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How laws of British India are in force in independent India?

India is a sovereign country. It has supreme and unrestricted power to make law within the territory of India. India attained its sovereignty when it became independent. Now a question arises as to what about the effect of those laws in independent India which were passed by the His Majesty in Council prior to independence of India? To understand this it is important to know that to abolish the jurisdiction of His Majesty in Council in respect of Indian appeals and petitions and to confer a corresponding jurisdiction on the Federal Court of India; the Abolition of Privy Council Jurisdiction Act, 1949 (5 of 1949) was passed. This Act passed on 24/09/1949 by the Constituent Assembly came into effect from the appointed day (10/10/1949). Section 8 of this Act deals with the effect of order of His Majesty in Council made on an Indian appeal or petition whether before, on, or after the appointed day, not only as an order of His Majesty in Council, but also as if it were an order or decree made by the Federal Court of India. Section 10 of this Act further deals with modification of existing Laws in India. The provisions of any law in force on the appointed day relating to Indian appeals and petitions shall as from that day have effect as if in the said provisions for all references to His Majesty in Council, there had been substituted references to the Federal Court of India. The Federal Court of India which was created by the Government of India Act, 1935 is predecessor of the Supreme Court of India which came into being on 28/01/1950.

In view of the above all the Acts those were passed in India before independence shall continue to apply in independent India unless these are repealed, omitted or modified by the Governments of independent India. Not only the Acts but even their interpretation by various Courts of then competent jurisdictions shall continue to hold good unless different interpretations by subsequent Courts of competent jurisdictions have over ruled them. Some of such laws which continue to apply in independent India are the Indian Penal Code, 1860, the Indian Contract Act, 1872, the General Clauses Act, 1897 whereas some laws have seized to apply after they were repealed such as the Indian Income tax Act, 1922 is repealed by the Income tax Act, 1961. Please note that when His Majesty in Council passed any law in India the word “Indian” was added to the name of the Act which is not followed when the same or similar law is passed by the Government of India. This is because the British has political control over vast numbers of countries and to distinguish between similar laws of such countries the name of such countries are added for administrative convenience which is not required when the law is passed by the Government of India.

Here comes an interesting academic question. At the event of independence the British India was partitioned to India and Pakistan and subsequently Bangladesh was formed out of Pakistan. Now whereas the Indian Penal Code, 1860, the Indian Contract Act, 1872, continue to apply in independent India what about the legal status of such laws in Pakistan or in Bangladesh? Have they made similar law afresh or continued to apply such law with the word “Indian” in it? Both the countries have just replaced the word “Indian” with ‘Pakistan’, or ‘Bangladesh’, wherever necessary as applicable to them and while doing so have stated something similar to “whereas it is expedient to define and amend certain parts of law relating to … It is enacted as follows”. Now Pakistan which came into existence on 14th August, 1947 but has a law named the Pakistan Penal Code, 1860 similarly in Bangladesh it is known as Penal Code, 1860 for Bangladesh.

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