Constitution of India
Article 392: Power of the President to remove difficulties
Part XXI — Temporary, Transitional and Special Provisions
Clause (1)
WHAT IT SAYS: The President may, for removing any difficulties — particularly in relation to the transition from the Government of India Act, 1935 — by order direct that the Constitution shall have effect subject to such adaptations (modification, addition or omission) as he deems necessary, provided no such order is made after the first meeting of Parliament duly constituted under Chapter II of Part V. WHAT IT MEANS: The President was given temporary power to modify constitutional provisions through executive orders to ensure smooth transition from colonial law to the new Constitution, but only until the first elected Parliament convened (1952). KEY DOCTRINE: Doctrine of Removal of Difficulties — presidential orders under this clause are legislative in character but limited to transitional implementation, not substantive constitutional amendment.
Clause (2)
WHAT IT SAYS: Every order made under clause (1) shall be laid before Parliament. WHAT IT MEANS: Parliamentary oversight was mandated — the President could not exercise this transitional power secretly; all orders required tabling before Parliament for transparency and review. KEY DOCTRINE: Principle of Parliamentary Scrutiny over executive orders — ensures checks and balances even during transitional periods.
Clause (3)
WHAT IT SAYS: The powers conferred on the President by this article, by Article 324, by clause (3) of Article 367 and by Article 391 shall, before the commencement of the Constitution, be exercisable by the Governor-General of the Dominion of India. WHAT IT MEANS: Between 26 November 1949 (adoption) and 26 January 1950 (commencement), these transitional powers were exercised by the Governor-General, not the President (who had not yet assumed office). KEY DOCTRINE: Doctrine of Constitutional Continuity — ensures no governance vacuum during the interregnum between adoption and commencement of the Constitution.
Constitutional Inspiration
SOURCE(S): 1. Government of India Act, 1935 (UK) — Section 309 (Power to remove difficulties) Original provision: The Governor-General could issue orders to remove difficulties in giving effect to the Act of 1935 during the transitional period. What India kept: The concept of a temporary executive power to modify constitutional provisions for transitional implementation. 2. Irish Constitution, 1937 — Article 51 (Transitory Provisions) Original provision: Temporary provisions to bridge the gap between the old Free State Constitution and the new Constitution. What India kept: The principle of transitional provisions with automatic sunset upon full constitutional implementation. INDIA'S SPECIFIC ADAPTATIONS: 1. Time-bound limitation (until first elected Parliament) — Why: Framers wanted to ensure democratic supremacy once elected representatives convened. 2. Mandatory parliamentary tabling of orders — Why: India's framers insisted on legislative oversight even during transitional executive action. 3. Governor-General pre-commencement clause — Why: India became a Republic only on 26 Jan 1950; the interregnum required legal continuity under the existing Dominion framework.
Constituent Assembly Debate
DEBATED ON: 7 October 1949 (CAD Volume X) KEY SPEAKERS: 1. Dr. B.R. Ambedkar (Drafting Committee Chairman) — Defended the article, arguing unforeseen transitional difficulties would arise and the Provisional Parliament would be too busy to address them immediately. 2. Opposition Members — Argued the article gave the President excessive discretionary power to modify the Constitution without clarity on duration. 3. Another Member — Suggested changes should be made on Parliament's recommendation or laid before Parliament for approval, not merely tabled. MAJOR DISAGREEMENTS: 1. Scope of Presidential Power — Members feared the wide wording could allow substantive constitutional changes at presidential discretion. 2. Duration of Power — Members demanded clarity on how long the President would hold this extraordinary authority. FINAL OUTCOME: Draft Article 313 was adopted as amended by Dr. Ambedkar on 7 October 1949, with a proviso that the power would automatically lapse after the first meeting of the duly constituted Parliament. AMBEDKAR'S KEY QUOTE (paraphrase): "There are bound to be some difficulties arising during the transition period that the Drafting Committee or Constituent Assembly may not foresee. The President must have power to bring about an effective and immediate remedy."
Landmark Judgments
LANDMARK JUDGMENTS: 1. Sankari Prasad Singh Deo v. Union of India (1951) — SC upheld the President's Constitution (Removal of Difficulties) Order No. 2 adapting Article 368, holding Article 392 power is broadly expressed and the mention of transition difficulties is illustrative, not restrictive. 2. D.S. Garewal v. State of Punjab (1958) — SC upheld the President's omission of the Council of States resolution requirement from Article 312 under Article 392, affirming that the power to adapt by way of modification, addition or omission is very wide. 3. A.K. Roy v. Union of India (1982) — SC clarified that the 'removal of difficulties' power cannot be interpreted as a licence to make substantive amendments; it is confined strictly to overcoming practical implementation challenges. 4. Keshavan Madhava Menon v. State of Bombay (1951) — SC acknowledged the necessity of transitional powers like Article 392 for ensuring smooth governance during the transition from pre-Constitution to post-Constitution legal framework. NOTABLE DISSENTS (if any): 1. No formally recorded dissent in the above cases on the Article 392 question specifically. SCHOLARS & JURISTS: 1. D.D. Basu — Described Article 392 as a necessary 'safety valve' for constitutional transition, emphasising its strictly temporary and non-amendatory character. 2. H.M. Seervai — Noted that the power under Article 392 is legislative in character but limited in scope and duration, distinguishing it from the constituent power under Article 368.