Article 370 - a temporary provision

Article 370 has only 450 words.  It is a temporary provision with respect to the State of Jammu and Kashmir.  370(1)(a) provides a basis for article 370 as a temporary alternative for provisions of article 238.  But interestingly, Article 238 consisted of provisions dealing with the administration of states in Part B of the First Schedule of Indian constitution. In 1950,the Constitution contained a four fold classification of the states of Indian union - Part A ,Part B ,Part C, Part D states. The Article 238 was omitted from the constitution by the 7th Constitutional Amendment Act,1956 in the wake of reorganization of the states. The instrument of accession signed by Raja Harisingh and accepted by Lord Mountbatten on 26th October, 1947, was the same instrument signed by the other Kings of India.

Article 370 was included in the constitution to satisfy the demand of autonomy by Muslims represented by the Sheikh  Abdullah.  It reflected the contents of the Instrument of accession was applicable only to the Jammu and Kashmir state.  From this perspective, the article 370 can not be seen as a core provision of the Indian constitution as other princely states who have signed the instrument of accession have smoothly integrated into the Indian unitary state.

The article 370 admits superior power of the president of India to declare cessation of this article.  In normal circumstances, the article 370 would require consultation of the state assembly, through the governor of the state, by the president of India to issue orders related to Jammu and Kashmir.  For constitution of the constitution of state, constituent assembly to be convened and concurrence would be sought from the state government.  Irrespective of any other provision, 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.

Article 368 of the constitution lays down the procedure for amendment.  An amendment of the constitution may be initiated by introduction of a Bill in either house of Parliament.  The bill has to be passed in each house by a  majority of total membership of that house.  The attendance of the house during voting should not be less than two-thirds of the members of that house.  Then, the bill  would be presented to the President.  Upon his assent to the Bill, the constitution would be considered as amended.

For amending certain provisions a special procedure is  followed.  Along with voting in each house of the parliament, the bill would be notified by the legislatures of not less than one-half of the states before presented to the president for assent.

The provisions requiring this special procedure to be followed include- manner of the election of the President, matters relating to the executive power of the union and of the state, distribution of legislative powers between the union and the states, provisions of Article 368 relating to the procedure for amendment of the constitution among others. The provisions which require simple majority for amendments include formation of new states and alteration of areas, boundaries or names of existing ones, laws regarding citizenship among others.

The proposal for amending the constitution can be initiated only in the House of the Union Legislature and the State Legislatures have no such power.  In case of ordinary legislation, if both houses of the Parliament disagree, a joint session is convened. But in case of amendment of bills, unless both the houses agree, it cannot materialize, as in such cases there is no provision for convening the joint session of both the Houses of the Parliament.

In view of these facts, the Indian Parliament could invoke its constituent powers under Article 368(1) to cease Article 370 from operation, which could then be brought into force by the President of India through an Order, after “consulting” the J&K Government.  The amendment  to the Indian constitution to abolish Article 370 would fall under the provision of the 370(1)(d) which deals with the matters specified in the instrument of accession.

It should be noted that in Indian constitution, the Part XXI, Articles 369-392, deals with “Temporary, Transitional and Special provisions.”  Provisions specified under Articles 379-391 are already deleted long back through constitutional amendment.  Article 370, in respect of Jammu and Kashmir, is classified under “Temporary provisions” whereas 371(A-I), on nine other States, are under “Special provisions.”   It is meaningless to continue with a “temporary” provision, even more than 60 years since Independence.