Political Philosophy
Before the Commencement: The Sixteen Articles the Constitution Brought Into Force First
12 September 2026 · 15 min read
A constitution is ordinarily said to come into force on a day, and India's is dated twice. The Preamble closes with the words "IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION". The commencement is two months later, on 26 January 1950.
The gap is usually explained as a wait. The later date had been chosen to mark the declaration of complete independence of 26 January 1930, the document was finished before the anniversary came round, and the Assembly held it back. That explanation accounts for the choice of the date. It does not account for what the commencement article actually does, which is not to postpone the Constitution but to divide it.
Article 394 reads:
"This article and articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391, 392 and 393 shall come into force at once, and the remaining provisions of this Constitution shall come into force on the twenty-sixth day of January, 1950, which day is referred to in this Constitution as the commencement of this Constitution."
Sixteen articles, counting Article 394 itself, were law from 26 November 1949. The rest were not. And the sixteen are not a miscellany. Read together they are an answer to a question a constitution has to answer before it can begin to operate, and cannot answer out of its own operative provisions: who is to fill the offices it creates, and by what authority is anything done before there is anybody holding them.
What the sixteen articles are for
They fall into five groups, and each group supplies something the remaining provisions take for granted.
The first is the identity of the persons the Constitution is about. Articles 5 to 9 are the citizenship provisions — citizenship at the commencement of the Constitution, and the position of those who had migrated from or to the territory now included in Pakistan, of persons of Indian origin residing outside India, and of persons who had voluntarily acquired foreign citizenship.
The second is the vocabulary. Article 366 is the definitions article and Article 367 the interpretation article, the latter directing that the General Clauses Act, 1897 shall apply to the interpretation of the Constitution as it applies to the interpretation of an Act of the Legislature of the Dominion of India. A document cannot be read before its terms mean anything.
The third is the machinery for producing the organs the document assumes. Article 60 prescribes the oath of the President. Article 324 vests in an Election Commission the superintendence, direction and control of the preparation of the electoral rolls and the conduct of elections. Articles 379, 380 and 388 were the transitional provisions for the provisional Parliament, for the President, and for the filling of casual vacancies in the provisional Parliament and the provisional Legislatures of the States.
The fourth is a power to alter the document during the interval. Article 391 permitted amendment of the First and Fourth Schedules in a stated contingency; Article 392 is the power to remove difficulties.
The fifth is the document's own name and the rule of commencement: Article 393, which provides that "This Constitution may be called the Constitution of India", and Article 394 itself. Both are necessary in the interval for a reason that is easy to miss — the other fourteen articles speak of "this Constitution", and a document that is only partly in force needs, within the part that is in force, to have given itself a name and to have stated which of its provisions are operative.
The offices had to be filled by somebody
A constitution that creates a legislature, an executive and a judiciary cannot fill any of them by its own operation. Election presupposes an electorate, an electoral roll, and an authority to conduct the election; appointment presupposes an appointing officer. At the first instant there is nobody. The only bodies available are the one that wrote the document and the officers of the order it replaces, and a constitution that is not imposed from outside has to choose between them, or settle on some division between the two.
Article 380, as it stood before its omission, chose the first:
"Such person as the Constituent Assembly of the Dominion of India shall have elected in that behalf shall be the President of India until a President has been elected in accordance with the provisions contained in Chapter I of Part V and has entered upon his office."
Article 379(1) made the same choice for the legislature:
"Until both Houses of Parliament have been duly constituted and summoned to meet for the first session under the provisions of this Constitution, the body functioning as the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution shall be the provisional Parliament and shall exercise all the powers and perform all the duties conferred by the provisions of this Constitution on Parliament."
So the first President was elected by the Assembly that had drafted the office, and the first Parliament was the Assembly itself, sitting in a different capacity and exercising the whole of the legislative power the new document conferred. Those two provisions had to be in force before the commencement because the election of the President had to have happened before there was a President to enter upon office on the first day. Article 60 appears to be in the list for the same reason. It requires the oath to be made "before entering upon his office", and the office of President began with the Constitution; a provision commencing at that same instant could not govern something that had to precede it. The Constitution does not state that as the reason, and the point is an inference from the structure rather than a recorded explanation — but no other reading of Article 60's presence in the list suggests itself.
