Article 388 of the Costitution of India with Case law
🔹 Article 388 of the Constitution of India – Provisions as to the Existing Laws and their Adaptation
📘 Text of Article 388 (Now omitted)
Article 388 was a transitional provision in the original Constitution. It dealt with how existing laws would continue after the Constitution came into force.
Original Purpose of Article 388:
It allowed for the continuation and adaptation of laws that were in force before January 26, 1950 (the date the Constitution came into effect).
Such laws could be adapted or modified by the President or Governors of States, as required, to bring them in line with the provisions of the Constitution.
🧾 Full Text (As it stood before repeal):
Article 388 (1):
Notwithstanding the repeal by this Constitution of the Indian Independence Act, 1947, and the Government of India Act, 1935 (including any enactment amending either of the said Acts), but subject to the other provisions of this Constitution, the laws in force in the territory of India immediately before the commencement of this Constitution shall, until altered or repealed or amended by a competent Legislature or other competent authority, continue in force in that territory subject to the adaptations and modifications made by the President under clause (2).
Clause (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 the law as he thinks fit.
📜 Status of Article 388
Repealed by: The Constitution (Seventh Amendment) Act, 1956
Reason for Repeal: It was a temporary and transitional provision, meant to function only immediately after 1950.
Once laws had been adapted and transferred to the new constitutional system, the article became redundant.
⚖️ Relevant Case Laws and References
While Article 388 itself is no longer in force, its application during the early years of the Constitution was referenced in cases dealing with continuity and adaptation of pre-Constitution laws:
🔹 State of Gujarat v. Vora Fiddali Badruddin Mithibhai, AIR 1964 SC 1043
Issue: Whether a pre-Constitution law continued to be valid after 1950.
Held: The court upheld that under Article 372 (read with Article 388 before repeal), existing laws could continue, unless they were inconsistent with the Constitution.
🔹 Deep Chand v. State of U.P., AIR 1959 SC 648
Held: Pre-Constitution laws inconsistent with the Constitution cease to operate. Those that are not inconsistent may continue under Articles 372 and 388 (before its repeal).
🔹 Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128
Held: Procedural laws that existed before the Constitution could continue only if not inconsistent with Part III (Fundamental Rights).
📌 Connection with Article 372
| Article | Purpose |
|---|---|
| Article 372 | Continues pre-Constitution laws generally, subject to consistency with the Constitution. |
| Article 388 | Provided for adaptation/modification of such laws by President/Governor (now repealed). |
✅ Conclusion
Article 388 was a temporary transitional provision in the original Constitution that enabled a smooth legal shift from the colonial legislative framework to the post-Constitution regime by allowing adaptation of old laws. It has since been repealed, but its purpose was fulfilled during India's constitutional transition.
RELATED Blog
0 comments