The Position of Pre-Independence Laws Under the Constitution

That is wider than it looks. A statute that had been enacted but not brought into force in a particular area is still law in force for this purpose, and continues.

Explanation II preserves the extra territorial effect of any such law that had it.

Explanation III is the limit: nothing in the article continues any temporary law beyond the date fixed for its expiration, or beyond the date on which it would have expired had the Constitution not come into force. So a wartime enactment with a stated life did not gain a new one on 26 January 1950.

Explanation IV dealt with an Ordinance promulgated by a Provincial Governor under section 88 of the Government of India Act 1935, which was to cease at the expiration of six weeks from the first meeting of the corresponding State's Legislative Assembly.

The adaptation power

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

Clause (3). The President could not make an adaptation after the expiration of three years from the commencement, that period having been substituted for two years by the First Amendment in 1951; and nothing in clause (2) prevents a competent Legislature or authority from repealing or amending a law adapted by the President.

The power was exercised by the Adaptation of Laws Order 1950, made on 26 January 1950 and amended several times, and it is the reason that pre-constitutional statutes read as they do today: references to the Governor General became references to the Central Government, references to His Majesty were removed, and provincial references became State references.

Two points for an examiner.

It is a legislative power in the President. It permitted repeal and amendment of statutes by executive order, which is a striking thing for a Constitution to confer, and it is confined by being a power of adaptation: to bring a law into accord with the Constitution, not to change its policy.

It is not justiciable. Clause (2) says the adaptation shall not be questioned in any court of law. Whether an order genuinely was an adaptation, as opposed to something else done in its name, is a different question, and one that clause does not obviously close.

Article 372A repeats the power for the reorganisation of States by the Seventh Amendment 1956, exercisable by order made before 1 November 1957.

Where this bites in this paper

Two places, and both are examinable.

The detention laws. Bengal Regulation III of 1818 and the provincial Public Safety Acts were law in force on 25 January 1950 and continued under article 372. They did not thereby become immune. Being subject to the other provisions of the Constitution, they had to answer article 22 and article 21, and it was under a continued or newly enacted law of exactly this type that A.K. Gopalan v. State of Madras, AIR 1950 SC 27, was fought within weeks of the Constitution coming into force.

The Punjab Jail Manual point. The observation recorded in [Civil Liberties Under Pre-Independence Law in India], that Regulation III of 1818 still appeared in the Punjab Jail Manual of 1975, is an illustration of article 372 in action. Nothing repealed it, so it continued, and continuing law is not repealed by disuse.

The relation between article 372 and article 13(1)

Students confuse them constantly, and the distinction is simple.

Article 372 answers the question whether the old law exists. It does, until altered.

Article 13(1) answers the question whether it operates. All laws in force immediately before the commencement, in so far as they are inconsistent with Part III, are void to the extent of such inconsistency.

So a pre-constitutional statute is continued by article 372 and cut down by article 13(1), and the cutting down is partial and not total. Exactly how partial is the doctrine of eclipse and severability, which is the next chapter.

A useful way to hold it: article 372 keeps the book on the shelf; article 13 decides which sentences in it can still be read.

A worked example

A Provincial Act of 1946 empowers a District Magistrate to detain a person for six months without communicating the grounds, and provides that no order shall be called in question in any court. It is unrepealed on 26 January 1950.

Does it continue? Yes, under article 372(1), being law in force in the territory of India immediately before the commencement.

Was it a temporary Act with a stated life? If it was, Explanation III means it expired on its own date and article 372 did not extend it.

Is it good law after 26 January 1950? Only so far as it is consistent with Part III. The provision withholding the grounds is inconsistent with article 22(5), and the ouster of the courts is inconsistent with article 32 and, in the High Court, with article 226; both are void to that extent under article 13(1).

Does the rest survive? That depends on severability, taken in the next chapter.

Could the President have fixed it? He could have adapted it under article 372(2), but only until three years from the commencement, and only by way of adaptation to bring it into accord with the Constitution.

Who can repeal it now? A competent Legislature: Parliament or the State Legislature according to whether the subject falls in Entry 9 of List I or Entry 3 of List III.

What it does NOT mean

Article 372 does not validate anything. It continues laws subject to the Constitution; it does not immunise them from Part III.

It does not continue temporary laws past their expiry. Explanation III says so.

The adaptation power is not a general power to legislate. It is confined to bringing a law into accord with the Constitution, and it expired in 1953.

Article 395 did not repeal the ordinary statute book. It repealed the Indian Independence Act 1947 and the Government of India Act 1935 with its amending and supplementing enactments, excepting the Abolition of Privy Council Jurisdiction Act 1949.

Quick revision

• Art 395: repeals the Indian Independence Act 1947 and the Government of India Act 1935 with amending and supplementing enactments, not the Abolition of Privy Council Jurisdiction Act 1949.
• Art 372(1): notwithstanding that repeal, but subject to the other provisions of this Constitution, all law in force immediately before the commencement continues until altered, repealed or amended by a competent Legislature or other competent authority.
• Explanations: I, law in force includes laws not then in operation at all or in particular areas; II, extra territorial effect preserved; III, no temporary law is continued beyond its own expiry; IV, Governor's Ordinances under s.88 of the 1935 Act cease six weeks after the first meeting of the State Assembly.
• Art 372(2): President may adapt and modify by order, whether by repeal or amendment, to bring a law into accord with the Constitution, and the adaptation shall not be questioned in any court; art 372(3): not after three years, substituted for two by the First Amendment; and a competent Legislature may still repeal or amend.
• Art 372A: the same power for the Seventh Amendment 1956, by order before 1 November 1957.
• Art 372 keeps the law in existence; art 13(1) makes it void to the extent of inconsistency with Part III.

Test yourself

1. What exactly did article 395 repeal? The Indian Independence Act 1947 and the Government of India Act 1935 together with all enactments amending or supplementing the latter, but not the Abolition of Privy Council Jurisdiction Act 1949.

2. State the three parts of article 372(1). That the continuance operates notwithstanding the repeal effected by article 395; that it is subject to the other provisions of the Constitution; and that the continued law lasts only until altered, repealed or amended by a competent Legislature or other competent authority.

3. What does Explanation III do, and why does it matter? It provides that nothing in the article continues a temporary law beyond the date fixed for its expiration or the date on which it would have expired but for the Constitution, so wartime and other time limited enactments did not gain a new life on 26 January 1950.

4. Describe the adaptation power and its two limits. The President could by order make adaptations and modifications of any law in force, by repeal or amendment, to bring it into accord with the Constitution, and such an adaptation could not be questioned in any court; the limits are that it was exercisable only for three years from the commencement, and only for that purpose, a competent Legislature remaining free to repeal or amend the adapted law.

5. How do articles 372 and 13(1) divide the work? Article 372 answers whether the pre-constitutional law continues to exist, and it does until altered; article 13(1) answers whether it operates, making it void to the extent of its inconsistency with Part III.