(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of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.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 brining the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order1 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 three years from the commencement of this Constitution; or
(b) to prevent any competent Legislature or other competent authority from repealing or amending any law adapted or modified by the President under the said clause.
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or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas.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, contiue 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the Government of India Act, 1935, and in force immediately before the commencement of this Constitution shall, unless withdrawn by the Governor of the corresponding State earlier, cease to operate at the expiration of six weeks from the first meeting after such commencement of the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.
Debate Summary
Draft 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.
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.