Article 392

Article 392 of the Constitution of India was a transitional and enabling provision that empowered the President to address any practical or administrative difficulties that might arise during the initial implementation of the Constitution. It was designed to ensure a smooth and uninterrupted transition from the colonial governance system under the Government of India Act, 1935, to the new constitutional order that commenced on 26 January 1950.

Background and Purpose

The Constitution of India, being an elaborate and comprehensive document, marked a fundamental shift in the political and administrative structure of the nation. Implementing such a vast framework across a newly independent country posed numerous practical challenges.
Recognising the potential for administrative and legal obstacles during this transitional phase, the framers of the Constitution incorporated Article 392 as part of the transitional and temporary provisions (Part XXI). The Article vested the President with temporary authority to make necessary orders to remove difficulties that might arise in giving effect to the Constitution.
The primary objective was not to alter constitutional principles but to facilitate their effective application in the early years of the Republic.

Powers Granted to the President

Under Article 392(1), the President of India was empowered to issue such orders as he deemed necessary or expedient to remove any difficulty in implementing the provisions of the Constitution.
The powers conferred included:

• The authority to modify, adapt, or make incidental or consequential changes to constitutional provisions to remove practical difficulties;
• The ability to issue supplementary or clarifying orders to ensure that institutions and laws could function effectively under the new constitutional framework;
• The discretion to take immediate measures where the transition from colonial to constitutional governance created unforeseen gaps.

However, this authority was not absolute and was subject to constitutional limitations and parliamentary oversight.

Nature and Scope of the Power

The power conferred by Article 392 was legislative in character, but its scope was strictly limited to transitional purposes. It was not a power to amend the Constitution, but rather to facilitate its implementation by removing practical obstacles.
The framers intended it as a temporary administrative instrument to bridge the gap between the theoretical provisions of the Constitution and their practical execution.
Key features of this power included:

• Temporal limitation – it was exercisable only until the first meeting of Parliament under the Constitution;
• Specificity of purpose – applicable only to difficulties in implementing the Constitution, not to policy or substantive constitutional changes;
• Judicial and parliamentary oversight – every order issued under Article 392 had to be laid before Parliament, ensuring transparency and accountability.

Time Limit for the Exercise of Power

The authority under Article 392 was temporary. It could be exercised only up to the date of the first meeting of Parliament constituted under the new Constitution.
Once the first Lok Sabha convened following the general elections of 1951–52, the President’s power under this Article automatically lapsed. This limitation ensured that the transitional executive authority did not override or diminish the sovereignty of the democratically elected Parliament.

Procedure and Parliamentary Oversight

Every order issued by the President under Article 392(1) had to be laid before Parliament. This requirement provided for legislative scrutiny, allowing Parliament to oversee the President’s exercise of power during the transitional phase.
This mechanism ensured that the President’s orders remained within the intended scope — administrative and facilitative rather than legislative in the broader sense.

Judicial Interpretation

Though the President’s powers under Article 392 were transitional, they have been discussed in several judicial pronouncements, which helped define their nature and scope.

• A.K. Roy v. Union of India (1982): The Supreme Court clarified that the “removal of difficulties” power cannot be interpreted as a licence to make substantive amendments. The power is confined strictly to overcoming practical implementation challenges.
• Sampat Prakash v. State of Jammu & Kashmir (1969): The Court reiterated that such powers are transitional and cannot be used indefinitely beyond the intended period.
• Keshavan Madhava Menon v. State of Bombay (1951): In discussing the transition from pre-Constitution to post-Constitution laws, the Court acknowledged the necessity of transitional powers like those under Article 392 to ensure smooth governance.

These decisions collectively emphasise that Article 392 was procedural and temporary, not a vehicle for permanent constitutional alteration.

Comparison with Similar Constitutional and Statutory Provisions

The “removal of difficulties” clause found in Article 392 has inspired similar provisions in later constitutional and statutory contexts, where transitional or complex administrative measures were required.
Comparable clauses include:

• Article 372A: Enabling adaptation of laws after the reorganisation of states;
• Article 395: Repeal of the Government of India Act, 1935, and transitional legal arrangements;
• Various Acts of Parliament, such as those relating to state reorganisation, financial administration, and central laws, include similar “removal of difficulties” provisions to address initial implementation challenges.

These provisions collectively reflect a pragmatic approach to governance, ensuring administrative flexibility during major transitions.

Historical Usage

In the years immediately following the commencement of the Constitution, the President of India issued several orders under Article 392 to resolve practical difficulties. These orders dealt with subjects such as:

• The functioning of High Courts and the Supreme Court during the transition;
• The continuity of civil services under the new constitutional framework;
• Legislative procedures and rules of business for Parliament and state legislatures;
• Implementation of provisions relating to Union–State relations.

These measures ensured that the administrative machinery of the Republic began operating smoothly from the very day of constitutional commencement.

End of the Power

The President’s authority under Article 392 ceased automatically after the first meeting of Parliament, held in 1952, following the general elections. From that point onwards, any legislative or constitutional modification could only be made by Parliament through proper legislative or amendment procedures under Article 368.
Thus, Article 392 fulfilled its purpose as a temporary instrument of transition, ensuring that no administrative or constitutional obstacle hindered the effective operation of the new Republic.

Key Features of Article 392

• Transitional in nature: Aimed solely at facilitating the initial implementation of the Constitution.
• Limited authority: Power confined to removing difficulties, not to altering constitutional substance.
• Temporary operation: Effective only until the first meeting of the newly constituted Parliament.
• Parliamentary oversight: Orders issued under this provision required presentation before Parliament.
• Judicial clarity: Courts restricted its interpretation to administrative, not legislative, purposes.

Significance and Constitutional Legacy

Article 392 exemplified the pragmatic foresight of the framers of the Constitution, who recognised the need for flexibility during the transition from colonial rule to constitutional democracy. By empowering the President to address unforeseen administrative or procedural difficulties, it prevented legal paralysis during the Constitution’s early implementation phase.