Part XXI: Temporary, Transitional and Special Provisions

Article 372: Continuance of Existing Laws

Original Article:

Article 372 ensures the continuance of laws in force before the commencement of the Constitution, subject to amendments, repeals, or adaptations by competent authorities. The complete clauses are as follows:

(1) All laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force until altered, repealed, or amended by a competent authority.

This ensures that no legal vacuum is created post-independence, allowing the country to function smoothly under existing laws until new legislation is enacted.

(2) The President may, by order, make adaptations and modifications to bring pre-existing laws into conformity with the Constitution. These adaptations cannot be challenged in any court.

This clause empowers the executive to align outdated laws with the principles of the new Constitution, ensuring a seamless transition to a democratic framework.

(3) The President’s power to adapt laws is limited to three years from the commencement of the Constitution, after which the authority lies with competent legislatures.

This time limit ensures that the legislative process takes precedence in the long term, respecting the principles of parliamentary democracy.

Explanations:

Article 372 provides for the transition from pre-independence laws to the framework established by the Indian Constitution. It allows for these laws to remain in effect until they are amended, repealed, or modified by appropriate authorities. This ensured governance continuity and avoided a legal vacuum during the transition to a Republic.

Clause-by-Clause Explanation:

Clause (1): Continuity of Existing Laws

This clause ensures that all laws in force within India immediately before the Constitution’s commencement remain valid until altered, repealed, or amended by a competent legislative or executive authority. This clause was instrumental in maintaining legal stability post-independence.

Clause (2): Presidential Adaptation and Modification

The President is empowered to modify or adapt existing laws to align them with the provisions of the Constitution. This adaptation may include repeals or amendments deemed necessary for the law’s conformity with constitutional provisions. These modifications are immune to judicial review during the specified time frame.

Clause (3): Time Limitation on Presidential Powers

This clause imposes a restriction on the President’s power to adapt laws, limiting it to three years from the Constitution’s commencement. This duration was originally set at two years but extended through the First Amendment to provide additional time for legal alignment.

Legislative History:

Article 372 was enacted to manage the transition from colonial rule to the Republic of India, ensuring legal stability while new laws were formulated. It draws its roots from transitional provisions in other constitutions, tailored to suit India’s unique needs post-independence.

Historical Significance:

The article was crucial for maintaining governance and legal order during India’s transition to a Republic, enabling the country to function seamlessly post-independence. It reflects the pragmatic approach of the Constitution-makers to ensure continuity amidst change.

Real-life Examples:

British-era laws like the Indian Penal Code, 1860, and the Indian Contract Act, 1872, continued to be applicable under Article 372, ensuring legal continuity. These laws were subsequently amended by Parliament to align with India’s constitutional values.

Debates and Deliberations:

The Constituent Assembly debated the importance of retaining pre-existing laws to avoid administrative and legal vacuum post-independence. Members highlighted the need for a seamless transition while ensuring these laws were progressively aligned with the Constitution.