(1) The Judges of the Federal Court holding office immediately before the commencement of this Constitution shall, unless they have elected otherwise, become on such commencement the Judges of the Supreme Court and shall thereupon be entitled to such salaries and allowances and to such rights in respect of leave of absence and pension as are provided for under article 125 in respect of the Judges of the Supreme Court.

 

(2) All suits, appeals and proceedings, civil or criminal, pending in the Federal Court at the commencement of this Constitution shall stand removed to the Supreme Court, and the Supreme Court shall have jurisdiction to hear and determine the same, and the judgments and orders of the Federal Court delivered or made before the commencement of this Constitution shall have the same force and effect as if they had been delivered or made by the Supreme Court.

 

(3) Nothing in this Constitution shall operate to invalidate the exercise of jurisdiction by His Majesty in Council to dispose of appeals and petitions from, or in respect of, any judgment, decree or order of any court within the territory of India in so far as the exercise of such jurisdiction is authorised by law, and any order of His Majesty in Council made on any such appeal or petition after the commencement of this Constitution shall for all purposes have effect as if it were an order or decree made by the Supreme Court in the exercise of the jurisdiction conferred on such Court by this Constitution.

 

(4) On and from the commencement of this Constitution the jurisdiction of the authority functioning as the Privy Council in a State specified in Part B of the First Schedule to entertain and dispose of appeals and petitions from or in respect of any judgment, decree or order of any court within that State shall cease, and all appeals and other proceedings pending before the said authority at such commencement shall be transferred to, and disposed of by, the Supreme Court.

 

(5) Further provision may be made by Parliament by law to give effect to the provisions of this article.

Debate Summary

Draft Article 308, Constitution of India 1948 

308. (1) The judges of the Federal Court holding office immediately before the date of commencement of this Constitution shall, unless they have elected otherwise, become on that date the judges of the Supreme Court and shall thereupon be entitled to such salaries and allowances and to such rights in respect of leave and pensions as are provided for under article 104 of this Constitution in respect of the judges of the Supreme Court. 

(2) All suits, appeals and proceedings, civil or criminal, pending in the Federal Court at the commencement of this Constitution shall stand removed to the Supreme Court, and the Supreme Court shall have jurisdiction to hear and determine the same and the judgments and orders of the Federal Court delivered or made before the commencement of this Constitution shall have the same force and effect as if they had been delivered or made by the Supreme Court. 

(3) On and from the date of commencement of this Constitution the jurisdiction of His Majesty in Council to entertain and dispose of appeals and petitions from or in respect of any decree or order of any court within the territory of India including the jurisdiction in respect of criminal matters exercisable by His Majesty by virtue of His Majesty's prerogative shall cease, and all appeals and other proceedings pending before His Majesty in Council on the said date shall be transferred to, and disposed of, by the Supreme Court. 

(4) Further provision may be made by Parliament by law to give effect to the provisions of this article. 

 

Draft Article 308 (Article 374 of the Constitution of India 1950) was discussed in the Constituent Assembly on 10 October 1949.  

 

This transitional provision stated that the Judges of the Federal Court (established under the Government of India Act 1935) would automatically become the Judges of the Supreme Court of India after the new Constitution came into effect. It shifted all pending proceedings in the Federal Court to the Supreme Court. Further, the power of the Privy Council (the highest judicial body during the colonial regime) to consider and dispose of appeals and petitions was transferred to the Supreme Court of India.  

 

The Drafting Committee Chairman introduced two amendments. The first gave the Privy Council time to dispose of certain types of cases involving appeals which might be pending before it, even after the Constitution came into force. The amendment aimed to reduce the hardship of the litigants. The second, did away with the Privy Councils that existed in the Princely States and brought the High Court in all these States under the Supreme Court of India.  

 

One Member felt that to give the Privy Council more time to dispose off appeals was unnecessary as there would anyway be no pending Indian matters in the Privy Council. He argued that the provision was ‘too wide and embraces imaginary cases which do not exist’. Further, to give the Council such power after India would have become an independent republic with a functioning Constitution seemed rather strange to him. Another Member added that if the Council were to have such powers in the country after the Constitution came into force, it would be derogatory to Indian independence.  

 

The Drafting Committee Chairman saw no substance in these oppositions. He insisted that the continued power of the Privy Council to dispose pending appeals was necessary. Further, he assured members that there was no reason to feel humiliated as the Council, after independence, would only be acting as an agent of the Constituent Assembly.  

 

Draft Article 308, as amended by the Drafting Committee Chairman, was adopted as part of the Constitution on 10 October 1949.