Stop With the Fake News, Article 370 Was NOT a Temporary Provision

The Supreme Court held, way back in 1968, that Article 370 was not temporary. But the propaganda has continued.

You! Yes I mean you, you anti-national sickular jihadist! Why are you posting fake news about our Kashmir?

Ummm, what on earth are you talking about? I haven’t shared any fake news about Kashmir. Or about anything else, for that matter.

Oh hello, don’t try to act all innocent here. I saw your response to Gupta uncle’s post on Facebook, okay? The one where you told him to stop putting up videos of him and his friends doing the naagin dance to celebrate the end of Article 370.

Of course I told him to stop doing that! Did you enjoy seeing all those videos of balding old men acting like they’d won the lottery... that the news channels decided to show us instead of visuals of the actual people of Jammu and Kashmir?

Too caught up to read the whole story? Listen to it here instead:

Okay, fine... they don’t know how to dance and watching them jiggle their pot bellies and comb-overs was a sight that has scarred us for the rest of our lives. But that’s not the point. The point is that in your reply to him, you told him that he was wrong to say Article 370 was supposed to be temporary.

And?

And, that’s fake news! Article 370 was supposed to be temporary, everybody knows that!

All the WhatsApp forwards have been saying it for years and years. And if that isn’t proof enough, our Home Minister Amit Shah said it in speeches in the Parliament. All the op-ed and the comment pieces, and explainers have also confirmed it. You’re busted, just like the anti-India BBC.

Or so you think. What if I told you that all the people saying that Article 370 was a temporary provision are as right as Cristobal Colon was about the location of India all those years ago?

I’d say you were lying, and that Cristobal Colon is a made-up name!

Wrong on both counts!

Just like Cristobal Colon – that’s what Christopher Columbus was known as in Spain (which financed his voyages), by the way, though in Liguria, where he was born, it would be Cristoffa Corombo. Then again, his family is not supposed to have spoken that dialect, so his ‘real’ name is probably Cristofforo Colombo, the Italian version used in authoritative old sources, like...

Enough! I don’t give two phooti kaudis about what Christopher Columbus was originally called, no matter what some ‘authoritative old source’ has to say.

And that right there is the problem, don’t you see? Because there just happens to be an authoritative old source on the status of Article 370, which makes it crystal clear that all those arguing that it was a temporary provision are talking through their topis.

Article 370 and the Instrument of Accession

Oh please, the Instrument of Accession doesn’t say anything about Article 370 okay, so don’t try to make up some argument now like that one about how Article 370 was a precondition for J&K joining India.

Well, first of all, Article 370 was very much a condition for accession. Sure, I know what Amit Shah said in the Parliament: that it was drafted after the Instrument of Accession so it couldn’t possibly have been a condition for the Maharaja’s decision to join India, but look at paragraph 7 of the Instrument of Accession.

It clearly shows 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. Yes, this was the template clause followed in other Instruments of Accession as well, but unlike other princely states, the representatives of J&K insisted on retaining this discretion even after the accession.

Article 370 – originally draft clause 306A – had to, therefore, be included to ensure that the government of J&K to ensure this. Just because other princely states decided not to retain their discretion doesn’t mean the commitment was not made by India to J&K.

Secondly, that’s not the authoritative source I was talking about.

[You can read the complete text of the Instrument of Accession here.]

So, what is your authoritative source then? Some Urban Naxal Pakistani sympathiser from JNU?

No, it’s the Supreme Court of India.

The Supreme Court on Article 370

What!? When did the Supreme Court say anything about this?

10 October 1968, if you want the exact date. In a case called Sampat Prakash vs State Of Jammu & Kashmir & Anr.

A person named Sampat Prakash wanted to challenge the preventive detention laws of J&K on the grounds that they violated his fundamental rights. However, Article 370 allowed provisions of the Constitution, including those on fundamental rights, to be applied in J&K only to the extent the President (with concurrence of the J&K government) had decided.

