Supreme Court of India
DR. SHAH FAESAL AND ORS.versusUNION OF INDIA AND ANR.
- Citation
- 2020 INSC 253
- Decided
- 2 March 2020
- Disposal
- Disposed off
Holding
No conflict exists between Prem Nath Kaul and Sampat Prakash; Sampat Prakash is not per incuriam; therefore, the petitions are not referred to a larger Bench.
Summary
The petitioners challenged the President's Constitution Orders 272 and 273 (5 August 2019) that made the entire Indian Constitution applicable to Jammu & Kashmir, arguing that the orders were unconstitutional. They sought a reference to a larger Bench, contending that two earlier Supreme Court judgments—Prem Nath Kaul (1959) and Sampat Prakash (1970)—conflict on the nature and continuance of Article 370, and that Sampat Prakash was per incuriam for ignoring Prem Nath Kaul. The Court examined the doctrine of precedent, the rule of per incuriam, and the factual contexts of the two earlier cases, concluding that no irreconcilable conflict exists and that Sampat Prakash is not per incuriam. Consequently, the Court declined to refer the matter to a larger Bench and disposed of the petitions without addressing the merits of the constitutional orders.
Issues considered
- When can a matter be referred to a larger Bench?
- Whether there is a conflict between Prem Nath Kaul and Sampat Prakash that warrants a larger Bench reference?
- Whether Sampat Prakash is per incuriam for not considering Prem Nath Kaul
Legislation cited
- Constitution of Indias. Article 370
Subjects
Article 370Doctrine of precedentPer incuriamReference to larger BenchConstitution Orders 272/273Jammu & KashmirSupreme Court of IndiaConstitutional interpretation
Judgment
[2020] 3 S.C.R. 1115 1115
DR. SHAH FAESAL AND ORS. A
v.
UNION OF INDIA AND ANR.
(Writ Petition (Civil) No. 1099 of 2019)
MARCH 02, 2020 B
[N. V. RAMANA, SANJAY KISHAN KAUL,
R. SUBHASH REDDY, B. R. GAVAI AND SURYA KANT, JJ.]
Constitution of India – Art.370 – On August 5, 2019, two
Constitution Orders were issued by the President, in exercise of
C
power u/Art.370, which made the Constitution of India applicable
to the State of Jammu & Kashmir in its entirety, like other States in
India – Orders challenged – Contentions raised at the outset that
the present matter needs to be referred to larger Bench as there are
contrary opinions by two different Constitution Benches in Prem
Nath Kaul v. State of Jammu and Kashmir reported as [1959] Suppl. D
SCR 270 and Sampat Prakash v. State of Jammu and Kashmir reported
as [1970] SCR 365 on the interpretation of Art.370 and that Sampat
Prakash is per incuriam as it did not consider Prem Nath Kaul – Present
order confined to preliminary issue of reference – No issue
considered on merits – Held: Decision rendered by a coordinate
E
Bench is binding on the subsequent Benches of equal or lesser
strength – However, judgments cannot be interpreted in a vacuum,
separate from their facts, context – In Prem Nath Kaul, Court had to
determine the legislative competence of the Yuvaraj, in passing a
particular enactment passed during the interregnum period, before
the formulation of the Constitution of State of Jammu & Kashmir, F
but after coming into force of the Constitution of India –
Observations made regarding the importance given to decision of
the Constituent Assembly of the State of Jammu & Kashmir needs to
be read in the light of these facts – It was indicated that the
Constituent Assembly’s decision u/Art.370(2) was final – This finality
G
has to be read as being limited to those decisions taken by the State
Govt. u/Art.370 prior to the convening of the Constituent Assembly
of the State, in line with the language of Art.370(2) – Prem Nath
Kaul did not discuss the continuation/cessation of operation of
Art.370 after the dissolution of the Constituent Assembly of the State
H
1115
1116 SUPREME COURT REPORTS [2020] 3 S.C.R.
A – This issue was not in question before the Court, unlike in Sampat
Prakash case where the contention was specifically made and refuted
by the Court – Rule of per incuriam being an exception to the doctrine
of precedents is only applicable to the ratio of the judgment – There
are no contrary observations made in Sampat Prakash case to that
of Prem Nath Kaul – Sampat Prakash case is not per incuriam – No
B
conflict between Prem Nath Kaul and Sampat Prakash – No reason
to refer these petitions to a larger Bench on the questions considered
– Doctrine of Precedents and stare decisis.
Practice & Procedure – Doctrine of Precedents – Rule of per
incuriam, an exception – Applicability of – Held: Rule of per incuriam
C has been developed as an exception to the doctrine of judicial
precedent – Literally, it means a judgment passed in ignorance of a
relevant statute or any other binding authority – Rule of per incuriam
is only applicable to the ratio of the judgment – Constitution of
India – Art.370.
D Words & Expressions –‘‘ratio decidendi”; “obiter dictum” –
Meaning of – Discussed – Constitution of India – Art.370.
Disposing of the petitions, the Court
HELD: 1.1 Doctrine of precedents and stare decisis are
E the core values of legal system. They form the tools which further
the goal of certainty, stability and continuity in legal system.
Arguably, judges owe a duty to the concept of certainty of law,
therefore they often justify their holdings by relying upon the
established tenets of law. When a decision is rendered by this
Court, it acquires a reliance interest and the society organizes
F itself based on the present legal order. When substantial judicial
time and resources are spent on references, the same should
not be made in a casual or cavalier manner. It is only when a
proposition is contradicted by a subsequent judgment by a Bench
of same strength, or it is shown that the proposition laid down
G has become unworkable or contrary to a well-established principle,
that a reference will be made to a larger Bench. [Paras 18,
19][1129-B-D]
1.2 A judgment of this Court can be distinguished into two
parts: ratio decidendi and the obiter dictum. The ratio is the basic
H
DR. SHAH FAESAL AND ORS. v. UNION OF INDIA AND ANR. 1117
essence of the judgment, and the same must be understood in A
the context of the relevant facts of the case. [Para 25][1131-F-G]
