British Prime Minister, Clement Attlee of the Labour Party announced on 20 February, 1947 that British government would grant full independence to British India by June 1948. Lord Wavell was replaced by Lord Mountbatten as the Viceroy of India. British government accepted the partition plan, known as 3rd June Plan and decided to transfer the powers to two independent dominions earlier than June 1948. The 3rd June Plan had to be given a legal shape i.e. it had to be approved by British Parliament.
On 18th of July 1947, the Indian Independence Act of 1947 was passed by the British Parliament which, giving legal shape to the 3rd June Plan, brought into existence two independent dominions, i.e. India and Pakistan w.e.f. 15th of August, 1947. The Act also provided that both the dominions shall have the power to make laws for their respective territories and no law of the dominion shall be void on the ground that it is repugnant to the Act enacted by British parliament.
The provisions of section 8 of the India Independence Act, 1947 provided that till the two dominions were able to make their own constitution, the Government of India Act, be adopted as a working constitution.
On 14th of August, 1947, the Pakistan (Provisional Constitution Order, 1947) and (Adaptation of Existing Pakistan Laws) Order, 1947 were promulgated. It, inter alia, defined existing Pakistani Law as an Act, Ordinances, Regulations, Rules and Orders, Bye-Laws and by virtue of section 3 thereof, all existing laws were adopted, subject to specified amendments made by the above Order. The Adaptation Order of 1947 was supplemented by the Adaptation of Central Acts and Ordinances Order 1949 (Governor General Order No. 4). This is how the laws framed by the British Parliament became part of our corpus juris.
Under the provisions of the India Independence Act, 1947 the constituent assembly of Pakistan has two primary functions: to make the constitution and to work as a central legislature until the new constitution is adopted. Thus it stepped into the shoes of Federal Legislature established under the Government of India Act, 1935. The constituent assembly of Pakistan was originally comprised of 69 members, however its strength reached to 75 after Baluchistan, the tribal areas and the princely states of Bahawalpur, Khairpur were given representation after accession.
The inaugural session of the constituent assembly of Pakistan was held on 10-14 August, 1947 in Karachi. J.N. Mandal was unanimously elected as temporary president for the first day. On 11th August, Quaid-e-Azam Muhammad Ali Jinnah was elected unopposed as the president of the constituent assembly of Pakistan.
The course taken by Pakistan’s leadership after independence was the result of poor planning and little conceptualization. Jinnah devoted all of his constitutionalist abilities and spent his life fighting for a sovereign Muslim state where Muslims might live in political, constitutional, religious, and economic freedom. However, neither Jinnah nor anybody in his immediate group felt compelled to write down the plan for the state they wished to establish. The beginning of the state, its function, nature, and structure were all determined by words and slogans rather than reality.
In his guideline speech to the constituent assembly on 11th August, 1947 Quaid-e-Azam M. Ali Jinnah said:
“You are free; you are free to go to your temples, you are free to go to your mosques or to any other place of worship in this state of Pakistan. You may belong to any religion, or caste or creed—that has nothing to do with the business of the state….we are all citizens and equal citizens of one state…. and you will find that in the course of time Hindus will cease to be Hindus and Muslims will cease to be Muslims, not in the religious sense because that is the personal faith of each individual, but in the political sense as citizens of the state.”
How could Muslims cease to be Muslims and Hindus cease to be Hindus in the political sense when the religions to which they belonged, according to Jinnah’s own previous addresses, were so different? If Muslims were going, in political sense, to cease to be Muslims why was India divided on the basis of Islamic Ideology? Maulana Maududi, leader of Jamaat-e-Islami, argued:
We have been endlessly struggling for getting the fact recognized that we are a separate nation by virtue of our adherence to Islam….If, now, we fail to achieve that real and ultimate objective of making Islam a practical, social, political and constitutional reality….our entire struggle and all our sacrifices become futile and meaningless.”
He put forward the following four demands on which the constitution had to be based:
(i). Sovereignty belongs to Allah to be exercised by the State as His agent;
(ii). Sharia shall be the basic law of the land;
(iii). No law contrary to Sharia shall be enacted and the existing laws which are contradictory to it shall be repealed;
(iv). State, in the exercise of its powers, shall have no authority to transgress the limits imposed by Islam.
Objectives Resolution__ adopted by the Constituent Assembly
Within six months of Jinnah’s death the Constituent Assembly of Pakistan passed a resolution on the ‘Aims and Objects of the Constitution’ on 12th March 1949, popularly known as Objectives Resolutions.
Liaquat Ali Khan then PM who moved the resolution on March 7, 1949 in the constituent assembly introduced it as “embodying the main principles on which the Constitution of Pakistan is to be based.” In the same address before the assembly he said “I consider this to be the most important occasion in the life of this country, next in the importance only to the achievement of independence, because by achieving independence we only won an opportunity of building up a country and its polity in accordance with our ideals.” He further said that “we, the people of Pakistan, have the courage to believe firmly that all authority should be exercised in accordance with the standards laid down in Islam so that it may not be misused.”
Limits prescribed by Him?
Chandra Chattopadyaya, a member of Pakistan National Congress in the Constituent Assembly, said that so long as we had an idea that the constitution would be based on principles of equality, democracy and social justice. We thought that religion and constitution would not be mixed up as declared by Muhammad Ali Jinnah on the floor of this house. Criticizing the objectives resolution he asked that “what are the limits prescribed by Him within which the state is to exercise the authority, who will interpret them? ….One day a Louis XIV may come and say “I am the state, appointed by the Almighty.”
Recipient of Allah’s authority
The Objectives Resolution of 1949 had talked of Allah Almighty having delegated His authority to the state. Professor Raj Kumar Chakravarty, a member of the Pakistan National Congress party which was largely based in East Pakistan, suggested that the delegate of God’s authority should be the people and not the state. He argued that “First come people and then the state… a state is formed by the people, guided by the people and controlled by the people.” The professor took exception to the text of the Objectives Resolution as it meant that “once a state comes into existence it becomes all-in-all; it is supreme, quite supreme over the people…” He argued that the state had to be responsive to the public opinion and to the public demand but the resolution implied that the state need not meet these criteria.
The resolution was rejected by only one Muslim member of the House, Mian Muhammad Iftikharuddin. To him, the resolution was ambiguous, and many of the phrases employed in it had no meaning. He went on to say that such a resolution should not be only the work of Muslim League members in the assembly. It was supposed to be the voice of Pakistan’s seventy million citizens.
Dr. Qureshi an academic form from East Bengal, defending the resolution vis-à-vis the concerns raised, gave an unusual definition of “secular,” claiming that everything that is not theocratic is secular. Dr. Qureshi echoed the Prime Minister’s position, claiming that because Islam does not allow for organised clergy, the democracy envisioned by this resolution is secular by definition.
Maulana Shabbir Ahmad Osmani, a religious scholar from East Bengal, also stated his support for the Resolution, saying that Islam has never accepted view that religion is a private matter between man and his creator and as such has no bearing upon the social or political relations of human beings. He further said that determining what kind of state Pakistan would be required defining its relationship with the Lord of the Universe….He also assured that protection of minorities was a duty imposed upon Muslims by God.
After five days of debate the resolution was adopted by the assembly on March 12, 1949. None of the seventeen amendments proposed by the non-Muslims was accepted by the Constituent Assembly.
Give your valuable feedback about this post in the comment section below, please.