Part XXI: Temporary, Transitional and Special Provisions

Article 376: Provisions as to Judges of High Courts

Original Article:

(1) Notwithstanding anything in clause (2) of article 217, the Judges of a High Court in any Province holding office immediately before the commencement of this Constitution shall, unless they have elected otherwise, become on such commencement the Judges of the High Court in the corresponding State, and shall thereupon be entitled to such salaries and allowances and to such rights in respect of leave of absence and pension as are provided for under article 221 in respect of the Judges of such High Court. Any such Judge shall, notwithstanding that he is not a citizen of India, be eligible for appointment as Chief Justice of such High Court, or as Chief Justice or other Judge of any other High Court.

(2) The Judges of a High Court in any Indian State corresponding to any State specified in Part B of the First Schedule holding office immediately before the commencement of this Constitution shall, unless they have elected otherwise, become on such commencement the Judges of the High Court in the State so specified and shall, notwithstanding anything in clauses (1) and (2) of article 217 but subject to the proviso to clause (1) of that article, continue to hold office until the expiration of such period as the President may by order determine.

(3) In this article, the expression “Judge” does not include an acting Judge or an additional Judge.

Explanations:

This article ensures a smooth transition for Judges of High Courts, retaining their rights, entitlements, and positions unless they opt otherwise, thereby maintaining judicial stability during India’s constitutional transition.

Clause-by-Clause Explanation:

Clause (1): Continuity for Judges of Provincial High Courts

Judges of Provincial High Courts continue as Judges of corresponding High Courts, retaining salaries, allowances, and benefits under Article 221.

Clause (2): Judges of Part B States

Judges from princely states listed in Part B of the First Schedule transition to High Courts in newly formed states, with tenure determined by the President.

Clause (3): Exclusion of Acting Judges

The article applies only to permanent Judges, excluding acting or additional Judges from these provisions.

Historical Significance:

Article 376 highlights the framers’ foresight in ensuring continuity and preserving the institutional integrity of the judiciary during India’s transition to independence.

Real-life Examples:

Judges from pre-independence courts seamlessly transitioned to the Indian judicial system, such as Justice H.J. Kania becoming the first Chief Justice of the Supreme Court after serving in the Federal Court.