1.3 Judgments cannot be interpreted in a vacuum, separate
from their facts and context. Observations made in a judgment
cannot be selectively picked in order to give them a particular
meaning. The Court in the Prem Nath Kaul case had to determine B
the legislative competence of the Yuvaraj, in passing a particular
enactment. The enactment was passed during the interregnum
period, before the formulation of the Constitution of State of
Jammu and Kashmir, but after coming into force of the
Constitution of India. The observations made by the Constitution
Bench in this case, regarding the importance given to the decision C
of the Constituent Assembly of the State of Jammu and Kashmir
needs to be read in the light of these facts. The framework of
Article 370(2) of the Indian Constitution was such that any
decision taken by the State Government, which was not an elected
body but the Maharaja of the State acting on the advice of the D
Council of Ministers which was in office by virtue of the Maharaja’s
proclamation dated March 5, 1948, prior to the sitting of the
Constituent Assembly of the State, would have to be placed before
the Constituent Assembly, for its decision as provided under
Article 370(2) of the Constitution. The rationale for the same is
clear, as the task of the Constituent Assembly was to further E
clarify the scope and ambit of the constitutional relationship
between the Union of India and the State of Jammu and Kashmir,
on which the State Government as defined under Article 370 might
have already taken some decisions, before the convening of the
Constituent Assembly, which the Constituent Assembly in its F
wisdom, might ultimately not agree with. Hence, the Court in the
case of Prem Nath Kaul indicated that the Constituent Assembly’s
decision under Article 370(2) was final. This finality has to be
read as being limited to those decisions taken by the State
Government under Article 370 prior to the convening of the
Constituent Assembly of the State, in line with the language of G
Article 370(2). The Constitution Bench in the Prem Nath Kaul
case did not discuss the continuation or cessation of the operation
of Article 370 of the Constitution after the dissolution of the
Constituent Assembly of the State. This was not an issue in
H
1118 SUPREME COURT REPORTS [2020] 3 S.C.R.
A question before the Court, unlike in the Sampat Prakash case
where the contention was specifically made before, and refuted
by, the Court. This Court sees no reason to read into the Prem
Nath Kaul case an interpretation which results in it being in
conflict with the subsequent judgments of this Court, particularly
when an ordinary reading of the judgment does not result in such
B
an interpretation. Thus, there is no conflict between the judgments
in the Prem Nath Kaul case and the Sampat Prakash case. The
plea of the counsel to refer the present matter to a larger Bench
on this ground is therefore rejected. [Paras 42-45][1141-G-H;
1142-A-H; 1143-A]
C 1.4 The rule of per incuriam being an exception to the
doctrine of precedents is only applicable to the ratio of the
judgment. The same having an impact on the stability of the legal
precedents must be applied sparingly, when there is an
irreconcilable conflict between the opinions of two co-ordinate
D Benches. However, there are no contrary observations made in
the Sampat Prakash case to that of Prem Nath Kaul, accordingly,
the case of Sampat Prakash is not per incuriam. No reason is
seen to refer these petitions to a larger Bench on the questions
considered. [Paras 46, 47][1143-B-D]
E A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602 : [1988]
1 Suppl. SCR 1 – followed.
Chandra Prakash v. State of U.P. (2002) 4 SCC 234 :
[2002] 2 SCR 913 ; National Insurance Company
Limited v. Pranay Sethi (2017) 16 SCC 680 : [2017] 13
F SCR 100 ; Union of India v. Dhanwanti Devi (1996) 6
SCC 44 : [1996] 5 Suppl. SCR 32 ; Sundeep Kumar
Bafna v. State of Maharashtra (2014) 16 SCC 623 :
[2014] 4 SCR 486 ; Punjab Land Development and
Reclamation Corpn. Ltd. v. Presiding Officer, Labour
Court, Chandigarh (1990) 3 SCC 682 : [1990] 3 SCR
G 111 – relied on.
Sampat Prakash v. State of Jammu and Kashmir AIR
1970 SC 1118 : [1970] SCR 365 – held not per
incuriam.
H
DR. SHAH FAESAL AND ORS. v. UNION OF INDIA AND ANR. 1119
Prem Nath Kaul v. State of Jammu and Kashmir AIR A
1959 SC 749 : [1959] Suppl. SCR 270 ; Mohd.
Maqbool Damnoo v. State of Jammu and Kashmir
(1972) 1 SCC 536 : [1972] 2 SCR 1014 ; State Bank
of India v. Santosh Gupta (2017) 2 SCC 538 : [2016] 9
SCR 985 – referred to.
B
Street Tramways v. London County Council [1898] A.C.
375 ; Radcliffe v. Ribbel Motor Service Ltd. [1939] A.C.
215 ; Ex Parte Brisbane Tramways Co. Ltd. (No. 1)
[1914] 18 C.L.R 54 ; Quinn v. Leathem 1901 AC 495
(HL) ; Young v. Bristol Aeroplane Co. Ltd. 1944 KB
718 (CA) – referred to. C
Congressional Record- Senate, Vol.156, Pt.7, 10018
(June 7, 2010) ; Salmond on Jurisprudence (P.J.
Fitzgerald ed., 12th Edn. 1966), p.147 ; Halsbury’s
Laws of England 3 rd edn., Vol.22, para 1687, pp.799-
800 – referred to. D
Case Law Reference
[1959] Suppl. SCR 270 referred to Para 8
[1970] SCR 365 held not per incuriam Para 8
E
[1972] 2 SCR 1014 referred to Para 10
[2016] 9 SCR 985 referred to Para 13
[2002] 2 SCR 913 relied on Para 19
[2017] 13 SCR 100 relied on Para 23
F
[1996] 5 Suppl. SCR 32 relied on Para 25
[1988] 1 Suppl. SCR 1 followed Para 29
[2014] 4 SCR 486 relied on Para 31
[1990] 3 SCR 111 relied on Para 32
G
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)
No. 1099 of 2019.
[Under Article 32 of The Constitution of India]
With
H
1120 SUPREME COURT REPORTS [2020] 3 S.C.R.
A Writ Petition (C) Nos. 396, 756 of 2017, 398, 924, 1092, 1162 of
2018, 1013, 1082, 1048, 1068, 1037, 1062, 1070, 1104, 1165, 1210, 1222,
1268, 1368 of 2019, S.L.P.(C) No. 19618 of 2017.
K.K. Venugupal, AG, Tushar Mehta, SG, Vikramjit Banerjee,
K.M. Nataraj, ASGs, D.C. Raina, AG for UT OF J&K, Dr. Rajeev
B Dhavan, Dinesh Dwivedi, Shekhar Naphade, Prashanto Sen, Ranjit
Kumar, Ravindra Raizada, C.U. Singh, Sanjay Parikh, P. Chidambaram,
Jaideep Gupta, Purushaindra Kaurav, Gopal Sankaranarayanan,
P.V. Surendranath, Z.A. Shah, R.K. Raizada, Vinay Navare, Sr. Advs.,
Ms. Pritha Srikumar, Sulabh Rewari, Aditya Chatterjee, Ms. Arunima
Kedia, Amrutanshu Dash, K. K. Mohan, Prateek Dwivedi, Krishnam
C Mishra, Yasharth Kant, Nishant Singh, Barun Kumar Sinha, Mrs. Pratibha
Sinha, Anil Kumar, Rakesh Muddgal, Rameshwar Prasad Goyal, Vishnu
Shankar Jain, Anil Kumar Jha, Ms. Vijaya Lakshmi Jha, Ms. Jyoti Kumari,
Ms. Nitya Ramakrishnan, Shankar Narayan, Prasanna S., Shadan Farasat,
Ms. Malavika Prasad, Jaya Vardhan Singh, Ms. Jahanvi Sindhu,
D Ms. Shruti Narayan, Gautam Bhatia, Aakarsh Kamra, Bimal Roy Jad,
N.G. Dev, Ms. Shikha Dixit, Sumit Moza, Ranvir Singh, Kaustav Som,
Ankur Singh, Ms. S. Lakshmi Iyer, Ms. Aishwarya Dash, Kaustubh
Singh, Arjun Krishnan, Ms. Divya Roy, Yashraj Singh Bundela, Surjeet
Nehra, Sarthak Raizada, Apoorv Shukla, Aditya Gaggar, Vishal Arun,
Santosh, Saif Mahmood, Vivek Agarwal, Ms. Lavanya Bisht, D.