At the time, a specific provision had been passed under Article 370 (which had been extended several times) saying that J&K’s preventive detention laws could not be challenged on the grounds of them violating fundamental rights. To get around this, Prakash tried to argue in the Supreme Court that Article 370 was a temporary provision and had been rendered ineffective after the Constituent Assembly of J&K had framed the state’s Constitution.

A Constitution Bench (comprising five judges) of the Supreme Court expressly rejected the proposition that Article 370 was temporary, citing the following reasons:

• The legislative history of Article 370 does not suggest that it was supposed to be temporary. When the original draft clause was proposed in the Constituent Assembly of India by minister Sri N Goplaswami Ayyangar, he said it was needed because of a number of special circumstances, which the court found had not changed in 1968 – and have not changed at present either.

These included the government of India’s commitments to the people of Kashmir, and the will of the Kashmiri people, expressed through the Instrument of Accession that their own Constituent Assembly would decide their own Constitution and the extent to which Central laws would apply to them. 

• Next, nothing in the actual provisions of Article 370 said that it would no longer operate once the Constituent Assembly of J&K had completed its work or been 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 to the President, who then issued a notification. The Constituent Assembly of J&K, however, had been dissolved in 1956 – and before its dissolution, had specifically recommended that Article 370 remain in force with just one modification.
• Finally, Article 370 continued to serve its original purpose: allowing the President of India (with the concurrence of the state government) to apply provisions of the Constitution as and when they were necessary. Article 368 of the Constitution, which deals with amendments to the Constitution, also included a special proviso for the application of such amendments to J&K – using the process in Article 370. This proviso says nothing about Article 370 being temporary either.

[You can read the Sampat Prakash judgment of the Supreme Court here.]

Good God, you’re giving me a headache.

But look, if Article 370 was never meant to be temporary, why is the heading in the Constitution itself titled “Temporary provisions with respect to the State of Jammu and Kashmir”? Did your Supreme Court judges forget that?

*mic drop gesture*

First, headings like these are called ‘marginal notes’ and are not counted as part of the text of legislative provisions. So, you can’t really argue that you need to interpret a provision in the Constitution based on what its marginal note says.

Even assuming that such an interpretation could be attempted, the Supreme Court rejected this argument in 2016 in the case of SBI vs Santosh Gupta.

A Bench of Justices Kurian Joseph and Rohinton Nariman held that even though the marginal note called Article 370 temporary, this was not borne out by the Article itself. They contrasted it with Article 369, which temporarily allowed the Central government to pass laws on subjects reserved for states but specified a time limit of five years for this. Article 370 includes no such time limit.

They also pointed out that Article 370(3) described exactly how Article 370 could be abrogated – a recommendation of the J&K Constituent Assembly to the President of India. Till such a recommendation was made, Article 370 would continue to remain in force, and, as was held in Sampat Prakash, the dissolution of the J&K Constituent Assembly did not change this.

[You can read the SBI vs Santosh Gupta judgment of the Supreme Court here.]

So you’re telling me that it’s been known since 1968 that Article 370 isn’t temporary?

Yes.

And this was stated in a publicly available document that anyone could have accessed?

Yes.

And this was reiterated again in 2016 in another publicly accessible document?

Yes.

And that, therefore, all the speeches by the home minister and other politicians, all the explainers, all the op-ed pieces, all the WhatsApp forwards by Gupta uncle are...not true?

I think it’s safe to say that they are woefully ignorant at best and deliberately misleading at the worst.

So, what happens now?

Nothing, I guess. I mean, sure, some of this will get argued in the Supreme Court in the cases challenging what’s been done to Article 370. But the damage has already been done. People have already bought this blatant propaganda hook, line and sinker as a justification for what happened.

And much like old Cristobal Colon, the fact that they’ve got it all wrong will in no way stop the people driving this propaganda from reaping the rewards.