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The indeterminate life of Article 370, part-I
by Arvind Lavakare |
What is the time-span of the word 'temporary?' Is it one week, one month, one year or one decade? Judging by the indifference of the National Commission to Review the Working of the Constitution towards 'Temporary, Transitional and Special Provisions' contained in Part XXI of our Constitution, even half a century would seem to justify the label of 'temporary.' Consequently, NCRWC's recommendations to the government early last month didn't contain anything that would disturb the status of Article 370 which -- applicable exclusively to Jammu and Kashmir State -- has remained a "Temporary" provision right from the time our Constitution became fully effective from January 26, 1950.
This indeterminate life of 'Temporary' Article 370 is in sharp contrast to the 'Temporary' power given to Parliament by Article 369. The latter permitted Parliament to make laws on certain subjects that were otherwise outside its jurisdiction, but this legislative power was to last only for the 'temporary' period specified by the Constitution framers as being of 'five years from the commencement of this Constitution.' However, the 'Temporary' Article 370 -- meant for J&K alone -- was not given such a straight jacket of time. That conspicuous inconsistency between two 'temporary' provisions of the same Constitution seems to have been bypassed by NCRWC's wise men.
Now the fundamental reason for an exclusive constitutional Article for J&K state was the Schedule annexed to the Instrument of Accession signed by that state's Maharaja on October 26, 1947. That Schedule specifically provided that the Dominion of India, to which the state had acceded, would be empowered to make laws for J&K only on matters pertaining to defence, external affairs and communications. And clause 7 of the Instrument of Accession itself did not bind the J&K state to accept any future Constitution of India.
rest of the article is at http://www.rediff.com/news/2002/may/29arvind.htm
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