E Abhinav Rao, Abhimanue Shrestha, D. Mahesh Babu, Shishir Pinaki,
Rajiv Kumar Sinha, P. Nirup, Ganesan Subbian, Gautam Bhatia, Ms.
Malvika Prasad, Sourav Gupta, Ms. Anandita Mitra, Ms. Suchitra
Hrangkhawl, Katubadi Ismail, Wani Yasmeen, Anirudh Sharma, Surjeet
Singh, Rahul Tanwani, Ms. Anuradha Mishra, Ms. Kanti, Soayib Qureshi,
F Dhananjaya Sud, Shrutanjaya Bhardwaj, Vishal Sinha, Ms. Charu
Ambwani, Ms. Gayatri Verma, Dharmendra Kumar Sinha, Vikrant Yadav,
Puneet Chugh, Ashok Kumar Yadav, Gaurav Dhingra, Ms. Indira, Syed
Imtiaz Ali, M. C. Dhingra, Ashwani Kumar Dubey, Pallav Mongia Mohd.
Irshad Hanif, Tushar Gupta, P. V. Dinesh, Ms. Sindhu T.P., Mukund P.
Unny, Bineesh K., Ashwini Kumar Singh, Ms. Shilpa Singh, Tripurari
G Ray, Balwant Singh Billowria, Atul Wadera, Parveen Kumar, Vijay Pratap
Singh, Vivekanand Singh, Nitish Shekhar, Kanu Agarwal, Ankur Talwar,
Rajat Nair, Siddhartha Sinha, Prashant Rawat, Ayush, Ms. Shruti Agarwal,
A.K. Sharma, Bimal Roy Jad, M. Shoeb Alam, Debasis Misra, Mohit
Chaudhary, Chaudhary Zulfikar Ali, Ms. Puja Sharma, Kunal Sachdeva,
H Imran Ali, Parveen Kumar, Ms. Garima Sharma, Ms. Sristi Gupta, Talha
DR. SHAH FAESAL AND ORS. v. UNION OF INDIA AND ANR. 1121
Abdul Rahman, Mohd. Shaz Khan, Suhail Malik, Neeraj Srivastava, A
Asutosh Sharma, Manju Jaitley, M. J. Paul, Ashok Mathur, B. V. Balaram
Das, B. Krishna Prasad, Ms. Shashi Juneja, Satyajeet Kumar, Anupam
Raina, Sunando Raha, Ms. Resmitha R. Chandran, Sawan Kumar Shukla,
Subhash K.R. Chandran, Ummar Farooq, Adil Muneer Andrabi,
Charanjeet Chanderpal, Anil Kumar, Barun Kumar Sinha, Mrs. Pratibha
B
Sinha, Rakesh Muddgal, B. K. Satija, Abhijeet Shah, Omprakash Ajitsingh
Parihar, Dr. Nishesh Sharma, Ms. Harvinder Chowdhury, Adil Asimi,
Bilal Ahmad, Hamid Shafi, Anwar-ul-Islam, Tufail Qadri, Sanjay K.
Chadda, Dharmendra Kumar Sinha, Ms. Archana Pathak Dave, Satya
Mitra, D.K. Dubey, Santosh Kumar, Vishal Arun, Manoj K. Mishra,
Umesh Dubey, Jyoti Mishra, Bheem Pratap Singh, Sukumar, Mahesh C
Thakur, Ms. Madhusmita Bora, Riju Raj Singh Jamwal, Pawan Kishore
Singh, Apoorv Shukla, Pattabhiram, Santosh Kumar Pandey, K. Krishna
Kumar, Ishwariprasad Bagaria, Jog Singh, Rahul G. Tanwani, Manan
Sanghai, V.C. Shukla, Prashant Singh, Kanti, Vinod Prajapati,
Ms. Sindoora VNL, Ms. Aditi Tripathi, Ms. Seoula Vas, Parthsarthi Saraf,
D
Tarun Gulia, Aishvary Vikram, Sushant Bajaj, Nitesh Ranjan, Anantha
Narayana M.G., Abhimanyu Tewari, Irshad Ahmad, P. S. Sudheer, Bharat
Sood, Rishi Maheshwari, Ms. Anne Mathew, Ms. Shruti Jose,
Ms. Adeeba Mujahid, R.D. Upadhyay, V. K. Biju, Shaji George, Abhay
Pratap Singh, Sahil Tagotra, K. V. Muthu Kumar, Ankit Tripathi, Sandeep
Singh, Vishal Arun, Ms. Sarthak Raizada, Advs. for the appearing parties. E
Manohar Lal Sharma, Petitioner-in-person.
Shakir Shabir, Petitioner-in-person.
Intervenor-in-person
The following Order of the Court was passed: F
ORDER
1. These cases pertain to the constitutional challenge before this
Court as regards to two Constitution Orders issued by the President of
India in exercise of his powers under Article 370 of the Constitution of
G
India.
2. At the outset, learned senior counsel appearing for one of the
Petitioners in W.P. (C) No. 1013/19 and Petitioner in W.P. (C) 1368/19
raised the contention that the present matter needs to be referred to a
larger Bench as there were contrary opinions by two different
H
1122 SUPREME COURT REPORTS [2020] 3 S.C.R.
A Constitution Benches on the interpretation of Article 370 of the
Constitution.This order is confined to the limited preliminary issue of
whether the matter should be referred to a larger Bench. We have not
considered any issue on the merits of the dispute.
3. A brief introduction to the issue to set the context for this order
B is that after the late Maharaja of Kashmir had entered into a treaty of
accession with the Indian State, Article 370 was incorporated into the
Indian Constitution, which states as follows:
370. Temporary provisions with respect to the State of
Jammu and Kashmir
C (1) Notwithstanding anything in this Constitution,—
(a) the provisions of article 238 shall not apply in relation to the
State of Jammu and Kashmir;
(b) the power of Parliament to make laws for the said State shall
D be limited to—
(i) those matters in the Union List and the Concurrent List which,
in consultation with the Government of the State, are declared by
the President to correspond to matters specified in the Instrument
of Accession governing the accession of the State to the Dominion
of India as the matters with respect to which the Dominion
E
Legislature may make laws for that State; and
(ii) such other matters in the said Lists as, with the concurrence
of the Government of the State, the President may by order
specify.
F Explanation [1950 wording]: For the purposes of this article, the
Government of the State means the person for the time being
recognised by the President as the Maharaja of Jammu and
Kashmir acting on the advice of the Council of Ministers for the
time being in office under the Maharaja’s Proclamation dated the
fifth day of March, 1948;
G
Explanation [1952 wording]: For the purposes of this article, the
Government of the State means the person for the time being
recognized by the President on the recommendation of the
Legislative Assembly of the State as the Sadar-i-Riyasat (now
Governor) of Jammu and Kashmir, acting on the advice of the
H Council of Ministers of the State for the time being in office.
