Article 372

Article 372 of the Constitution of India ensures legal continuity by providing that all laws in force before the commencement of the Constitution shall continue to remain in operation until they are altered, repealed, or amended by a competent authority. It was an essential transitional provision that facilitated a smooth shift from the colonial legal system under British rule to the democratic constitutional framework established in 1950.
This article, located in Part XXI (Temporary, Transitional and Special Provisions), was instrumental in maintaining governance, preventing a legal vacuum, and allowing a gradual adaptation of pre-constitutional laws to align with the new constitutional order.

Background and Objective

Before the Constitution came into force on 26 January 1950, India was governed under various colonial statutes, primarily the Government of India Act, 1935. With independence and the adoption of a new Constitution, the framers recognised the practical difficulty of replacing all existing laws overnight.
The objective of Article 372 was therefore twofold:

1. To maintain the continuity of existing legal and administrative systems; and
2. To provide a mechanism for adapting or modifying pre-existing laws to bring them into conformity with the Constitution.

By doing so, the provision ensured that the rule of law continued seamlessly despite the fundamental political transformation from a colonial government to a sovereign republic.

Clause (1): Continuation of Existing Laws

“All the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.”

This clause guarantees that laws existing prior to 26 January 1950 remain operative after the Constitution’s commencement unless they are:

• Inconsistent with the Constitution, or
• Modified, repealed, or replaced by a competent authority (Parliament or State Legislature).

Key features:

• It covers all pre-existing laws, including Acts of Parliament, regulations, bye-laws, and customary laws.
• The phrase “competent authority” refers to the legislative or executive authority empowered under the Constitution to make or amend such laws.
• Laws inconsistent with fundamental rights (Part III) automatically became void to the extent of the inconsistency under Article 13(1).

This ensured that while continuity was maintained, the Constitution remained supreme, and no colonial or pre-constitutional law could override its provisions.

Clause (2): President’s Power to Adapt and Modify Laws

Clause (2) authorises the President of India to make adaptations and modifications to existing laws to ensure their compatibility with the new constitutional framework.
The President’s powers under this clause include:

• Removing or altering references to pre-independence authorities such as the Governor-General, Crown, or Secretary of State for India;
• Modifying administrative structures to align with the new Union and State framework;
• Amending outdated procedural or institutional references to ensure legal clarity.

The modifications made by the President were published through Adaptation of Laws Orders. The first such order, the Adaptation of Laws Order, 1950, was issued immediately after the Constitution’s commencement.
Importantly, the President’s adaptations were considered executive acts under constitutional authority and were not subject to judicial review, ensuring quick and efficient legal adjustment.

Clause (3): Limitations on the President’s Power

While the President’s powers under clause (2) were wide, they were subject to time and scope limitations to preserve the supremacy of the legislative process.
The key limitations are:

1. The power to adapt and modify laws expired three years after the Constitution’s commencement (i.e., on 25 January 1953).
2. Any modification or adaptation made by the President could subsequently be altered, amended, or repealed by a competent Legislature or other authority empowered under the Constitution.

This ensured that the President’s role remained transitional, with long-term control over legislation reverting to the democratic institutions of the Republic.

Explanations under Article 372

To clarify the scope of “law in force” and its application, Article 372 includes several explanations:
Explanation I: The expression “law in force” includes laws passed or made before the Constitution’s commencement, whether or not they were in actual operation at that time.This provision ensured that dormant or unimplemented laws did not lapse automatically.
Explanation II: Laws that had extra-territorial operation before the Constitution continue to have such effect, subject to adaptation or repeal. This recognised India’s continuing obligations and administrative reach under international or colonial-era arrangements.
Explanation III: Temporary laws, by their nature, expire upon reaching their specified duration and do not continue automatically under Article 372.
Explanation IV: Ordinances issued under the Government of India Act, 1935, ceased to operate six weeks after the first meeting of the relevant Legislative Assembly post the Constitution’s commencement. This ensured that emergency or interim legislation did not extend indefinitely.

Adaptation of Laws Orders

To operationalise Article 372, the President issued several Adaptation of Laws Orders, including:

• Adaptation of Laws Order, 1950,
• Adaptation of Laws (No. 2) Order, 1950, and
• Adaptation of Laws (Third Amendment) Order, 1951.

These orders:

• Replaced colonial references (e.g., “Governor-General” with “President,” “India” with “Union of India”);
• Harmonised pre-independence laws with the new federal division of powers under the Seventh Schedule; and
• Aligned judicial terminology and administrative institutions with the new constitutional structure.

Through these adaptations, India successfully transformed thousands of colonial statutes into laws consistent with a republican and democratic framework.

Judicial Interpretation and Key Case Law

Over time, the judiciary has clarified and reinforced the purpose and operation of Article 372 through several landmark judgments:

• State of West Bengal v. Union of India (1963): The Supreme Court upheld the continuity of laws under Article 372 and observed that pre-constitutional laws remain valid until repealed or modified by a competent Legislature.
• Kesavananda Bharati v. State of Kerala (1973): While focusing on the amending power of Parliament, the Court reaffirmed that all existing laws must conform to the basic structure of the Constitution and cannot contravene its fundamental principles.
• Minerva Mills Ltd. v. Union of India (1980): The Court reiterated that constitutional supremacy governs the validity of all laws, including those continued under Article 372.
• Deep Chand v. State of Uttar Pradesh (1959): The Court clarified that pre-Constitution laws inconsistent with fundamental rights are void only to the extent of the inconsistency, not in their entirety.

These rulings collectively established that Article 372 ensures continuity without compromising constitutional supremacy.

Significance and Practical Implications

1. Legal Continuity and Stability: Article 372 prevented a legal vacuum by ensuring that the transition to the Republic did not disrupt governance, administration, or the justice system.
2. Constitutional Supremacy: While preserving old laws, the article subjects them to the Constitution, ensuring that fundamental rights, directive principles, and the basic structure prevail over any pre-existing statute.
3. Executive Flexibility: The President’s power to adapt laws provided an efficient mechanism for immediate constitutional compliance without waiting for legislative amendments.
4. Legislative Supremacy Restored: By limiting the President’s powers to three years, Article 372 reaffirmed the primacy of Parliament and State Legislatures in shaping India’s legal system.
5. Foundation for Legal Reform: The provision laid the groundwork for modernising India’s legal framework, enabling gradual repeal or amendment of outdated colonial statutes.

Limitations and Safeguards

• The President’s power under clause (2) was transitional and time-bound, preventing indefinite executive modification.
• All adapted laws remained subject to judicial scrutiny for consistency with the Constitution.
• Legislatures retained full authority to alter or repeal any continued law.
• Temporary and emergency ordinances were automatically curtailed to ensure democratic accountability.

Related Constitutional Provisions

• Article 13(1): Declares that pre-Constitution laws inconsistent with fundamental rights are void to the extent of the inconsistency.
• Article 367: Provides general rules for constitutional interpretation, including definitions of legal terms.
• Article 395: Formally repeals earlier constitutional enactments such as the Government of India Act, 1935, and the Indian Independence Act, 1947.

Together, these provisions created a coherent legal bridge between the colonial and constitutional eras.