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 court’s 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, puttingthe 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 Ayyanger’s 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 Noorani’s 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 State’s 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 country’s 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 India’s ‘basic structure’. Unfortunately, Article 35A has continued merrily, undisturbed by the Supreme Court’s 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 latter’s 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 country’s constitutional framework1 is thus not true of Jammu & Kashmir State. Ironically, the State’s top political leadership has criticised as violative of the country’s secular credentials the RSS’s 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

1 Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461 and S. R.

Bommai v. Union of India, (1994) 3 SCC 1 cited in The Constitution ofIndia, P. M. Bakshi, 2002