DR. SHAH FAESAL AND ORS. v. UNION OF INDIA AND ANR. 1123
(c) The provisions of article 1 and of this article shall apply in A
relation to that State;
(d) Such of the other provisions of this Constitution shall apply in
relation to that State subject to such exceptions and modifications
as the President may by order specify:
Provided that no such order which relates to the matters specified B
in the Instrument of Accession of the State referred to in paragraph
(i) of sub-clause (b) shall be issued except in consultation with the
Government of the State:
Provided further that no such order which relates to matters other
than those referred to in the last preceding proviso shall be issued C
except with the concurrence of that Government.
(2) If the concurrence of the Government of the State referred to
in paragraph (ii) of sub-clause (b) of clause (1) or in the second
provision to sub-clause (d) of that clause be given before the
Constituent Assembly for the purpose of framing the Constitution D
of the State is convened, it shall be placed before such Assembly
for such decision as it may take thereon.
(3) Notwithstanding anything in the foregoing provisions of this
article, the President may, by public notification, declare that this
article shall cease to be operative or shall be operative only with E
such exceptions and modifications and from such date as he may
specify:
Provided that the recommendation of the Constituent Assembly
of the State referred to in clause (2) shall be necessary before the
President issues such a notification. F
Since India’s independence, this Article has remained in the
Constitution and has been invoked as and when required.
4. On 20.12.2018,President’s Rulewas imposed in exercise of
powers under Article 356 of the Constitution of Indiain the State of Jammu
and Kashmir, which was subsequently extended on 03.7.2019. G
5. On August 5, 2019, two Constitution Orders were issued by the
President in exercise of his power under Article 370, being C.O. Nos.
272 and 273, which are extracted below:
C.O. 272 of 2019 H
1124 SUPREME COURT REPORTS [2020] 3 S.C.R.
A MINISTRY OF LAW AND JUSTICE
(Legislative Department) NOTIFICATION
New Delhi, the 5th August, 2019
G.S.R.551(E).— the following Order made by the President is
published for general information:-
B
THE CONSTITUTION (APPLICATION TO
JAMMU AND KASHMIR) ORDER, 2019
C.O. 272
In exercise of the powers conferred by clause (1) of article 370
of the Constitution, the President, with the concurrence of the
C
Government of State of Jammu and Kashmir, is pleased to make
the following Order:—
1. (1) This Order may be called the Constitution (Application to
Jammu and Kashmir) Order, 2019.
D (2) It shall come into force at once, and shall thereupon supersede
the Constitution (Application to Jammu and Kashmir) Order, 1954
as amended from time to time.
2. All the provisions of the Constitution, as amended from time to
time, shall apply in relation to the State of Jammu and Kashmir
E and the exceptions and modifications subject to which they shall
so apply shall be as follows:—
To article 367, there shall be added the following clause, namely:—
“(4) For the purposes of this Constitution as it applies in relation to
the State of Jammu and Kashmir—
F
(a) references to this Constitution or to the provisions thereof
shall be construed as references to the Constitution or the
provisions thereof as applied in relation to the said State;
(b) references to the person for the time being recognized
by the President on the recommendation of the Legislative
G
Assembly of the State as the Sadar-i-Riyasat of Jammu and
Kashmir, acting on the advice of the Council of Ministers of the
State for the time being in office, shall be construed as references
to the Governor of Jammu and Kashmir;
H
DR. SHAH FAESAL AND ORS. v. UNION OF INDIA AND ANR. 1125
(c) references to the Government of the said State shall be A
construed as including references to the Governor of Jammu and
Kashmir acting on the advice of his Council of Ministers;
and
(d) in proviso to clause (3) of article 370 of this Constitution,
the expression “Constituent Assembly of the State referred to in B
clause (2)” shall read “Legislative Assembly of the State”.”
C.O. 273 of 2019
MINISTRY OF LAW AND JUSTICE
(Legislative Department) NOTIFICATION C
New Delhi, the 6th August, 2019
G.S.R. 562(E).— The following Declaration made by the President
is notified for general information:—
DECLARATION UNDER ARTICLE 370(3)
D
OF THE CONSTITUTION
C.O. 273
In exercise of the powers conferred by clause (3) of article 370
read with clause (1) of article 370 of the Constitution of India, the
President, on the recommendation of Parliament, is pleased to
declare that, as from the 6th August, 2019, all clauses of the said E
article 370 shall cease to be operative except the following which
shall read as under, namely:—
“370. All provisions of this Constitution, as amended from time to
time, without any modifications or exceptions, shall apply to the
State of Jammu and Kashmir notwithstanding anything contrary F
contained in article 152 or article 308 or any other article of this
Constitution or any other provision of the Constitution of Jammu
and Kashmir or any law, document, judgment, ordinance, order,
by-law, rule, regulation, notification, custom or usage having the
force of law in the territory of India, or any other instrument, G
treaty or agreement as envisaged under article 363 or otherwise.”
6. These Constitution Orders made the Constitution of India
applicable to the State of Jammu and Kashmirin its entirety, like other
States in India.
H
1126 SUPREME COURT REPORTS [2020] 3 S.C.R.
A 7. Challenging the constitutionality of the aforesaid orders,
Mr. Raju Ramachandran, learned senior counsel, has argued on the
validity of the same. However, as mentioned above, Mr. Dinesh Dwivedi
and Mr. Sanjay Parikh, learned senior counsel, sought a reference to a
larger Bench. Therefore, this Court is required to hearthe issue of
reference as a preliminary question.
B
Contentions
8. Learned senior advocate Mr. DineshDwivedi, after placing
reliance uponthe Constituent Assembly debates and interpreting the
language of Article 370, submitted that Article 370 was a transitory
C provision, which provided for an interim arrangement between the State
of Jammu and Kashmir and the Union of India. It was the Constituent
Assembly of Jammu and Kashmir which took a final decision on the
form of Government the State of Jammu and Kashmir should adopt.
The counsel argued that this Court, in the case of Prem Nath Kaul v.
State of Jammu and Kashmir, AIR 1959 SC 749,after considering the
D various issues, held that Article 370 was temporary in nature, but the
subsequent judgment of Sampat Prakash v. State of Jammu and
Kashmir, AIR 1970 SC 1118 reversed the aforesaid position, recognizing
Article 370 as a permanent provision giving perennial power to the
President to regulate the relationship between the Union and the State.
E Learned senior counsel contended that this conflict needs reconsideration
by a larger Bench.
9. Learned senior advocate Mr. Sanjay Parikh submitted that after
the framing of the Constitution of Jammu and Kashmir, the first judgment
rendered by this Court was by a Bench of five-judges in Prem Nath
F Kaul (supra).This Court, after widely discussing the historical background
and objective behind the introduction of Article 370, held that the
constitutional relationship between the State of Jammu and Kashmir
and the Union of India should be finally decided by the Constituent
Assembly of the State and, therefore, the same has to be treated as a
temporary provision.
