375. Courts, authorities and officers to continue to function subject to the provisions of the Constitution. - All courts of civil, criminal and revenue jurisdiction, all authorities and all officers, judicial, executive and ministerial, throughout the territory of India, shall continue to exercise their respective functions subject to the provisions of this Constitution.
Articles 375 and 376 of the Constitution of India: Continuation of Courts and Provisions for High Court Judges
Articles 375 and 376 form part of the transitional provisions of the Constitution of India. Article 375 ensured continuity in the functioning of existing courts, authorities and officers when the Constitution came into force. Article 376 made transitional provisions concerning Judges of the High Courts who were holding office immediately before the commencement of the Constitution.
In brief: Article 375 preserves institutional continuity by allowing courts, authorities and officers to continue exercising their functions, but makes their continued functioning subject to the Constitution. Article 376 deals specifically with the transition of certain existing High Court Judges into the constitutional framework that commenced on 26 January 1950.
Article 375 - Courts, Authorities and Officers to Continue to Function Subject to the Constitution
Article 375 is a transitional constitutional provision intended to prevent disruption in the administration of justice and government when the Constitution of India came into force.
Text of Article 375
Meaning and purpose of Article 375
The Constitution did not require the existing judicial and administrative machinery of India to be recreated on the date of its commencement. Article 375 provided constitutional continuity to the courts, public authorities and officers that were already functioning.
The important qualification is the expression "subject to the provisions of this Constitution." Existing institutions and officers could continue their respective functions, but after the commencement of the Constitution their powers and functions had to operate within the constitutional framework.
Article 375 expressly refers to courts exercising civil, criminal and revenue jurisdiction and also extends to judicial, executive and ministerial officers and other authorities throughout India.
Article 376 - Provisions as to Judges of High Courts
Article 376 contains transitional arrangements relating to Judges of High Courts who were holding office immediately before the Constitution commenced. Its principal purpose was to provide continuity in the higher judiciary during the transition to the constitutional system established on 26 January 1950.
Article 376(1)
(1) Notwithstanding anything in clause (2) of Article 217, the Judges of a High Court in any Province holding office immediately before the commencement of this Constitution shall, unless they have elected otherwise, become on such commencement the Judges of the High Court in the corresponding State, and shall thereupon be entitled to such salaries and allowances and to such rights in respect of leave of absence and pension as are provided for under Article 221 in respect of the Judges of such High Court.
Any such Judge shall, notwithstanding that he is not a citizen of India, be eligible for appointment as Chief Justice of such High Court, or as Chief Justice or other Judge of any other High Court.
Clause (1) therefore dealt with Judges of the former provincial High Courts. Unless a Judge elected otherwise, the constitutional transition did not itself terminate the Judge's office. The Judge became a Judge of the High Court of the corresponding State.
The provision also connected the salary, allowances, leave and pension rights of such Judges with Article 221 of the Constitution.
Amendment note: The sentence in Article 376(1) concerning eligibility of such a Judge for appointment as Chief Justice or Judge notwithstanding that the person was not a citizen of India was added by section 13 of the Constitution (First Amendment) Act, 1951, with effect from 18 June 1951.
Article 376(2)
(2) The Judges of a High Court in any Indian State corresponding to any State specified in Part B of the First Schedule holding office immediately before the commencement of this Constitution shall, unless they have elected otherwise, become on such commencement the Judges of the High Court in the State so specified and shall, notwithstanding anything in clauses (1) and (2) of Article 217 but subject to the proviso to clause (1) of that Article, continue to hold office until the expiration of such period as the President may by order determine.
Clause (2) addressed Judges of High Courts in the former Indian States corresponding to States that were specified in Part B of the First Schedule at the commencement of the Constitution. It provided for their transition as Judges of the relevant High Court, subject to the constitutional conditions stated in the clause.
Article 376(3)
(3) In this article, the expression "Judge" does not include an acting Judge or an additional Judge.
Clause (3) is a specific definition applicable to Article 376. It excludes an acting Judge and an additional Judge from the expression "Judge" for the purposes of this Article.
Relationship with Articles 217 and 221
Article 376 must be read with the constitutional provisions to which it expressly refers. Article 217 deals with the appointment and conditions of the office of a Judge of a High Court, while Article 221 concerns the salaries and related rights of High Court Judges.
The opening non-obstante language in Article 376 was necessary because the Article created special transitional arrangements for Judges who were already holding judicial office immediately before the commencement of the Constitution.
Difference Between Article 375 and Article 376
Article 375 has a broad institutional function. It preserves continuity of civil, criminal and revenue courts, authorities, and judicial, executive and ministerial officers, subject to the Constitution.
Article 376 is narrower and specifically concerns transitional arrangements for certain Judges of High Courts holding office immediately before the Constitution commenced.
Why These Articles Were Necessary
The commencement of a new Constitution required legal continuity. Without transitional provisions, questions could have arisen regarding the authority of existing courts and public officers and the status of Judges already holding office.
Articles 375 and 376 helped ensure that the commencement of the Constitution did not create an institutional vacuum. Existing institutions continued to function, while the authority under which they operated became subject to the Constitution of India.
Related Constitutional Provisions
- Articles 373 and 374 - Preventive Detention and Transitional Provisions for the Federal Court
- Articles 377 and 378 - Comptroller and Auditor-General and Public Service Commissions
- Articles 378A to 392 - Transitional and Special Provisions
- Articles 393, 394 and 395 - Short Title, Commencement and Repeals
Official Text of the Constitution
For the authoritative and updated constitutional text, readers should refer to the official publications maintained by the Legislative Department, Ministry of Law and Justice, Government of India, and India Code.
Constitution of India - Legislative Department, Ministry of Law and Justice
India Code - Government of India
This article is intended to provide general legal information and an explanatory overview of Articles 375 and 376. For authoritative wording and amendment history, refer to the official text of the Constitution of India.