Article 370 is not temporary provision: Para 7 of J&K accession treaty

Contrary to what home minister Amit Shah said in the parliament, facts reveal that Article 370 was a major condition for the accession of Kashmir. Amit Shah clearly said in the parliament that it was surely drafted long after Kashmir signed the Instrument of Accession and therefore it couldn’t have been a condition to join the Republic of India. But facts speak otherwise. Paragraph 7 of the instrument of accession clearly says that one of the terms of joining India was that the ruler of J&K wasn’t going to just accept the eventual Constitution in full, that he would have the discretion to decide which parts of such a Constitution would apply in the state. Article 370 – originally draft clause 306A – had to, therefore, be included to ensure that the government of J&K would retain this discretion.

Therefore Jammu and Kashmir had the right to choose which parts of the Constitution would be applied in the state and Article 370 was included to ensure that the state retains its choice.

As pointed by the news website The Quint, the Supreme Court too in a case had affirmed that Article 370 was not a temporary provision.

In a case in 1968, Sampat Prakash vs State Of Jammu & Kashmir & Anr, Sampat Prakash challenged the detention law in the state saying it violates his fundamental rights. Article 370 allowed to implement provisions in the constitution to an extent in the state.

Provisions had been passed under Article 370 saying the preventive detention laws in Jammu and Kashmir could not be challenged on the ground of violation of fundamental rights. After this, Prakash argued that Article 370 was just a temporary provision given to the state of Jammu and Kashmir.

A constitutional Bench of the Supreme Court rejected the proposition that Article 370 was a temporary provision giving the following reasons:

• The legislative history of article 370 does not say that it was a temporary provision.
• Nothing was said in the article 370 that it would no longer be implemented if the Constituent Assembly of J&K is dissolved
• Article 370(3) provided the conditions under which Article 370 would cease to operate: when a recommendation to this effect was made by the Constituent Assembly of J&K. The Constituent Assembly of J&K was dissolved in 1956 but before its dissolution, had specifically recommended that Article 370 should remain in force.
• Article 370 was serving its original purpose that allows the President of India to implement necessary provisions from the Constitution.

You can read the full text of the Instrument of Accession here.

With inputs from The Quint