G
10. The learned senior counsel further submitted that, the
subsequent cases of Sampat Prakash (supra) and Mohd. Maqbool
Damnoo v. State of Jammu and Kashmir, (1972) 1 SCC 536, have not
considered the earlier judgment of Prem Nath Kaul (supra).On the
contrary, this Court in Sampat Prakash (supra) held that neither the
H Constituent Assembly nor the President ever made any declaration that
DR. SHAH FAESAL AND ORS. v. UNION OF INDIA AND ANR. 1127
Article 370 has ceased to be operative. Moreover, this Court in the A
aforesaid case further held that in the light of the proviso to Article 368,
the President under Article 370 is required to exercise his powers from
time to time in order to bring into effect constitutional amendmentsin the
State of Jammu and Kashmir, under Article 368. Therefore, by virtue of
the aforesaid mechanism, it cannot be said that Article 370 was temporary.
B
11. Furthermore, in the case of Mohd. Maqbool Damnoo (supra),
this Court, while interpreting Article 370, ignored the interpretation
rendered in Prem Nath Kaul (supra). The aforesaid case also did not
decide as to whether Article 370 can continue after the Constitution of
Jammu and Kashmir was enacted. The learned senior counsel finally
submitted that concurrence under Article 370(1)(d) was subject to C
ratification by the Constituent Assembly and therefore, upon the
dissolution of the Constituent Assembly, this power cannot be exercised.
12. Learned senior advocate, Mr. Zafar Shah, representing the
Jammu and Kashmir High Court Bar Association on the necessity of
reference submitted that while there is no direct conflict between the D
aforesaid two five-judge Bench decisions of Prem Nath Kaul (supra)
and Sampat Prakash (supra) however if it is held that Prem Nath
Kaul (supra) declared that Article 370 as temporary, then there exists a
conflict with the subsequent holding of Sampat Prakash (supra).
13. The learned Attorney General submitted that the challenge on E
the ground of an inconsistency between the decisions in Prem Nath
Kaul (supra) and Sampat Prakash (supra)is not sustainable. The
judgments must be read in their context. The earlier decision of Prem
Nath Kaul (supra) was regarding legislative capacity of the Yuvaraj
and the Court never intended on deciding upon the nature of Article 370. F
However, this Court for the first time in the case of Sampat Prakash
(supra) dealt with the issue of continuance of powers under Article 370
after the dissolution of the Constituent Assembly of the State. In order
to substantiate his contentions, he relied upon the subsequent decision of
State Bank of India v. Santosh Gupta, (2017) 2 SCC 538 wherein this
Court, after placing reliance upon the earlier decisions, concluded that G
the Constitution of Jammu and Kashmir is subordinate to that of the
Constitution of India.
14. The learned Solicitor General supported the arguments rendered
by the learned Attorney General and submitted that a co-ordinate Bench
H
1128 SUPREME COURT REPORTS [2020] 3 S.C.R.
A cannot refer the matter to a larger Bench on minor inconsistencies. Rather,
the decisions rendered by an earlier co-ordinate Bench are always binding
on the subsequent Benches of equal strength. However, if the subsequent
Bench expresses doubt on the correctness of the earlier decision rendered
by a Bench of equal strength, the same has to be referred to a larger
Bench.
B
15. Learned senior advocate, Dr. Rajeev Dhavan, appearing for
the Petitioner in W.P. (C) No. 1165 of 2019, while opposing the reference,
submitted that it is not legally tenable to argue that Sampat Prakash
(supra) is per incuriam as it has not considered the earlier decision of
Prem Nath Kaul (supra) as the decisions should be studied in their
C context and hence have limited application. Moreover, the present case
deals with various other issues which have not been considered by the
previous Bench. The submissions made by Dr. Rajeev Dhavan, learned
senior counsel were supported by learned senior advocates C.U. Singh,
Shekhar Naphadeand Gopal Sankaranarayanan, who submitted that the
D alleged conflict in the aforesaid judgments do not mandate reference.
16. Based on the submissions of the learned senior counsel, the
following questions of law which can be formulated herein are as follows.
i. When can a matter be referred to a larger Bench?
E ii. Whether there is a requirement to refer the present matter to
a larger Bench in view of the allegedcontradictory views of
this Court in Prem Nath Kaul case (supra) and Sampat
Prakash case (supra)?
iii. Whether Sampat Prakash case (supra) is per incuriam for
F not taking into consideration the decision of the Court in Prem
Nath Kaul case (supra)?
17. This Court’s jurisprudence has shown that usually the Courts
do not overrule the established precedents unless there is a social,
constitutional or economic change mandating such a development. The
numbers themselves speak of restraint and the value this Court attaches
G
to the doctrine of precedent. This Court regards the use of precedent as
indispensable bedrock upon which this Court renders justice. The use of
such precedents, to some extent, creates certainty upon which individuals
can rely and conduct their affairs. It also creates a basis for the
development of the rule of law. As the Chief Justice of the Supreme
H Court of the United States, John Roberts observed during his Senate
DR. SHAH FAESAL AND ORS. v. UNION OF INDIA AND ANR. 1129
confirmation hearing, “It is a jolt to the legal system when you overrule A
a precedent. Precedent plays an important role in promoting stability
and even-handedness.” 1
18. Doctrine of precedents and stare decisis are the core values
of our legal system. They form the tools which further the goal of certainty,
stability and continuity in our legal system. Arguably, judges owe a duty B
to the concept of certainty of law, therefore they often justify their
holdings by relying upon the established tenets of law.
19. When a decision is rendered by this Court, it acquires a reliance
interestand the society organizes itself based on the present legal
order.When substantial judicial time and resources are spent on C
references, the same should not be made in a casual or cavalier manner.
It is only when a proposition is contradicted by a subsequent judgment
by a Bench of same strength, or it is shown that the proposition laid
down has become unworkable or contrary to a well-established principle,
that a reference will be made to a larger Bench. In this context, a five-
Judge Bench of this Court in Chandra Prakash v. State of U.P., (2002) D
4 SCC 234, after considering series of earlier ruling reiterated that:
“22. … The doctrine of binding precedent is of utmost importance
in the administration of our judicial system. It promotes certainty
and consistency in judicial decisions. Judicial consistency
promotes confidence in the system, therefore, there is this E
need for consistency in the enunciation of legal principles
in the decisions of this Court.”
(emphasis supplied)
20. At the extreme end of this doctrine, we have the example of
the House of Lords, wherein until 1966 it never overruled its decisions F
but only distinguished them. It was said that an erroneous decision of the
House of Lords could be set right only by an Act of Parliament (refer
Street Tramways v. London County Council, [1898] A.C. 375 and
Radcliffe v. Ribbel Motor Service Ltd., [1939] A.C. 215).
21. It is only after 1966, due to pressure and the prevailing socio- G
economic structure that the House of Lords finally decided to exercise
the power of overruling. From then on, there has been a continuous
evolution of guidelines which have modified the basis as to when the
House of Lords could overrule its earlier decisions.
