The ‘Temporary’ Nature of Article 370 and Its Constitutional Challenge

  • August 3, 2023
  • Posted by: OptimizeIAS Team
  • Category: DPN Topics
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The ‘Temporary’ Nature of Article 370 and Its Constitutional Challenge

Subject: Polity

Section: Constitution

Context:

On Wednesday, the Supreme Court commenced the hearing of the constitutional challenge regarding the 2019 abrogation of Article 370 of the Constitution, which provided special status to Jammu and Kashmir.

What was Article 370 and its features?

  • Article 370: 
    • It was a provision in the Indian Constitution that granted special autonomous status to the state of Jammu and Kashmir.
  • Temporary Provision: 
    • Article 370 was intended to provide temporary provisions for the governance of Jammu and Kashmir following its accession to India in 1947.
  • Autonomy:
    • The provision allowed Jammu and Kashmir to have their own constitution, a separate flag, and a high degree of autonomy in matters of governance.
  • Limitations: 
    • However, defense, communication, and foreign affairs were not under the purview of the state and were controlled by the Indian government.
  • Special Laws:
    • Article 370 allowed the state to have its own laws and regulations for permanent residents, which included restrictions on outsiders purchasing land or settling in the region.

What were the main changes brought about by its abrogation in August 2019?

  • On August 5, 2019, the Indian government abrogated Article 370 through a presidential order.
  • End of Special Status:
    • The abrogation resulted in the revocation of the special status of Jammu and Kashmir, effectively ending its autonomy.
  • Reorganization: 
    • Following the abrogation, the state was reorganized into two separate union territories: Jammu and Kashmir, and Ladakh.

Why is Article 370 referred to as a “temporary provision”?

  • Article 370 is in Part XXI of the Constitution, titled “Temporary, Transitional and Special Provisions”. 
    • 370(3) reads:

“Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify: Provided that the recommendation of the Constituent Assembly of the State referred to in Clause (2) shall be necessary before the President issues such a notification.”

  • due to the specific provisions laid out within the article itself, allowing the President to make it inoperative or operative with certain exceptions and modifications.
  • The framers of the Constitution designed Article 370 with the intention of it being a temporary provision to facilitate the process of integrating Jammu and Kashmir into India.

Why Article 370 considered permanent?

  • Clause (3) of Article 370 provided that any change to the relationship between the State of Jammu and Kashmir and the Indian Union could only be brought about on the recommendation of the Constituent Assembly.
  • As per petitioners: 
    • The Constituent Assembly of Jammu and Kashmir, which had the power to recommend changes to Article 370, ceased to exist after adopting the State’s Constitution.
    • Senior advocate argued that once the Constituent Assembly ceased to exist, the power to recommend changes to Article 370 also ended.

The story of accession and after

Polity The 'Temporary' Nature of Article 370 and Its Constitutional Challenge