Constitutional Law about temporary laws
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Part XXI of the Constitution of India is a compilation of laws pertaining to the constitution of India as a country and the union of states that it is made of. This part of the constitution consists of Articles on Temporary, Transitional and Special Provisions.
Articles 370 – 371J
On special provisions with respect to states
Article 370: of the Indian Constitution grants special autonomous status to Jammu and Kashmir. It provides the state with its own constitution, separate flag, and autonomy over internal matters. The article prohibits people from outside the state from buying land or property there. Modifications to Article 370 require the concurrence of the Constituent Assembly of Jammu and Kashmir. However, since the Assembly dissolved in 1957, modifications have been made through presidential orders. In August 2019, the Government of India abrogated Article 370, revoking the state's special status and reorganizing it into two separate union territories.
Article 371A: Special provisions for Nagaland, safeguarding its religious and social practices, customary laws, and administration of civil and criminal justice.
Article 371B: Special provisions for Assam, ensuring equitable distribution of legislative and executive powers between the Union and the state government.
Article 371C: Special provisions for Manipur, ensuring autonomy over its administration and laws related to land and its resources.
Article 371D: Special provisions for Andhra Pradesh, providing equitable opportunities in education and public employment.
Article 371E: Special provisions for Sikkim, safeguarding its ownership rights over land and resources and its unique cultural identity.
Article 371F: Special provisions for the state of Mizoram, ensuring protection of its social and customary laws, administration of civil and criminal justice, and equitable opportunities in education and public employment.
Article 371G: Special provisions for the state of Arunachal Pradesh, safeguarding its religious and social practices, customary laws, and administration of civil and criminal justice.
Article 371H: Special provisions for the state of Goa, ensuring equitable opportunities in education and public employment and safeguarding its Konkani language and culture.
Article 371-I: Special provisions for the state of Maharashtra and Gujarat, providing for equitable opportunities in education and public employment for certain regions.
Article 371J: Special provisions for the state of Karnataka, ensuring equitable opportunities in education and public employment for certain regions.
These provisions under Article 371 aim to protect the interests of these states, particularly those with tribal populations or distinct cultural identities, while ensuring their integration into the larger Indian framework.
Articles 372 – 378A
Provisions for Offices - President, Judges, etc. These were mostly introduced for continuation of "Rule of Law" from British Raj to Indian Govt.
Articles 372 to 378A of the Indian Constitution encompass various transitional and temporary provisions relevant during the initial years following India's independence. These articles address a range of issues, from the continuation of existing laws to the establishment of temporary provisions for certain states or territories.
Article 372: Article 372 provides for the continuity of existing laws and their adaptation until altered or repealed by a competent legislature or other authority. This article ensured that laws enacted by the British colonial government or by the rulers of princely states continued to be valid in independent India until they were amended, repealed, or replaced by new laws.
Article 372A: Article 372A was inserted by the Constitution (Seventh Amendment) Act, 1956. It relates to the continuance of laws in the state of Bombay (now Maharashtra and Gujarat) and the adaptation and modification of certain laws. This provision was crucial in ensuring the smooth transition of laws from the former state of Bombay to its successor states, Maharashtra and Gujarat.
Article 373: Article 373 provides for the continuance of existing inter-State agreements and administrative arrangements. This article facilitated the continuity of agreements and arrangements between states, ensuring the seamless functioning of inter-state relations in various domains such as trade, transport, and administration.
Article 374: Article 374 relates to the continuance of officers in the public service of the Union and the States. This provision ensured the continuity of government personnel, preventing disruptions in public service delivery during the transition period.
Article 375: Article 375 provides for the adaptation of certain references in laws to territories comprised in India immediately before the commencement of the Constitution. This article facilitated the updating and adaptation of legal references to reflect the changed territorial boundaries of India post-independence.
Article 376: Article 376 relates to the provision for conferring supplemental, incidental, or consequential powers on the President or the Governor in certain cases. This provision empowered the President or Governor to exercise additional powers as necessary to address specific situations or contingencies.
Article 377: Article 377 relates to the provision for the President to remove difficulties. This article empowered the President to take necessary measures to remove any difficulties or obstacles in the implementation of the Constitution or existing laws.
Article 378: Article 378 relates to the interpretation. This provision outlines principles for the interpretation of the Constitution, ensuring clarity and consistency in its application.
Article 378A: Article 378A was inserted by the Constitution (Forty-Second Amendment) Act, 1976. It provides for the continuance of certain existing laws. This article aimed to preserve the continuity of specific laws deemed essential for the functioning of the legal system or the governance structure.
These articles played a crucial role in ensuring the smooth transition from colonial rule to independence and in adapting the legal framework of the country to suit the requirements of a democratic republic. While some of these provisions may have been temporary in nature, they were essential for maintaining continuity and stability during a period of significant political and social change.
Articles 392
- Article 392 - Power of the President to remove difficulties.
Article 392 of the Indian Constitution grants the President of India the authority to remove difficulties that may arise in implementing the provisions of the Constitution. This provision acts as a mechanism to address any practical challenges or obstacles that may hinder the effective implementation of constitutional provisions. Key Features
Authority of the President: Article 392 empowers the President to take necessary steps to remove difficulties that may arise in giving effect to the provisions of the Constitution.
Scope of Application: The provision applies broadly to any difficulty encountered in implementing the Constitution, including challenges arising from legislative or administrative processes.
Timeframe for Action: The President's authority to remove difficulties under Article 392 is typically exercised during the transitional phase following the adoption of new constitutional provisions or amendments.
Temporary Nature of Measures: The measures taken by the President under Article 392 are often temporary and intended to address immediate challenges. They may include issuing executive orders or directives to mitigate difficulties pending permanent solutions.
Review Mechanism: Any action taken by the President under Article 392 may be subject to review by the judiciary to ensure compliance with constitutional principles and safeguards.
Importance and Implications
Flexibility in Implementation: Article 392 provides flexibility in the implementation of constitutional provisions, enabling timely responses to emerging challenges without the need for formal amendments.
Efficiency in Governance: By empowering the President to address difficulties promptly, Article 392 contributes to the efficient functioning of the constitutional framework and the governance system as a whole.
Adaptability to Changing Circumstances: The provision reflects the framers' foresight in anticipating potential obstacles to constitutional implementation and ensures the adaptability of the Constitution to changing circumstances.
Historical Context and Usage
Origins: Article 392 is part of the original text of the Indian Constitution adopted in 1950.
Instances of Use: Over the years, the provision has been invoked in various instances to overcome practical challenges arising from complex legal, administrative, or socio-political contexts. Examples include the implementation of new laws, resolution of conflicts between different branches of government, and addressing administrative bottlenecks.
Criticisms and Controversies
Potential Abuse of Power: Some critics argue that Article 392 may provide too much discretion to the President, potentially leading to the arbitrary exercise of power.
Lack of Clarity: There may be instances where the scope and application of Article 392 are not clearly defined, leading to confusion or ambiguity in its interpretation.
Article 392 of the Indian Constitution plays a crucial role in facilitating the smooth implementation of constitutional provisions. It provides the necessary flexibility and authority for the President to address practical challenges that may arise in the governance process. However, its application must be balanced with transparency, accountability, and adherence to constitutional principles to ensure the integrity and legitimacy of government actions.
References
- Constitution of India 2007, pp. 242–266.
- "coi_contents.pdf" (PDF).
- Sources
- "The Constitution of India" (PDF). Government of India, Ministry of Law and Justice. 1 December 2007 . Archived from the original (PDF) on 9 September 2014.
- Part XXI text from wikisource
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