1
Congressional Record—Senate, Vol. 156, Pt. 7, 10018 (June 7, 2010)
H
1130 SUPREME COURT REPORTS [2020] 3 S.C.R.
A 22. It may be necessary to quote the opinion of Chief Justice
Griffith of the High Court of Australia in the Ex Parte Brisbane
Tramways Co. Ltd. (No. 1), [1914] 18 C.L.R 54:
“In my opinion, it is impossible to maintain as an abstract
proposition that Court is either legally or technically bound
B by previous decisions. Indeed, it may, in a proper case,
be its duty to disregard them. But the rule should be applied
with great caution, and only when the previous decision is
manifestly wrong, as, for instance, if it proceeded upon
the mistaken assumption of the continuance of a repealed
or expired Statute, or is contrary to a decision of another
C Court which this Court is bound to follow; not, I think,
upon a mere suggestion, that some or all of the members
of the later Court might arrive at a different conclusion if
the matter was res integra. Otherwise there would be great
danger of want of continuity in the interpretation of law.”
D In the same case, Barton, J. observed as follows:
“ ....I would say that I never thought that it was not open
to this Court to review its previous decisions upon good
cause. The question is not whether the Court can do so,
but whether it will, having due regard to the need for
E continuity and consistency in the judicial decision.
Changes in the number of appointed Justices can, I take
it, never of themselves furnish a reason for review... But
the Court can always listen to argument as to whether it
ought to review a particular decision, and the strongest
F reason for an overruling is that a decision is manifestly
wrong and its continuance is injurious to the public
interest”.
23. This brings us to the question, as to whether a ruling of a co-
ordinate Bench binds subsequent co-ordinate Benches. It is now a settled
G principle of law that the decisions rendered by a coordinate Bench is
binding on the subsequent Benches of equal or lesser strength. The
aforesaid view is reinforced in the National Insurance Company
Limited v. Pranay Sethi, (2017) 16 SCC 680 wherein this Court held
that:
59.1. The two-Judge Bench in Santosh Devi [Santosh
H
Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 7] should
DR. SHAH FAESAL AND ORS. v. UNION OF INDIA AND ANR. 1131
have been well advised to refer the matter to a larger Bench as it A
was taking a different view than what has been Stated in Sarla
Verma [Sarla Verma v. DTC, (2009) 6 SCC 121] , a judgment by
a coordinate Bench. It is because a coordinate Bench of the
same strength cannot take a contrary view than what has
been held by another coordinate Bench.
B
(emphasis supplied)
24. The impact of non-consideration of an earlier precedent by a
coordinate Bench is succinctly delineated by Salmond2 in his book in the
following manner:
…A refusal to follow a precedent, on the other hand, is an act of C
co-ordinate, not of superior, jurisdiction. Two courts of equal
authority have no power to overrule each other’s decisions.
Where a precedent is merely not followed, the result is not
that the later authority is substituted for the earlier, but
that the two stand side by side conflicting with each other. D
The legal antinomy thus produced must be solved by the
act of a higher authority, which will in due time decide
between the competing precedents, formally overruling one
of them, and sanctioning the other as good law. In the
meantime the matter remains at large, and the law uncertain.
E
(emphasis supplied)
25. In this line, further enquiry requires us to examine, to what
extent does a ruling of co-ordinate Bench bind the subsequent Bench.
Ajudgment of this Court can be distinguished into two parts: ratio
decidendi and the obiter dictum.The ratio is the basic essence of the F
judgment, and the same must be understood in the context of the relevant
facts of the case.The principle difference between the ratio of a case,
and the obiter, has been elucidated by a three-Judge Bench decision of
this Court in Union of India v. Dhanwanti Devi, (1996) 6 SCC 44
wherein this Court held that:
G
9. …It is not everything said by a Judge while giving judgment
that constitutes a precedent. The only thing in a Judge’s
decision binding a party is the principle upon which the case
is decided and for this reason it is important to analyse a
2
Salmond on Jurisprudence (P.J. Fitzgerald ed., 12th edn., 1966), p. 147. H
1132 SUPREME COURT REPORTS [2020] 3 S.C.R.
A decision and isolate from it the ratio decidendi. … A decision
is only an authority for what it actually decides. ….The
concrete decision alone is binding between the parties to it, but it
is the abstract ratio decidendi, ascertained on a consideration of
the judgment in relation to the subject-matter of the decision, which
alone has the force of law and which, when it is clear what it was,
B
is binding. It is only the principle laid down in the judgment
that is binding law under Article 141 of the Constitution.
(emphasis supplied)
26. The aforesaid principle has been concisely stated by Lord
C Halsburyin Quinn v. Leathem, 1901 AC 495 (HL) in the aforesaid terms:
… that every judgment must be read as applicable to the particular
facts proved, or assumed to be proved, since the generality of the
expressions which may be found there are not intended to be
expositions of the whole law, but governed and qualified by the
D particular facts of the case in which such expressions are to be
found. The other is that a case is only an authority for what it
actually decides…
(emphasis supplied)
27. Having discussed the aspect of the doctrine of precedent, we
E need to consider another ground on which the reference is sought,i.e.,
the relevance of non-consideration of the earlier decision of a co-ordinate
Bench. In the case at hand, one of the main submissions adopted by
those who are seeking reference is that, the case of Sampat Prakash
(supra) did not consider the earlier ruling in the case of Prem Nath
F Kaul (supra).
28. The rule of per incuriam has been developed as an exception
to the doctrine of judicial precedent. Literally, it means a judgment passed
in ignorance of a relevant statute or any other binding authority [see
Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 (CA)]. The aforesaid
rule is well elucidated in Halsbury’s Laws of Englandin the following
G
manner3:
1687. … the court is not bound to follow a decision of its own if
given per incuriam. A decision is given per incuriam when
the court has acted in ignorance of a previous decision of
H 3
3rd edn., Vol. 22, para 1687, pp. 799-800.
DR. SHAH FAESAL AND ORS. v. UNION OF INDIA AND ANR. 1133
its own or of a court of a coordinate jurisdiction which A
covered the case before it, or when it has acted in ignorance
of a decision of the House of Lords. In the former case it
must decide which decision to follow, and in the latter it is bound
by the decision of the House of Lords.
(emphasis supplied) B
29. In this context of the precedential value of a judgment rendered
per incuriam, the opinion of Justice Venkatachaliah, in the seven-judge
Bench decision of A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602
assumes great relevance:
183. But the point is that the circumstance that a decision is C
reached per incuriam, merely serves to denude the decision
of its precedent value. Such a decision would not be binding as
a judicial precedent. A co-ordinate Bench can disagree with it
and decline to follow it. A larger Bench can overrule such decision.
