Articles 373 and 374 of the Indian Constitution: Preventive Detention and Federal Court Transition
Articles 373 and 374 form part of Part XXI (Temporary, Transitional and Special Provisions) of the Constitution of India. They address two issues arising when the Constitution came into force on 26 January 1950: temporary arrangements for preventive detention and the transition from the Federal Court to the Supreme Court of India.
Article 373: Power of the President regarding preventive detention in certain cases
Purpose. Article 373 created a temporary substitute for the parliamentary law-making arrangements envisaged under Article 22(4) and (7) while the newly established constitutional institutions were being organised.
Constitutional text of Article 373
Until provision is made by Parliament under clause (7) of article 22, or until the expiration of one year from the commencement of this Constitution, whichever is earlier, the said article shall have effect as if for any reference to Parliament in clauses (4) and (7) thereof there were substituted a reference to the President and for any reference to any law made by Parliament in those clauses there were substituted a reference to an order made by the President.
Explanation and legal effect
The arrangement operated only until Parliament made provision under Article 22(7), or until one year after the Constitution commenced, whichever occurred first. It did not confer an indefinite presidential power. Contemporary preventive-detention law must instead be assessed against Article 22, applicable parliamentary and state laws, and binding judicial decisions.
Under Article 22, preventive detention concerns detention to prevent anticipated acts rather than punishment following conviction. Its constitutional framework includes safeguards and exceptions; the precise statutory procedure depends on the governing law.
Article 374: Federal Court judges and pending proceedings
Purpose. Article 374 ensured continuity when the Federal Court of India was replaced by the Supreme Court of India, and addressed appeals and proceedings previously associated with His Majesty in Council and certain former princely-state appellate authorities.
Article 374(1): Judges of the Federal Court
Judges holding office in the Federal Court immediately before commencement of the Constitution became judges of the Supreme Court unless they elected otherwise. They became entitled to salaries, allowances, leave and pension rights as provided under Article 125 for Supreme Court judges.
Article 374(2): Pending Federal Court cases
All suits, appeals and proceedings, whether civil or criminal, pending before the Federal Court at the commencement of the Constitution were transferred to the Supreme Court, which obtained jurisdiction to hear and determine them. Judgments and orders delivered by the Supreme Court in those transferred matters had effect accordingly.
Article 374(3): Proceedings before His Majesty in Council
Article 374(3) preserved, to the extent authorised by law, the exercise of jurisdiction by His Majesty in Council to dispose of appeals and petitions concerning judgments, decrees or orders of courts within India. Orders made in such matters after commencement were to have effect as though made by the Supreme Court in the exercise of its constitutional jurisdiction.
Article 374(4): Former Part B States
On commencement of the Constitution, the appellate jurisdiction of authorities functioning as Privy Councils in the former Part B States ceased. Appeals and other proceedings pending before those authorities were transferred to the Supreme Court for disposal. The reference to Part B States is historical: the classification was subsequently removed from the constitutional framework.
Article 374(5): Parliamentary legislation
Parliament may make further provisions by law to give effect to Article 374. This is an enabling clause relating to the transitional arrangements described in that Article.
Key distinctions and practical interpretation
| Provision | Subject | Present-day significance |
|---|---|---|
| Article 373 | Temporary presidential substitution in preventive-detention arrangements under Article 22 | Historical; its transitional period has expired |
| Article 374(1)-(2) | Federal Court judges and pending cases | Explains continuity of the Supreme Court at commencement |
| Article 374(3)-(4) | Former Privy Council appeals and appellate authorities | Historical transfer and recognition of proceedings |
| Article 374(5) | Further implementation by Parliament | Ancillary enabling provision |
Article 373 should not be confused with the current powers of the President under Articles 72, 123 or 352. Similarly, Article 374 is not the general source of the Supreme Court's current jurisdiction: Articles 124 to 147 and applicable laws principally regulate the Court today.
Official constitutional and judicial references
- Legislative Department, Government of India - Constitution of India (authoritative consolidated text and amendments).
- India Code (central legislation and statutory texts).
- Supreme Court of India (judicial institution and judgments).
The constitutional provisions should be read in their officially published form, together with subsequent amendments and applicable case law. This page explains their legal and historical operation without treating expired transitional powers as currently exercisable.