Continuance in force of existing laws and their adaptation

Article 307, Draft Constitution of India 1948

(1) Subject to the other provisions of this Constitution, all the law 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of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.

(2) The President may, by Order, provide that, as from such date as may be specified in the Order, any law in force in the territory of India or in any part of such territory shall, until repealed or amended by a competent Legislature or other competent authority, have effect subject to such adaptations and modifications, whether by way of repeal or amendment, as appear to him to be necessary or expedient for bringing the provisions of that law into accord with the provisions of this Constitution and any such adaptation or modification shall not be questioned in any court of law.

Explanation I.-The expression “law in force” in this article shall include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas.

Explanation II.-Any law passed or made by a Legislature or other competent authority in the territory of India which immediately before the commencement of this Constitution has extra territorial effect as well as effect in the territory of India shall, subject to any such adaptations and modifications as aforesaid, continue to have extra-territorial effect.

Explanation III.-Nothing in this article shall be construed as continuing any temporary Act in force beyond the date fixed for its expiration.

Article 372, Constitution of India 1950

(1) Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law 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of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.

⁠(2) For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law.

⁠(3) Nothing in clause (2) shall be deemed—

(a) to empower the President to make any adaptation or modification of any law after the expiration of two years from the commencement of this Constitution; or

(b) to prevent any competent Legislature or other competent authorityTemporary provisions with respect to States in Part B of the First Schedule.

Explanation I.—The expression “law in force” in this article shall include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas.

Explanation II.—Any law passed or made by a Legislature or other competent authority in the territory of India which immediately before the commencement of this Constitution had extra-territorial effect as well as effect in the territory of India shall, subject to any such adaptations and modifications as aforesaid, continue to have such extra-territorial effect.

Explanation III.—Nothing in this article shall be construed as continuing any temporary law in force beyond the date fixed for its expiration or the date on which it would have expired if this Constitution had not come into force.

Explanation IV.—An Ordinance promulgated by the Governor of a Province under section 88 of the Government of India Act, 1935, and in force immediately before the commencement of this Constitution shall, unless withdrawn by the Governor of the corresponding State earlier, cease to operate at the expiration of six weeks from the first meeting after such commencement of the Legislative Assembly of that State functioning under clause (1) of article 382, and nothing in this article shall be construed as continuing any such Ordinance in force beyond the said period.

Draft Article 307 (Article 372 of the Constitution of India 1950) was discussed in the Constituent Assembly on 10 October 1949. It stated that once the new Constitution was enacted, laws that existed before the enactment would continue to operate. Further, the President can modify these laws to make them consistent with the Constitution – such modification cannot be questioned in Court. The validity of the laws and the President’s power to modify them would lapse when Parliament takes up these laws and decides to either keep, modify or repeal them.
A Drafting Committee member moved an amendment that rephrased the Draft Article to clearly signal that the President could modify laws only to make them consistent with the Constitution and for no other purpose. Further, such modification could be overruled by Parliament. The Member also wanted to limit the President’s power in this regard to a period of 2 years after the Constitution came into force. This member laid out the motivations behind the Draft Article: Parliament on its own would take a long time to review all existing laws and decide what to do with them.

A group of members pointed out that the President’s power to modify laws would effectively be exercised by the executive; One member was concerned about this expansion in executive power. They proposed that the judiciary, an independent Committee of Experts and Parliament should be involved in the process of identifying and modifying laws.
A Drafting Committee Member came to the defense of the Draft Article. He asserted that subjecting each previous act or rule to the scrutiny of the court may bring up frivolous objections. Moreover, the modification of existing laws had to be done quickly. He reassured the members that the President would take the help of expert bodies and committees to check on the consistency of these laws with the Constitution. Further, the changes brought by the President were not immutable – these could be overruled by the legislature.

All amendments except one were negatived by the Assembly. Draft Article 307 as amended by the Drafting Committee Member was added to the Constitution on 10 October 1949.

These members proposed that other institutions be involved in the process like the judiciary, an independent committee and parliament.

While one Member wanted the judiciary to advise the Executie, another wasbe involved, other suggested an independent Committee of experts, and one member wanted Parliament to ratify any changes.

The Draft Article allowed for the continuation of all those laws in the Indian territory which were already operational in it before the Constitution came into force, unless these laws were altered, repealed or amended by Parliament or any other appropriate Legislature. It also gave the President the power to issue an order, adapting, modifying, amending or repealing the existing laws to bring them in accordance with the provisions of the Constitution. Further, these changes could not be questioned in any court of law.

A Drafting Committee Member opened the discussion on the Draft Article. He moved an amendment clarifying that the power of the President to adapt or modify the existing laws was solely for the purpose of bringing these laws in conformity with constitutional provisions. A change in existing laws by the President for any other purpose could be questioned by the court. He also made it clear that the powers of the President were subject to the authority of the Parliament and any other competent legislature.

The Member also sought to limit the President’s power in this regard to a period of 2 years after the Constitution came into force. He reasoned that the Draft Article was necessary as the Parliament or State legislatures would not have enough time during the initial period of independence to pay attention to what laws need amendment. Another Member agreed and added that numerous difficulties would arise in the initial period of transition in the country – it was important in such a time that the President be given enough powers to bring laws in accordance with the new Constitution.

A few Members warned that the President’s power to adapt or modify laws would ultimately be exercised by the executive’s office, such as the Minister of Law or their Secretary and clerks.

They feared the executive’s expanding powers and were against the court having no say in the President’s actions. They felt that some level of judicial oversight was needed to ensure that no mistakes were made in relation to the adaptation or modification of existing laws. As an alternative, one Member suggested setting up a Committee of Experts to check the consistency of the existing laws, specifically the Fundamental Rights, with the provisions of the existing Constitution. One Member insisted that the changes brought by the President must be ratified by the Parliament because any change made by the President during an emergency or when the Parliament is not in session must be brought to the attention of the members of Parliament.