When a previous decision is so overruled it does not happen D
— nor has the overruling Bench any jurisdiction so to do
— that the finality of the operative order, inter partes, in
the previous decision is overturned. In this context the
word ‘decision’ means only the reason for the previous
order and not the operative order in the previous decision,
binding inter partes. …Can such a decision be characterised E
as one reached per incuriam? Indeed, Ranganath Misra, J. says
this on the point: (para 105)
“Overruling when made by a larger Bench of an earlier
decision of a smaller one is intended to take away the precedent
value of the decision without effecting the binding effect of F
the decision in the particular case. Antulay, therefore, is not
entitled to take advantage of the matter being before a larger
Bench.”
(emphasis supplied)
G
30. The counsel arguing against the reference have asserted that
the rule of per incuriam is limited in its application and is contextual in
nature. They further contend that there needs to be specific contrary
observations which were laid without considering the relevant decisions
on the point, in which case alone the principle of per incuriam applies.
H
1134 SUPREME COURT REPORTS [2020] 3 S.C.R.
A 31. Therefore, the pertinent question before us is regarding the
application of the rule of per incuriam. This Court while deciding the
Pranay Sethi case (supra), referred to an earlier decision rendered by
a two-judge Bench in Sundeep Kumar Bafna v. State of Maharashtra,
(2014) 16 SCC 623, wherein this Court emphasized upon the relevance
and the applicability of the aforesaid rule:
B
19. It cannot be overemphasized that the discipline demanded by
a precedent or the disqualification or diminution of a decision on
the application of the per incuriam rule is of great importance,
since without it, certainty of law, consistency of rulings and comity
of courts would become a costly casualty. A decision or judgment
C can be per incuriam any provision in a statute, rule or regulation,
which was not brought to the notice of the court. A decision or
judgment can also be per incuriam if it is not possible to
reconcile its ratio with that of a previously pronounced
judgment of a co-equal or larger Bench; or if the decision
D of a High Court is not in consonance with the views of this
Court. It must immediately be clarified that the per
incuriam rule is strictly and correctly applicable to the ratio
decidendi and not to obiter dicta.
(emphasis supplied)
E 32. The view that the subsequent decision shall be declared per
incuriam only if there exists a conflict in the ratio decidendi of the
pertinent judgments was also taken by a five-Judge Bench decision of
this Court in Punjab Land Development and Reclamation Corpn.
Ltd. v. Presiding Officer, Labour Court, Chandigarh, (1990) 3 SCC
F 682:
43. As regards the judgments of the Supreme Court allegedly
rendered in ignorance of a relevant constitutional provision or other
statutory provisions on the subjects covered by them, it is true
that the Supreme Court may not be said to “declare the law” on
G those subjects if the relevant provisions were not really present to
its mind. But in this case Sections 25-G and 25-H were not directly
attracted and even if they could be said to have been attracted in
laying down the major premise, they were to be interpreted
consistently with the subject or context. The problem of
judgment per incuriam when actually arises, should present
H
DR. SHAH FAESAL AND ORS. v. UNION OF INDIA AND ANR. 1135
no difficulty as this Court can lay down the law afresh, if two A
or more of its earlier judgments cannot stand together.
(emphasis supplied)
33. In order to analyze the contention of the Petitioners that the
judgments in question were per incuriam, we need to understand the
context, ratios of the concerned cases and the interpretation of Article B
370. Once we have noted the evolution of Article 370, we would be able
to appreciate the context of the cases which are sought to be portrayed
as being contradictory.
34. Under the draft Constitution, Article 370 of the Constitution
was draft Article 306A, which was introduced in the Constituent Assembly C
on 17.10.1947, by N. Gopalaswami Ayyangar, who stated as under:
N. Gopalaswami Ayyangar
Sir, this matter, the matter of this particular motion, relates to
the Jammu and Kashmir State. The House is fully aware of D
the fact that the State has acceded to the Dominion of India.
The history of this accession is also well know. The accession
took place on the 26th October, 1947. Since then, the State has
had a chequered history. Conditions are not yet normal in the
State. The meaning of this accession is that at present
that State is a unit of a federal State, namely, the Dominion E
of India. This Dominion is getting transformed into a
Republic, which will be inaugurated on the 26th January,
1950. The Jammu and Kashmir State, therefore, has to
become a unit of the new Republic of India.
… F
The last clause refers to what may happen later on. We have
said article 211A will not apply to the Jammu and Kashmir
State. But that cannot be a permanent feature of the
Constitution of the State, and hope it will not be. So the
provision is made that when the Constituent Assembly G
of the State has met and taken its decision both on the
Constitution for the State and on the range of federal
jurisdiction over the State, the President may on the
recommendation of that Constituent Assembly issue an
order that this article 306A shall either cease to be
H
1136 SUPREME COURT REPORTS [2020] 3 S.C.R.
A operative, or shall be operative only subject to such
exceptions and modifications as may be specified by him.
But before he issues any order of that kind the
recommendation of the Constituent Assembly will be a
condition precedent. That explains the whole of this
article.
B
The effect of this article is that the Jammu and Kashmir State
which is now a part of India will continue to be a part of India,
will be a unit of the future Federal Republic of India and the
Union Legislature will get jurisdiction to enact laws on matters
specified either in the Instrument of Accession or by later
C addition with the concurrence of the Government of the State.
And steps have to be taken for the purpose of convening a
Constituent Assembly in due course which will go into the
matters I have already referred to. When it has come to a
decision on the different matters it will make a
D recommendation to the President who will either
abrogate article 306A or direct that it shall apply with
such modifications and exceptions as the Constituent
Assembly may recommend. That, Sir, is briefly a description
of the effect of this article, and I hope the House will carry it.
E (emphasis supplied)
35. In line with the above observations, Constitution Order 44
was promulgated under Article 370(3) of the Constitution, modifying
Article 370 of the Constitution by amending the Explanation in Clause 1
of Article 370 in the following terms:
F “Explanation.—For the purposes of this Article, the Government
of the State means the person for the time being recognised by
the President on the recommendation of the Legislative Assembly
of the State as the Sadar-I-Riyasat of Jammu and Kashmir, acting
on the advice of the Council of Ministers of the State for the time
G being on office”
36. Further, the President in exercise of the power conferred upon
him by clause (1) of Article 370 of the Constitution, with the concurrence
of the Government of the State of Jammu and Kashmir, issued the
Constitution (Application to Jammu and Kashmir) Second Amendment
Order, 1965, which further brought about change through amendment to
H
DR. SHAH FAESAL AND ORS. v. UNION OF INDIA AND ANR. 1137
Article 367 as applicable to the State of Jammu and Kashmir. The A
aforesaid amendment can be observed as under:
“(aa) references to the person for the time being recognised by
the President on the recommendation of the Legislative Assembly
of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting
on the advice of the Council of Ministers of the State for the time B
being in office, shall be construed as references to the Governor
of Jammu and Kashmir;
(b) references to the Government of the said State shall be
construed as including references to the Governor of Jammu and
Kashmir acting on the advice of his Council of Ministers: C
Provided that in respect of any period prior to the 10th day of
April, 1965, such references shall be construed as including
references to the Sadar-i-Riyasat acting on the advice of his
Council of Ministers.”
The aforesaid amendment Order of 1965 was upheld in the Mohd. D
Maqbool Damnoo case (supra).
