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Article 372 of the Indian Constitution: Continuance in force of existing laws and their adaptation

Part: XIX
Shorthand Notes: Existing Laws Continue, President Adapts

Article 372 of the Indian Constitution is a crucial transitional provision that ensured legal continuity after India adopted its Constitution in 1950. It addressed the complex issue of existing laws (those in force before the Constitution) and their applicability in the newly formed Republic. The article aimed to prevent a legal vacuum and provide a mechanism for adapting pre-existing laws to align with the constitutional framework.

Original Text

  1. Continuance in force of existing laws and their adaptation.—

(1) Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in force immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.

(2) For the purposes of bringing the provisions of any law in force in India or in any part thereof, immediately before the commencement of this Constitution, into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law.

(3) Nothing in clause (2) shall be deemed—

(a) to empower the President to make any adaptation or modification of any law after the expiration of three years from the commencement of this Constitution; or

(b) to prevent any competent Legislature or other competent authority from altering, repealing or amending any law adapted or modified by the President under the said clause.

Explanation I.—The expression “law in force” in this article shall include a law passed or made by a Legislature or other competent authority in India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas.

Explanation II.—Any law passed or made by a Legislature or other competent authority in India which immediately before the commencement of this Constitution was extra-territorial in its operation in relation to India shall, subject to any such adaptations and modifications as may be made therein under clause (2), continue to have such extra-territorial operation.

Detailed Explanation

Article 372 serves two primary functions:

  1. Continuance of Existing Laws: Clause (1) states that all laws in force immediately before the commencement of the Constitution would continue to be in force until altered, repealed, or amended by a competent legislature or authority. This ensured a smooth transition and avoided a legal void. Despite the repeal of the Government of India Act, 1935 and the Indian Independence Act, 1947 by Article 395, the laws made under these acts would remain valid.

  2. Presidential Power of Adaptation: Clause (2) empowered the President to make necessary adaptations and modifications to existing laws to bring them into conformity with the provisions of the Constitution. This power included repeal or amendment. Any adaptation or modification made by the President could not be challenged in any court.

  3. Time Limit and Legislative Override: Clause (3) placed a time limit of three years from the commencement of the Constitution on the President’s power of adaptation. It also clarified that the President’s adaptations did not prevent competent legislatures or authorities from further altering, repealing, or amending the adapted laws.

  4. Explanation I: Clarifies that “law in force” includes laws passed by a competent authority, even if not fully operational before the Constitution.

  5. Explanation II: Addresses laws with extra-territorial operation, allowing them to continue with such operation, subject to presidential adaptations.

Detailed Notes

  • Ensuring Legal Continuity:

    • The primary objective of Article 372 was to maintain legal continuity immediately after the Constitution came into effect.
    • Without this provision, a legal vacuum would have arisen, disrupting governance and societal order.

  • Scope of “Law in Force”:

    • The term “law in force” is comprehensive, encompassing acts, ordinances, orders, rules, regulations, and bye-laws.
    • Explanation I clarifies that laws passed before the Constitution’s commencement are included, even if not fully operational.

  • President’s Power of Adaptation:

    • Clause (2) granted the President significant powers to modify existing laws to align with the Constitution.
    • This power was crucial for adapting laws framed under a different constitutional philosophy to the new constitutional order.
    • Presidential adaptations were not subject to judicial review, providing finality and certainty.

  • Limitations on Presidential Power:

    • Clause (3)(a) imposed a three-year time limit on the President’s adaptation powers. This aimed to ensure that legislative bodies would eventually assume full responsibility for law reform.
    • Clause (3)(b) clarified that the President’s adaptations were not binding on future legislative action. Competent legislatures could alter, repeal, or amend the adapted laws.

  • Extra-Territorial Laws:

    • Explanation II specifically deals with laws having extra-territorial operation.
    • These laws were allowed to continue operating as before, subject to presidential adaptation.
    • This provision acknowledged the existing legal framework regarding matters extending beyond India’s geographical boundaries.

  • Relationship with Article 395:

    • While Article 395 repealed the Government of India Act, 1935, and the Indian Independence Act, 1947, Article 372 ensured that laws made under those repealed acts would continue in force, subject to constitutional provisions and adaptation.

  • Role of Legislature:

    • Article 372 envisioned a transition where existing laws would gradually be reviewed and replaced or amended by the appropriate legislatures.
    • The President’s adaptation power was intended to be a temporary measure to facilitate this transition.

  • Judicial Interpretation:

    • Courts have interpreted “law in force” broadly to include various forms of legislation and subordinate legislation.
    • The courts have also upheld the validity of presidential adaptations made under Article 372.

Additional Comments

  • The President’s power under Article 372(2) was analogous to the power of the Governor-General under Section 293 of the Government of India Act, 1935, but it was adapted to the context of the new Constitution.
  • The three-year limit on the President’s power ensured that Parliament and State Legislatures would take over the task of reviewing and adapting laws.
  • This article played a vital role in ensuring the successful implementation of the Indian Constitution.

Summary

Article 372 maintained legal continuity post-independence by ensuring pre-existing laws remained in effect until legislative action. It empowered the President to modify these laws to align with the Constitution within a three-year period, subject to later legislative changes. The article addressed both laws operating within India and those with extraterritorial reach, contributing to a stable transition.
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