However, a very strange decision has been given in this regard by the Supreme Court in Sampat

Prakash v. State of Jammu and Kashmir (AIR 1970, SC 1118). The five-judge bench ruled that
(i) the wording of Article 370 makes no mention of the completion of the work of the Constituent
Assembly or its dissolution and (ii) the Constituent Assembly recommended that Article 370
should continue with one modification. The modification that the Court alluded to was the
Explanation of 15th November 1952 reproduced earlier in Section II (Text of Article 370) and
assigned footnote 22. The apex courts verdict implied that just because the Jammu & Kashmir
Constituent Assembly had so recommended, way back in November 1952, Article 370 should go
on and on and on. Perpetuating the wish of a political authority long after it was dissolved and
leaving no other mechanism for change is an impossible proposition to accept for any
Constitution in any democracy anywhere in the world. In the light of the above Supreme Court
verdict, putting
the onus of recommending cessation of Article 370 on the Jammu & Kashmir Constituent
Assembly rather than on the State Legislature may well be the blunder in Ayyangers proposal
contained in the second paragraph of clause (3) of the Article. Correcting that mistake should be
the first step towards stopping the eternal continuance of Article 370
By Nooranis own admission, the judiciary has held in Mohammed Maqbool Damnoo vs. the
State of J&K (1972 JKLR 319) that the essential feature of Article 370 is the necessity of the
concurrence of the State Government, not of the Constituent Assembly. Again, in S. Mubarik
Shah Naqashbandi vs. ITO, (AIR 1970 J&K 85) it was ruled that the provisions of Article 370
continued to remain in force even after the Constituent Assembly of the State enacted the States
Constitution.43 Hence, to assail executive orders under Article 370 issued after the Jammu &
Kashmir Constituent Assembly was wound up is to be irreverent to rulings of the countrys
judiciary.
The monster of Article 35A may well have merrily gone on from 1954 as it has the constitutional
authority of Article 370. But after 1973 it should have come under a big black cloud. It was in
that year that in Keshavananda Bharati v. State of Kerala (AIR 1973 SC 1461) the Supreme
Court ruled, inter alia, that equality of status and opportunity promised to all citizens of India in
the Preamble of the Constitution of India was, along with other ingredients therein, a part of the
basic structure of our Constitution and that any law, whether made in the exercise of the
constituent power or ordinary legislative power, will be struck down as void if it violates the
Constitution of Indias basic structure. Unfortunately, Article 35A has continued merrily,
undisturbed by the Supreme Courts landmark verdict of over three decades ago. Even the
National Human Rights Commission, which had sprinted to the Supreme Court as soon as it
heard of the verdict of acquittal of 21 persons in the Best Bakery trial at Vadodara in 2004, has
apparently remained mum on Article 35A that has abjectly humiliated thousands of citizens in
J&K state.
The Preamble is the place to begin. Though the word secular was added to the earlier Preamble
of the Indian Constitution by the 42nd Constitutional amendment in 1976, it is meant to be
omitted in respect of Jammu & Kashmir State. The latters Constitution of November 1956
therefore does not proclaim itself to be secular. What has been ruled by the Supreme Court as

part of the basic structure of the countrys constitutional framework1 is thus not true of Jammu
& Kashmir State. Ironically, the States top political leadership has criticised as violative of the
countrys secular credentials the RSSs idea of trifurcating the composite State into its three
major political entities of a Hindu-majority Jammu, a Buddhist-majority Ladakh and a Muslim
majority

KeshavanandaBharativ.StateofKerala,AIR1973SC1461andS.R.Bommaiv.UnionofIndia,(1994)3SCC1citedinTheConstitutionof
India,P.M.Bakshi,2002