That group of provisions is the Constitution declining outside help with the one thing it could not accept help with. Whatever the arrangements for the interval, the first holders of constitutional office were to be chosen by the body claiming to speak for the people of India, and not by the Dominion.
Four powers lent to the Governor-General
On the administrative side the choice went the other way, and the text is explicit about it. Article 392(3) provides:
"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 this Constitution, be exercisable by the Governor-General of the Dominion of India."
Four powers, named individually. It is worth setting out what each of them is, because the list is more striking than the clause makes it sound.
The power under Article 392(1) is the power to adapt the Constitution. The President may, "for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935, to the provisions of this Constitution, by order direct that this Constitution shall, during such period as may be specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient". Modification, addition or omission — of the Constitution, by order.
The power under Article 391 was narrower and, in its own way, more pointed. If at any time between the passing of the Constitution and its commencement any action was taken under the provisions of the Government of India Act, 1935 which in the opinion of the President required any amendment in the First Schedule and the Fourth Schedule, he could, notwithstanding anything in the Constitution, by order make such amendments in those Schedules as were necessary to give effect to the action so taken. The First Schedule is the list of the States and their territories; the Fourth Schedule allots seats in the Council of States. The article contemplated that the outgoing statute would continue to be used during the interval in ways that would falsify the new document's own schedules, and provided for the schedules to be corrected to follow.
The powers under Article 324 are the powers of constitution and staffing. Clause (1) vests the superintendence, direction and control of the preparation of the electoral rolls, and of the conduct of elections, in the Commission; clause (2) leaves to the President the fixing of the number of Election Commissioners and their appointment; clause (4) allows him to appoint Regional Commissioners; clause (5) leaves their conditions of service to be determined by his rules. Until commencement, all of that belonged to the Governor-General.
The power under the proviso to Article 367(3) is the power to declare, by order, that a State is not a foreign State for specified purposes.
Now read Article 392(3) against the list of what was not brought into force. Article 368, the power of Parliament to amend the Constitution, is not among the sixteen. Nor is Article 395, the repeal of the Indian Independence Act, 1947 and the Government of India Act, 1935. During the two months between adoption and commencement, therefore, the position was this. The Government of India Act, 1935 remained in force. Sixteen articles of the Constitution were also in force. The amending procedure in Article 368 was not. Leaving aside whatever the Constituent Assembly might have done to a document it had itself enacted and not yet brought into operation, the only powers the Constitution conferred on anybody to alter its own text in the interval were Articles 391 and 392 — and both of them, by the express terms of Article 392(3), belonged to the Governor-General of the Dominion of India.
That is an unusual thing for a founding document to record about itself, and it is recorded without comment: four article numbers in a sub-clause.
Two limits, and what they show
The lending was bounded in ways that repay attention, because the bounds show what was thought to be at stake.
The first bound is temporal and appears as a proviso to Article 392(1): "no such order shall be made after the first meeting of Parliament duly constituted under Chapter II of Part V." The power to adapt the Constitution was to end not on a calendar date, and not when the President took office, but at the first sitting of a Parliament produced by a general election. Until a Parliament existed that had been elected under the Constitution, somebody had to be able to make the document work; once one existed, nobody needed to, because amendment under Article 368 would do instead. The proviso identifies what the adaptation power was a substitute for.
The second bound is a duty of disclosure. Article 392(2) requires that every order made under clause (1) be laid before Parliament. An order made before there was a Parliament elected under the Constitution would come before that Parliament afterwards. The clause does not provide for annulment. It provides for the record.
Neither bound restricts the substance of the power. Both attach to its exercise — when it may be used, and that its use must be shown. A power whose content cannot be specified in advance, because the difficulties it is meant to meet have not arisen yet, can be limited in no other way.
An article in force that had nothing to do
Article 5 was law from 26 November 1949. It reads: "At the commencement of this Constitution, every person who has his domicile in the territory of India and — (a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India."
Every operative word in that article is tied to the commencement, which was two months away. Nobody became a citizen under Article 5 on 26 November 1949. The article was in force and had no work to do.
