Why Nehru said ‘temporary’ Article 370 will go & how Congress stand on Kashmir differs now | CutTheClutter
A televised historical review revisited the Parliament debate of November 27, 1963, in which then Prime Minister Jawaharlal Nehru described Article 370's special provisions for Jammu and Kashmir as undergoing a "process of gradual erosion" and stated that it was intended as part of transitional, provisional constitutional arrangements.
The review traced the constitutional history of Jammu and Kashmir's integration, including the 1952 Delhi Agreement on the state's autonomy, the 1954 Constitution (Application to Jammu and Kashmir) Order, and subsequent changes to the state's institutional titles in 1965.
It also recapped the formal abrogation of Article 370's operative provisions on August 5-6, 2019, and the passage of the Jammu and Kashmir Reorganisation Act, 2019, which restructured the state into two Union Territories.
The 2019 abrogation was subsequently challenged before the Supreme Court, which upheld its constitutional validity in December 2023.
Article 370: Origin and Legal Character
Article 370 was incorporated into the Constitution of India in 1949-50 as a "temporary provision," placed under Part XXI ("Temporary, Transitional and Special Provisions"). It granted Jammu and Kashmir a special constitutional status, restricting Parliament's legislative competence over the state to matters specified in the Instrument of Accession (Defence, External Affairs, Communications) unless the state government concurred to extend other subjects. It also required the "concurrence" of the state government for extending other constitutional provisions to Jammu and Kashmir.
Key Details
- Placement: Part XXI of the Constitution, titled "Temporary, Transitional and Special Provisions."
- Drafted with significant input from Sheikh Abdullah's government and N. Gopalaswami Ayyangar, who piloted the provision in the Constituent Assembly in October 1949.
- Article 370(3) itself provided a mechanism for the President to declare the article inoperative, via a public notification, subject to the recommendation of the state's Constituent Assembly.
- The Constitution (Application to Jammu and Kashmir) Order, 1954, issued under Article 370(1), extended most central laws and provisions of the Indian Constitution to the state, subject to specified modifications.
Nehru's 1963 remarks in Parliament — that the special provisions were "eroding" over time and were never meant to be permanent — are a verified historical statement reflecting the framers' own understanding of Article 370 as a transitional, not permanent, constitutional device, a characterization later affirmed by the Supreme Court in 2023.
2019 Abrogation and the Jammu and Kashmir Reorganisation Act
On August 5, 2019, the President issued the Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272) under Article 370(1), superseding the 1954 Order and applying the entire Constitution of India to the state. On August 6, 2019, a Presidential notification (C.O. 273) — issued after a Rajya Sabha resolution recommending the change, since the state was then under President's Rule and Parliament exercised the state legislature's functions — declared all clauses of Article 370 inoperative except a modified Clause 1. Separately, Parliament passed the Jammu and Kashmir Reorganisation Act, 2019, bifurcating the state into two Union Territories: Jammu and Kashmir (with a legislature) and Ladakh (without one), effective October 31, 2019.
Key Details
- Presidential Order C.O. 272 (August 5, 2019): applied the full Constitution of India to Jammu and Kashmir under Article 370(1).
- Presidential Notification C.O. 273 (August 6, 2019): rendered Article 370 inoperative except a modified Clause 1, using the Rajya Sabha's resolution as a substitute for the state Constituent Assembly's "concurrence" (since that Assembly had dissolved in 1957 without recommending repeal).
- Jammu and Kashmir Reorganisation Act, 2019: created the Union Territories of Jammu and Kashmir and Ladakh, effective October 31, 2019.
- Supreme Court verdict: a five-judge Constitution Bench (Chief Justice D.Y. Chandrachud and Justices S.K. Kaul, Sanjiv Khanna, B.R. Gavai, and Surya Kant) unanimously upheld the abrogation on December 11, 2023, holding that Article 370 was always a temporary provision and that the process followed was constitutionally valid.
The historical review connects the 1963 characterization of Article 370 as an "eroding," transitional provision to its eventual formal termination in 2019 through the Article 370(3) presidential-notification route, and to the Supreme Court's 2023 confirmation that this reading of the provision's temporary character was constitutionally correct.
- Article 370 introduced: 1949-50, under Part XXI of the Constitution ("Temporary, Transitional and Special Provisions").
- Nehru's Parliament statement on Article 370's "gradual erosion": November 27, 1963.
- Constitution (Application to J&K) Order, 1954: issued under Article 370(1).
- Abrogation dates: Presidential Order C.O. 272 on August 5, 2019; Notification C.O. 273 on August 6, 2019.
- Jammu and Kashmir Reorganisation Act, 2019: created UTs of J&K and Ladakh, effective October 31, 2019.
- Supreme Court verdict upholding abrogation: December 11, 2023, by a unanimous five-judge Constitution Bench.