Is Article 370 of the Indian constitution regarding Jammu and Kashmir a temporary provision? Can it be removed?

Question

Article 370 of the Indian constitution is an article that gives autonomous status to the state of Jammu and Kashmir.

Mr. Amit Shah, the BJP President, said recently that this provision is temporary, not permanent:

Home Minister Amit Shah Friday blamed former prime minister Jawaharlal Nehru for the political problems and terrorism in Jammu and Kashmir, as he asserted in the Lok Sabha that Article 370 of the Constitution granting special status to the state is "temporary in nature" and "not permanent".

Is this correct? How can Article 370 be removed?

Answer 1

Article 370 is in Part XXI of the Indian constitution "Temporary, Transitional and Special Provisions". It was intended as a temporary measure.

It was introduced in the 1950s when the Princely States were considering joining India. These states, which had been fairly independent under the British Raj, were given the options of retaining their partial independence, or acceding fully to to the Indian Constitution.

The other princely states joined India and became provinices under the Indian Constitution. J&K chose to give the Constituent Assembly the right to decide whether to join as a regular province, or form some other kind of arrangement with the rest of India. Article 370 removes the full requirements of the Indian Constitution from J&K, until such time as the Constituent assembly can decide on what it wants to do.

It was intended as a temporary measure, in the expectation that the Assembly would probably vote to join India (or adopt some other constitution), at which point the President of India would have the power to declare that the article would cease to apply.

However, war with Pakistan changed things a bit, and in 1957 the Constituent assembly dissolved itself without either approving the Indian Constitution nor writing its own constitution. So we are left with the situation of an article which states:

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.

But there is no "Constituent Assembly of the State" that is competent to make such a recommendation. Thus the constitutional mechanism that could allow for this temporary article to be laid aside does not exist.

The article was intended to be temporary, but without any mechanism to cease its operation, it has become part of the permanent Indian Constitution.

Answer 2

James K has already covered the historical part as to what was once temporary was later came to be interpreted as permanent, so I'm going to cover the part about removal of the Art 370.

I suggest you read the Article 370 at least once for a better understanding.

Unlike other articles of the Constitution of India (CoI) which can be amended or repealed via Article 368, Art 370 can be made inoperative per Clause 3, as in to be a dead letter, but not officially repealed.

For the article to become inoperative, the President of India, under Article 370(3), has to issue an Executive order after receiving the recommendation of the Constituent Assembly (CA) of the J&K. However, the CA ceased to exist a long time ago, thereby introducing a great difficulty for the President at any point in time, if felt needed be, to make the article inoperative.

This problem was solved, as witnessed in the Executive order, by President R K Singh, aided by his Prime Minister N Modi and his Council of Ministers, rather cleverly and perhaps unconstitutionally, by using the same process and privileges that actually granted the state of J&K special privileges.

What transpired is this:

For all intents and purposes, the Union Government interpreted the meaning of "Government of the State" (of J&K) in Article 370 as the incumbent Governor of the State. They overlooked the fact that the said article with the note "Explanation" explained that as the person being aided and advised by his Council of Minister, though the Governor was not aided and advised by any such Council when his concurrence was sought by the Union Government to remove the aforesaid difficulty for the President.

Marching on with this interpretation, the President under Art 370(1)(d) amended Art 367 (with respect to J&K) under his order and changed the meaning of CA of J&K to Legislative Assembly (LA) of J&K. This was the biggest difficulty for the President to make the Art 370 inoperative at any time.

Through that same order, all special privileges to J&K have been dismantled using powers from the same Article 370(1)(d), all provision of the Constitution have been imposed on the State, and its very statehood stands endangered by the J&K Reorganisation Bill, 2019 which would bifurcate the state into two UTs.

With the order of President whole Constitution is applicable on the J&k, and given that the state is under President's rule, the Parliament has all the powers under Art 356 to perform all and any function of the LA of the state. It is this power that the Executive is putting the Parliament to use by having the resolution for making Art 370 via its clause 3 fully non-operational, except where it says that Art 1 is valid, thereby ensuring only one thing in Art 370 that the state is an integral part of the Constitution.

I strictly suggest reading this piece from The Hindu as it explains clearly what has happened with Art 370 after the recent changes on Aug 5, 2019.

Answer 3

This article is amendable per the rules of amending the Indian Constitution in Article 368.

The procedure of amendment in the constitution is laid down in Part XX (Article 368) of the Constitution of India. This procedure ensures the sanctity of the Constitution of India and keeps a check on arbitrary power of the Parliament of India.

It is temporary or permanent only in as much as the provision in Article 370 is temporary or permanent. To change it would require amending the constitution and that is difficult. So its permanence would be determined by the collective will of the people of India.

Answer 4

To answer in short, Article 370 can be removed because it was Temporary, Transitional and Special Provisions in nature when it was drafted. It is just that this administration took the step to scrap it and bring J&K under the Indian Union.

Article 370

The article was drafted in Part XXI of the Constitution: Temporary, Transitional and Special Provisions.

Answer 5

Article 370 would seem to have been temporary. The BBC is reporting that the Indian government has revoked it, by presidential order, except for the part that says Kashmir is an integral part of India.

Unsurprisingly, there has been condemnation from the Foreign Minister of Pakistan, and the former chief minister of Kashmir. It's also been called "an attack on the constitution" by members of the Indian parliament.