Article 370 – A “temporary” Article with fake tag of “Special”.
   08-Jul-2019
 

 
 
 
ARTICLE 370 – Temporary not special.
 
For the last 70 years a misconception has developed and circulated that Article 370 is special status of Jammu Kashmir. Amit shah, Home Minister of India while addressing in Loksabha , made it very clear that Article 370 is temporary not special
 
 
 
It is not that Amit shah was speaking something which is deviated from the Government Stand or Constitution of India. In a reply dated 11.3.2015 Home ministry clearly stated that “As per Indian Constitution No special status has been accorded to the State of Jammu Kashmir, rather there is a temporary Article related to Jammu Kashmir i.e Article 370. 
 


 
 

Reply given by Constitutional expert Subhash Kashyap is given below

 
 
 
 

The Constitution has a specific Part-21 devoted to temporary, transitional and special provisions. Under that, there is one Article — 370. Marginal heading for (Article) 370 is – temporary provisions with respect to Jammu and Kashmir. There is another Article for states like Nagaland, Maharashtra, Gujaratetc which is described as a special provision. There was another Article about some laws which was described as a transitional provision. So the Constitution makers made a difference between transitory, temporary and special provisions. Article 370 is specifically and categorically described as temporary. The media has been very often using the term special provision or special relationship – that is not correct. It is a temporary provision.”

 
 
 
 
Historical background of Article 370
 
 
Article 370 is one the most discussed Articles of Indian Constitution. As far as Article 370 is concerned, there are two segments among intelligentsia. First who believe that Article 370 be deleted and second are those who want to protect Article370. The whole debate is centered on its deletion or continuation. The scope of the debate needs to be widened. First of all we need to understand what historical background of Article 370 is. After the partition of British India Pakistan became separate Dominion. IN India process of Constitution making began.
 
 
The Constituent Assembly had prepared the constitution of India by the middle of 1949, the draft committee, after debating and discussing some of the part of the Constitution had passed the constitution of India. All the states of the Union of India were divided in three parts.
 
 
A) Those States which were part of British India,
 
 
B) The princely states which had integrated with India under Govt of India Act of 1935 and India Independence act of 1947.
 
 
There was provision to organise state legislatures for the states under category A and B. The governors for the states of category A were to be appointed by the President of India and for category B the heads of the state were to be appointed by the President. This head of the state were basically the former rulers of the princely states. Besides the two the third category, C where the princely states or groups of princely states which merged with India but they were directly administered by the center. Although the process of formulating the Constitution was in its last final phase. A new democratic set up was in making. But Jammu Kashmir had some issues .


The need of article 370
 
 
Jammu and Kashmir was one of the states where the issues were unresolved. War was on in the State. Pakistan had forcefully occupied huge part of Jammu and Kashmir. The Government of India had taken this matter to the Security Council so that Pakistan could be declared the aggressor and the area illegally occupied by Pakistan could be freed. The matter was still pending in the Security Council and despite the resolutions passed by the Security Council Pakistan did not evacuate the illegally occupied area of Jammu and Kashmir.
 
 
Despite this uncertainty, it was unfair to keep the democratic process away from the state of Jammu and Kashmir. Along with this it was also important to implement the constitution of India in the state, hence the idea of Article 370 was generated. Article 370 was to implement the constitution of India in Jammu and Kashmir, though a process created for the same. On 17th October 1949 while presenting
 
 
article 370 (Draft Article 306A) the constituent assembly GopalswamyIyyangar brought out the importance and necessity of article 370.
 
 
He said that ‘We are currently tangled up in the United Nations with the Kashmir issue we do not know how long will it take to resolve this matter…. therefore article 370 is a temporary provision.
 
 
 
 
According to article 370-Article 370 in The Constitution of India 1949
 
 
370. Temporary provisions with respect to the State of Jammu and Kashmir
 
 
(1) Notwithstanding anything in this Constitution,
 
 
(a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;
 
 
(b) the power of Parliament to make laws for the said State shall be limited to
 
 
(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
 
 
(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify Explanation For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March, 1948 ;
 
 
(c) the provisions of Article 1 and of this article shall apply in relation to that State;
 
 
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government
 
 
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub clause (b) of clause ( 1 ) or in the second proviso to sub clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon
 
 
(3) 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
 
Basically, till peace is not restored in Jammu and Kashmir and the condition does not become normal till then to implement the constitution of India in Jammu and Kashmir, article 370 was an alternative arrangement. Within the constitution of India the arrangement was made so that was the situation gets normal in Jammu and Kashmir it will also merge with India and the temporary transitory article 370 will be removed. Thus article 370 remains a temporary provision. It had to go soon after its addition.