 as a significant British constitutional enactment for India.
- Main Features: Provincial Autonomy, All-India Federation (unimplemented), Dyarchy at Centre, bicameralism, distribution of powers, federal court, office of Governor.
- Influence on Indian Constitution: Borrowings (federal structure, distribution of powers, emergency provisions, parliamentary system, office of Governor, judiciary framework), Continuity (practical administrative framework), Differences (popular sovereignty vs. external authority; justiciable FRs).
- Conclusion: Conclude that despite its repeal by Article 395, the GOI Act, 1935, served as a significant blueprint.
Trend Analysis (Last 10 years)
Prelims:
- Specific Acts Repealed: Always tests knowledge of which specific Acts were repealed and which one was explicitly not repealed.
- Purpose: Questions on the symbolic and legal significance of the repeal (transfer of sovereignty, establishment of republic).
- Part XXII: Knowing the part where Article 395 resides.
- The trend is strictly factual, requiring precise recall of the content of the article.
Mains:
- Symbolic and Legal Significance: Questions focus on the profound meaning of Article 395 in asserting India's sovereignty and constitutional supremacy.
- Historical Context: Often linked to the broader discussion of India's transition from colonial rule to independence.
- Interlinkages: Its role in establishing the new Constitution as supreme, and its influence on other constitutional features.
- The trend requires a conceptual understanding of the article's importance as a foundational provision.
Practice Questions
Original Prelims MCQs
1. Article 395 of the Constitution of India is part of:
- (a) Part XXI (Temporary, Transitional and Special Provisions)
- (b) Part XXII (Short Title, Commencement, Authoritative Text in Hindi and Repeals)
- (c) The Eleventh Schedule
- (d) The Twelfth Schedule
Answer: (b)
Explanation: Article 395 is the last article in Part XXII of the Constitution.
2. Which of the following statements correctly identifies the Acts repealed by Article 395 of the Indian Constitution?
- Indian Independence Act, 1947
- Government of India Act, 1919
- Government of India Act, 1935
- Abolition of Privy Council Jurisdiction Act, 1949
Select the correct code:
- (a) 1 and 3 only
- (b) 1, 2 and 3 only
- (c) 1, 3 and 4 only
- (d) 1, 2, 3 and 4
Answer: (a)
Explanation: The Indian Independence Act, 1947, and the Government of India Act, 1935 (along with its amendments) were repealed. The Government of India Act, 1919, was implicitly covered by the repeal of the 1935 Act which subsumed it, but specifically listed is 1935. The Abolition of Privy Council Jurisdiction Act, 1949, was not repealed.
Original Mains Questions
1. "Article 395 of the Indian Constitution serves as a succinct yet powerful declaration of India's complete transition from colonial rule to sovereign nationhood." Analyze the provisions of this article and explain its significance in establishing the legal bedrock of the Indian Republic. (15 marks)
Key Points/Structure:
- Introduction: Briefly introduce Article 395 as the concluding provision dealing with repeals.
- Provisions: Explicitly states the repeal of Indian Independence Act, 1947, and Government of India Act, 1935 (with amendments); Explicitly states the non-repeal of Abolition of Privy Council Jurisdiction Act, 1949.
- Significance in Establishing Legal Bedrock: Formal Assertion of Sovereignty, Legal Discontinuity, Basis for Self-Governance, Judicial Autonomy, Clarity and Certainty.
- Conclusion: Summarize Article 395 as a foundational provision.
2. Examine the relationship between Article 395 of the Indian Constitution and the continuity of laws and administrative structures from the British era. Discuss how the Constituent Assembly balanced the need for a break from colonial rule with the pragmatic requirement for administrative stability. (10 marks)
Key Points/Structure:
- Introduction: Briefly state Article 395's role in repealing colonial acts, symbolizing a break.
- Relationship to Continuity of Laws: Repeal of Key Acts (Article 395) vs. Continuity of Existing Laws (Article 372).
- Balancing Break and Stability: Break (Symbolic & Legal) through Article 395; Stability (Pragmatic Borrowings) from GOI Act, 1935, and continuity of civil services.
- Conclusion: Emphasize the delicate balance achieved by the Constituent Assembly.
The Enduring Legacy of Article 395
Article 395, though a short and often overlooked provision, is a powerful declaration of India's independence and its assertion of constitutional supremacy. By repealing the colonial legal framework, it formally inaugurated India as a sovereign democratic republic, governed solely by its own supreme law. It stands as a testament to the nation's journey from colonial subjugation to self-governance, ensuring that all legal and political authority flows directly from the Indian Constitution itself, rather than from any external power.