Article 392 of Constitution of India: Power of the President to Remove Difficulties

The Constitution of India came into force on 26 January 1950, marking a fundamental shift in India’s constitutional and governance framework. This transition was not merely symbolic; it involved replacing the colonial legal structure under the Government of India Act, 1935 with a comprehensive, sovereign constitutional order. 

Such a massive legal transformation was bound to give rise to practical and administrative difficulties. To address these transitional challenges, the framers of the Constitution incorporated Article 392, which conferred a limited and temporary power upon the President of India to remove difficulties arising during the initial phase of constitutional implementation.

Article 392 is a transitional provision, designed to ensure a smooth shift from the pre-Constitution legal regime to the constitutional system. Though the provision has now become largely historical in nature, its inclusion reflects the foresight of the Constitution-makers and their concern for continuity, stability, and effective governance.

Text and Placement of Article 392

Article 392 is located in Part XXI of the Constitution, which deals with Temporary, Transitional and Special Provisions. The placement itself indicates that the provision was not intended to be permanent or of general application. Instead, it was meant to operate only during the early life of the Constitution.

The Article empowers the President to issue orders adapting the Constitution, where necessary, to remove difficulties, particularly those arising from the transition from the Government of India Act, 1935 to the Constitution of India.

Purpose and Objective of Article 392

The primary objective of Article 392 was to facilitate a smooth constitutional transition. When the Constitution came into force, several institutions, offices, laws, and administrative practices were still operating under the 1935 Act. Immediate and rigid enforcement of constitutional provisions without flexibility could have led to confusion, administrative paralysis, or legal uncertainty.

Article 392 served as a safety valve, allowing necessary adjustments so that constitutional governance could function effectively from day one. It ensured that minor inconsistencies or gaps did not obstruct the working of the Constitution.

Scope of the President’s Power under Article 392

Under clause (1) of Article 392, the President was empowered to issue orders to remove difficulties by directing that the Constitution shall have effect subject to certain adaptations. These adaptations could take the form of:

• Modification of existing provisions
• Addition of necessary provisions
• Omission of provisions that were temporarily impractical

This power was broad in form but limited in purpose. It was not a power to amend the Constitution but to adapt it for effective implementation during the transition period.

Importantly, the Article specifically mentions difficulties arising “particularly in relation to the transition” from the Government of India Act, 1935. This indicates that the power was intended to address transitional problems and not to deal with future policy or interpretative issues.

Time Limitation on the Exercise of Power

One of the most significant safeguards in Article 392 is the strict time limitation imposed on the President’s power. The proviso to clause (1) clearly states that no order shall be made after the first meeting of Parliament duly constituted under Chapter II of Part V.

This limitation ensured that once the democratic legislature was in place, the authority to deal with constitutional or legal difficulties would rest with Parliament and not with the executive. The President’s role was thus confined to the interim period before the full constitutional machinery became operational.

The time-bound nature of this power reflects the constitutional commitment to parliamentary supremacy and democratic governance.

Parliamentary Control and Accountability

Clause (2) of Article 392 provides that every order made under clause (1) must be laid before Parliament. This requirement ensured transparency and legislative oversight, even during the transitional phase.

Though Parliament may not have been fully constituted at the time of issuing some orders, the obligation to place them before Parliament once constituted served as a mechanism of accountability. It reinforced the principle that executive action, even when constitutionally authorised, must remain subject to legislative scrutiny.

Role of the Governor-General Before the Constitution

Clause (3) of Article 392 extends the understanding of transitional authority by clarifying that before the commencement of the Constitution, the powers conferred under Article 392 and certain other provisions were exercisable by the Governor-General of the Dominion of India.

This clause ensured continuity of governance in the brief period between the adoption of the Constitution and its commencement. It prevented any legal vacuum and maintained administrative stability during the final phase of constitutional transition.

Nature of Power: Adaptation vs Amendment

A crucial constitutional distinction must be drawn between the power to adapt and the power to amend. Article 392 did not confer constituent power on the President. Any adaptation made under this Article was:

• Temporary in nature
• Limited to removing practical difficulties
• Subject to parliamentary oversight
• Not capable of altering the basic structure or fundamental principles of the Constitution

The President could not use Article 392 to introduce substantive constitutional changes or override constitutional mandates. The power was functional, not transformative.

Comparison with Similar Constitutional Provisions

Article 392 is not unique in constitutional design. Similar “removal of difficulties” clauses can be found in:

• Article 372, which continues existing laws
• Article 367, which aids constitutional interpretation
• Various statutory enactments, where transitional difficulties are anticipated

These provisions collectively demonstrate a constitutional approach that values continuity, flexibility, and administrative practicality during periods of legal change.

Conclusion

Article 392 of the Constitution of India was a carefully crafted transitional provision aimed at ensuring a smooth and effective shift from colonial governance under the Government of India Act, 1935 to a sovereign constitutional system. By empowering the President to remove difficulties during the initial phase, the Constitution avoided administrative confusion and legal uncertainty.