Constitution of India
Article 391: Power of the President to amend the First and Fourth Schedules in certain contingencies
Part XXI — Temporary, Transitional and Special Provisions
Clause (1)
WHAT IT SAID: If any action was taken under the Government of India Act, 1935 between the passing and commencement of the Constitution that required changes to the First or Fourth Schedule, the President could by order amend those Schedules, including making supplemental, incidental and consequential provisions. WHAT IT MEANT: The President had executive power — without a constitutional amendment — to update state territories and Rajya Sabha seats to reflect changes made under the old British-era law during the transitional period (26 Nov 1949 to 26 Jan 1950). KEY DOCTRINE: Executive transitional power — non-obstante clause overriding other constitutional provisions temporarily.
Clause (2)
WHAT IT SAID: When the First or Fourth Schedule was amended under Clause (1), any reference to that Schedule in the Constitution would be construed as a reference to the Schedule as so amended. WHAT IT MEANT: Presidential orders amending the Schedules had the same legal force as the original constitutional text — no separate amendment process was needed. KEY DOCTRINE: Doctrine of deemed constitutional amendment — executive orders treated as constitutionally incorporated text.
Constitutional Inspiration
SOURCE(S): 1. Government of India Act, 1935 (UK) — Section 290 and related provisions. Original provision: The Governor-General had power to make adaptations and modifications to the Act and its Schedules to remove difficulties. What India kept: The concept of executive power to amend Schedules for transitional purposes without legislative action. INDIA'S SPECIFIC ADAPTATIONS: 1. Limited scope to only First and Fourth Schedules — Because India's immediate challenge was territorial reorganisation of states and princely states, not the entire constitutional structure. 2. Tied to actions under the Government of India Act, 1935 — Because the transitional period (Nov 1949 – Jan 1950) still operated partly under the old Act, and territorial changes during this window needed constitutional recognition. 3. Non-obstante clause ('notwithstanding anything in this Constitution') — Because framers needed to override normal amendment procedures temporarily to handle rapid state integration. IF ORIGINAL INDIAN CONTRIBUTION: The provision was uniquely necessitated by India's specific challenge of integrating 550+ princely states and reorganising territorial boundaries during the transition from Dominion to Republic status.
Constituent Assembly Debate
DEBATED ON: 16 November 1949 (CAD Volume XI) KEY SPEAKERS: 1. Dr. B.R. Ambedkar (Bombay) — Proposed that the Assembly could pass an act amending Section 290 of the Government of India Act, 1935, so the President could act under Article 391 to amend the Schedule to carry out changes like renaming provinces. 2. Shri Prabhu Dayal Himatsingka (West Bengal) — Argued that Article 391 already covered the issue of Schedule amendments, as the President could simply pass an order before commencement. 3. Shri Jaspat Roy Kapoor (United Provinces) — Disagreed, arguing that Article 391 related only to amendments of the Government of India Act, which was a cumbersome process, and proposed a separate amendment route. MAJOR DISAGREEMENTS: 1. Scope of Article 391 — Whether it was broad enough to cover name changes of provinces or only territorial changes under the Government of India Act, 1935. 2. Article 392 linkage — Whether the Governor-General's transitional powers under Article 392(3) should expressly include Article 391 powers (they did). FINAL OUTCOME: Article 391 was adopted as drafted, and Article 394 was amended to include Article 391 among provisions coming into force immediately on 26 November 1949. AMBEDKAR'S KEY QUOTE: Ambedkar suggested the Assembly 'pass an act amending the Government of India Act 1935, section 290' so that the President could 'act under article 391 and amend the schedule.'
Landmark Judgments
LANDMARK JUDGMENTS: No landmark Supreme Court cases specifically interpreting Article 391, as it was a transitional provision that became spent and was omitted in 1956. RELATED JUDGMENTS (on companion transitional provisions): 1. Shankari Prasad v. Union of India (1951) — Upheld the President's transitional adaptations under the companion Article 392, confirming such orders were constitutionally valid. 2. D.S. Garewal v. State of Punjab (1959) — Affirmed that the President's modifications under Article 392 were within permissible scope, indirectly validating the framework of transitional executive powers including Article 391. 3. Keshavan Madhava Menon v. State of Bombay (1951) — Held that pre-Constitution laws continue unless inconsistent with fundamental rights, establishing the broader principle of transitional legal continuity. NOTABLE DISSENTS: None recorded — Article 391 was never directly litigated before the Supreme Court. SCHOLARS & JURISTS: 1. Granville Austin — Noted that transitional provisions like Articles 369–392 were essential to ensure smooth governance continuity during the Republic's formative years. 2. D.D. Basu — Observed that Article 391 was a practical necessity to keep constitutional Schedules aligned with rapidly changing territorial realities during the integration of princely states.