Bringing it forward was nonetheless not pointless, and the pairing in the list is hard to read any other way. Article 324 vested the superintendence, direction and control of the preparation of the electoral rolls in the Election Commission from the same day. An electoral roll is a list of persons entitled to vote, and entitlement runs through citizenship. An authority charged from 26 November 1949 with preparing rolls for elections to be held under a Constitution that had not yet commenced needed an enacted standard of who its citizens would be. What the citizenship articles supplied from that date was not an operative change in anybody's status but exactly that standard. How much roll preparation was in fact done before commencement is a question of administrative history the text does not answer; what the text does is make the standard available in advance of the work.
The same pattern appears inside Article 6 itself. Its clause (b)(ii) makes the citizenship of a person who migrated from the territory now included in Pakistan on or after 19 July 1948 depend on his having been "registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him therefor to such officer before the commencement of this Constitution in the form and manner prescribed by that Government". A provision of the Constitution, in force before the commencement, attaches consequences at commencement to a registration made in the interval by an officer of the Dominion under a form prescribed by the Dominion Government.
That is what an early-commencing article is for. It does not govern the interval. It makes the interval's work count.
The sixteen were chosen for what they had to do rather than for whether they could be read on their own, and one of them shows the seam. Article 367(1) directs that the General Clauses Act, 1897 shall apply to the interpretation of the Constitution "subject to any adaptations and modifications that may be made therein under article 372". Article 372 is not among the sixteen. From 26 November 1949, therefore, the interpretation article was in force and referred forward to a power that did not yet exist — the President's power under Article 372(2) to adapt existing law began only at commencement, and was exercised on the first day, by the Adaptation of Laws Order, 1950, dated 26 January 1950. The part of the Constitution that came into force early was not a self-contained document. It was a set of provisions enacted in advance because work had to be done in advance, with its own cross-references left to catch up.
What the division records
Put the two halves of Article 394's list together and a division appears that is not the one the standard account would predict.
The Constitution lent out the administration of the transition, including the power to modify its own text, and it lent it to the chief officer of the regime it was replacing. It did not lend out the filling of its offices. The first President was to be elected by the Constituent Assembly; the first Parliament was to be the Constituent Assembly. On the question of who holds office under the new order, the Dominion had no part at all.
The distinction is between legal continuity and political authorisation, and the commencement article keeps them apart. Legal continuity was not in doubt and was not treated as a difficulty: the 1935 Act stayed in force until the last moment, its officers went on exercising their functions, and where the new document needed something done in the interval it was content for the Governor-General to do it, including the adjustment of the Constitution itself. Authorisation was treated differently. The claim in the Preamble is that the people of India gave themselves this Constitution, and a President appointed by the Governor-General would have been a poor beginning for that claim, whatever the legal warrant.
It is easy to state that distinction as a general proposition about founding. What is unusual here is that it is not a proposition at all but a list of article numbers, drawn up by people who had to decide, provision by provision, what the document needed in order to start.
The scaffolding comes down
Most of the sixteen are still in the Constitution. Articles 5 to 9, 60, 324, 366 and 367, 393 and 394 remain. Articles 379, 380, 388 and 391 do not: they were omitted, along with the rest of Articles 379 to 391, by section 29 and the Schedule of the Constitution (Seventh Amendment) Act, 1956, with effect from 1 November 1956. The provisional Parliament had by then been replaced by an elected one, and the provisions that produced the first officers had nothing left to produce.
Article 392 survives, and cannot operate. Its proviso spent it at the first meeting of the Parliament constituted under Chapter II of Part V, which first met in 1952. What is printed at the end of Part XXI is therefore a power that no President can exercise and no amendment has removed — a provision whose only remaining function is to record that the Constitution, for a period measured in months, was a document capable of being adjusted by order.
A constitution is generally read as though its first day were the beginning of everything it contains. Article 394 says otherwise, and says it in the ordinary language of a commencement clause. Sixteen provisions had to be working before the rest could start; four of the powers they conferred were placed, by name, in the hands of the outgoing Governor-General; and the offices were nonetheless filled by the body that wrote the document. The founding was not a single moment. It was a sequence, and the Constitution sets out the order.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.