Article 373

Article 373 of the Constitution of India was a transitional and temporary provision designed to address issues related to preventive detention during the first year after the commencement of the Constitution. It empowered the President of India to make necessary orders regarding preventive detention in certain cases until Parliament enacted a law under the permanent provisions of Article 22(7) or for a maximum duration of one year from 26 January 1950, whichever was earlier.
This article represents an example of how the framers of the Constitution provided temporary executive powers to ensure continuity in governance and internal security during India’s early post-independence period, when preventive detention laws were yet to be fully established through parliamentary legislation.

Historical Background and Constitutional Context

Preventive detention—the power to detain individuals to prevent them from acting in a manner prejudicial to public order, national security, or essential supplies—was an established practice under colonial law. After independence, the Constituent Assembly recognised that such laws might be necessary for a limited period to maintain national stability during the transition to full democracy.
However, Parliament was not immediately in a position to enact comprehensive preventive detention laws under Article 22(7) of the Constitution. Hence, Article 373 was inserted to fill this temporary gap, empowering the President to make orders governing preventive detention until such laws were enacted.

Purpose and Scope of Article 373

The primary purpose of Article 373 was to empower the President to act temporarily as a legislative authority for preventive detention.
It stated:

“Until provision is made by Parliament under clause (7) of Article 22, or until the expiration of one year from the commencement of this Constitution, whichever is earlier, the President may by order make provision for the continuance of preventive detention for a period longer than three months under any law providing for preventive detention in force at the commencement of this Constitution.”

The scope of this article was strictly limited to:

• Situations where preventive detention exceeded three months; and
• Cases where such detention was permitted without reference to an Advisory Board (as mentioned in Article 22(4)(a) and 22(4)(b)).

Thus, Article 373 temporarily vested in the President the power to determine and regulate extended periods of preventive detention that would otherwise require parliamentary sanction.

Circumstances Covered by Article 373

The article operated within the framework of Article 22(4), which imposes limits on preventive detention:

1. Under Article 22(4)(a): No person can be detained for more than three months unless an Advisory Board, consisting of judges of a High Court, reports that there are sufficient grounds for detention.
2. Under Article 22(4)(b): Parliament may by law prescribe circumstances under which a person can be detained for a period longer than three months without reference to an Advisory Board.

Since no such law existed when the Constitution came into effect, Article 373 empowered the President to temporarily exercise this parliamentary function.

Nature and Effect of Presidential Orders

• Legal Status: Any order issued by the President under Article 373 had the same force and effect as a law made by Parliament. This granted the President a form of legislative authority limited to the context of preventive detention.
• Scope of Operation: The power extended only to the modification or continuation of existing preventive detention laws already in force at the commencement of the Constitution, such as the Preventive Detention Act, 1950, which was enacted shortly after independence.
• Non-justiciability: Given its transitional nature, the exercise of power under Article 373 was not subject to judicial review during its operation, as it was an emergency legislative measure embedded within the Constitution itself.
• Time Limit: The President’s authority under this article was valid only for one year from 26 January 1950 or until Parliament enacted relevant legislation, whichever occurred earlier.

Transitional and Temporary Nature

Article 373 was clearly intended as a transitional mechanism to maintain legal and administrative continuity in preventive detention matters during the first year of India’s constitutional operation.
It ceased to have effect once Parliament enacted comprehensive preventive detention laws or after 26 January 1951, whichever came first. Its purpose was fully served upon the enactment of the Preventive Detention Act, 1950, which came into force on February 26, 1950, less than a month after the Constitution’s commencement.

Legislative Development After Article 373

After Article 373 lapsed, Parliament enacted several preventive detention laws over the years under Article 22(7), ensuring continuity of such powers within a legislative framework. These include:

1. The Preventive Detention Act, 1950 – India’s first preventive detention law after independence (in force until 1969).
2. The Maintenance of Internal Security Act (MISA), 1971 – Used during the Emergency (1975–77).
3. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), 1974 – Still in force for specific economic offences.
4. The National Security Act (NSA), 1980 – Continues to empower the State to detain individuals for reasons of national security and public order.

Each of these laws draws its constitutional legitimacy from Article 22, rather than Article 373, which served only as a transitional provision.

Judicial Interpretation and Case Law

Due to its short duration and limited applicability, there are no major Supreme Court or High Court rulings directly interpreting Article 373.
However, courts have extensively interpreted the preventive detention framework under Article 22, which provides the broader constitutional context within which Article 373 operated.
Key judicial principles derived from later cases include:

• Preventive detention laws must conform to fundamental rights, particularly Article 21 (Right to Life and Personal Liberty) and Article 22 (Safeguards for Detained Persons).
• Judicial review remains available to assess procedural compliance and prevent misuse of preventive detention powers.

Relevant cases such as A.K. Gopalan v. State of Madras (1950) and ADM Jabalpur v. Shivkant Shukla (1976) dealt with preventive detention laws passed under Article 22, illustrating how constitutional safeguards evolved beyond the transitional scope of Article 373.

Relation to the Preventive Detention Framework

Article 373 was part of the transitional legal architecture created to support the implementation of Article 22, which provides constitutional legitimacy to preventive detention in India.
While Article 22(4)–(7) lays down the permanent legal framework for preventive detention, Article 373 acted as a temporary substitute until Parliament enacted its own law under Article 22(7).
Thus, Article 373 did not create an independent power of detention but rather delegated legislative competence to the President for a limited period.

Significance of Article 373

• Transitional Mechanism: Enabled continuity in preventive detention policy during the early days of constitutional governance.
• Legislative Efficiency: Allowed the executive to act swiftly on preventive detention matters without waiting for Parliament to pass a detailed statute.
• Constitutional Flexibility: Demonstrated the adaptability of the Indian Constitution to handle transitional legal and administrative challenges.
• Temporary Executive Authority: Gave the President limited legislative powers within a defined time frame and subject to constitutional safeguards.
• Historical Precedent: Set a model for transitional arrangements later used in other contexts, such as under Articles 372 and 372A.

Limitations

Despite its necessity, Article 373 was subject to certain inherent limitations:

• It was strictly time-bound (one year maximum).
• Its powers were confined to preventive detention and could not be extended to other legislative areas.
• It could not override fundamental rights protections under Part III of the Constitution.
• The President’s orders automatically lapsed once Parliament enacted a preventive detention law.