37. After alluding to the Constituent Assembly Debates and
developments subsequent to the coming of the Constitution, we need to
look at the cases indicated by the counsel, which according to them
have interpreted the aforesaid provision in a contradictory manner. E
38. The first case which needs to be looked at is the Prem Nath
Kaul case (supra) which dealt with the validity of the Jammu and
Kashmir Big Landed Estate (Abolition) Act, 2007 (17 of 2007 smvt.).
The main contention on which the Act was impugned was that the Yuvaraj
did not have the constitutional authority to promulgate the said Act. One F
of the arguments canvassed by the Petitioner in that case related to the
effect of Article 370 of the Constitution of India on the powers of the
Yuvaraj. The Constitution Bench, in deciding that it would be unreasonable
to hold that Article 370 could have affected, or was intended to affect,
the plenary powers of the Maharaja, made certain observations relating
G
to Article 370 of the Constitution, which the counsel before us arguing
for a reference have relied upon. The observations of the Constitution
Bench in the Prem Nath Kaul case (supra) regarding Article 370
therefore merit reproduction in their entirety:
H
1138 SUPREME COURT REPORTS [2020] 3 S.C.R.
A 32. Since Mr Chatterjee has strongly relied on the application of
Article 370 of the Constitution to the State in support of his
argument that the Yuvaraj had ceased to hold the plenary legislative
powers, it is necessary to examine the provisions of this article
and their effect. This article was intended to make temporary
provisions with respect to the State of Jammu & Kashmir. It reads
B
thus:
xxx
Clause (1)(b) of this Article deals with the legislative power of
Parliament to make laws for the State; and it prescribes limitation
C in that behalf. Under para (1) of sub-clause (b) of clause (1)
Parliament has power to make laws for the State in respect of
matters in the Union List and the Concurrent List which the
President in consultation with the Government of the State declares
to correspond to matters specified in the Instrument of Accession;
whereas in regard to other matters in the said Lists Parliament
D may, under para (ii), have power to legislate for the State after
such other matters have been specified by his order by the President
with the concurrence of the Government of the State. It is
significant that para (i) refers to consultation with the Government
of the State while para (ii) requires its concurrence. Having thus
E provided for consultation with, and the concurrence of, the
Government of the State, the explanation shows what the
Government of the State means in this context. It means according
to the appellant, not the Maharaja acting by himself in his own
discretion, but the person who is recognised as the Maharaja by
the President acting on the advice of the Council of Ministers for
F the time being in office. It is on this explanation that the appellant
has placed considerable reliance.
33. Sub-clauses (c) and (d) of clause (1) of the Article provide
respectively that the provisions of Article 1 and of the present
article shall apply in relation to the State; and that the other
G provisions of the Constitution shall apply in relation to it subject to
exceptions and modifications specified by the Presidential order.
These provisions are likewise made subject to consultation with,
or concurrence of, the Government of the State respectively.
34. Having provided for the legislative power of Parliament and
H for the application of the articles of the Constitution of the State,
DR. SHAH FAESAL AND ORS. v. UNION OF INDIA AND ANR. 1139
Article 370 clause (2) prescribes that if the concurrence of the A
Government of the State required by the relevant sub-clauses of
clause (1) has been given before the Constituent Assembly of
Kashmir has been convened, such concurrence shall be placed
before such Assembly for such decision as it may take thereon.
This clause show that the Constitution-makers attached
B
great importance to the final decision of the Constituent
Assembly, and the continuance of the exercise of powers
conferred on Parliament and the President by the relevant
temporary provisions of Article 370(1) is made conditional
on the final approval by the said Constituent Assembly in
the said matters. C
35. Clause (3) authorises the President to declare by public
notification that this article shall cease to be operative or shall be
operative only with specified exceptions or modifications; but this
power can be exercised by the President only if the Constituent
Assembly of the State makes recommendation in that behalf. Thus D
the proviso to clause (3) also emphasises the importance
which was attached to the final decision of the Constituent
Assembly of Kashmir in regard to the relevant matters
covered by Article 370.
(emphasis supplied) E
39. Learned senior counsel, Mr. Dinesh Dwivedi and Mr. Sanjay
Parikh, have given much importance to the above observations of the
Court, and have submitted that the implication of the above Statements,
in line with the observations made in the Constituent Assembly Debates,
is that the exercise of power under Article 370 of the Constitution of F
India was contingent on the existence of the Constituent Assembly of
the State of Jammu and Kashmir, as the Constituent Assembly had the
“final decision” on the matters pertaining to Article 370. Therefore,
according to the learned senior counsel, when the Constituent Assembly
of the State was dissolved subsequent to the drafting and adoption of the
Constitution of Jammu and Kashmir, the application of Article 370 G
automatically came to an end, with no further recourse to the same
being possible, even without any declaration to that effect being made
under Article 370(3) of the Constitution.
40. On this interpretation of the decision in the Prem Nath Kaul
case (supra), the learned senior counsel submit that there exists a conflict H
1140 SUPREME COURT REPORTS [2020] 3 S.C.R.
A with the dicta of another Constitution Bench of this Court in the Sampat
Prakash case (supra). In the Sampat Prakash case (supra), this Court
was seized of a matter pertaining to the detention of the petitioner in that
case under the Jammu and Kashmir Preventive Detention Act 13 of
1964. The main point canvassed before the Constitution Bench was
whether the continuation of Article 35(c) of the Constitution (as applicable
B
to the State of Jammu and Kashmir), which gave protection to any law
relating to preventive detention in Jammu and Kashmir, through
successive Constitution Orders passed in exercise of the powers of the
President under Article 370 of the Constitution, in 1959 and 1964, was
valid. The Court held that the Constitution Orders were validly passed in
C exercise of the power under Article 370 of the Constitution, which
continued beyond the date of dissolution of the Constituent Assembly. In
this regard, this Court held as follows:
5. We are not impressed by either of these two arguments
advanced by Mr Ramamurthy. So far as the historical background
D is concerned, the Attorney-General appearing on behalf of the
Government also relied on it to urge that the provisions of Article
370 should be held to be continuing in force, because the situation
that existed when this article was incorporated in the Constitution
had not materially altered, and the purpose of introducing this article
was to empower the President to exercise his discretion in applying
E the Indian Constitution while that situation remained unchanged.
There is considerable force in this submission. The legislative
history of this article cannot, in these circumstances, be of
any assistance for holding that this article became ineffective
after the Constituent Assembly of the State had framed the
F Constitution for the State.
6. The second submission based on clause (2) of Article 370 does
not find support even from the language of that clause which only
refers to the concurrence given by the Government of the State
before the Constituent Assembly was convened, and makes no
G mention at all of the completion of the work of the Constituent
Assembly or its dissolution.
7. There are, however, much stronger reasons for holding
that the provisions of this article continued in force and
remained effective even after the Constituent Assembly of
H the State had passed the Constitution of the State. The most
DR. SHAH FAESAL AND ORS. v. UNION OF INDIA AND ANR. 1141
important provision in this connection is that contained in clause A
(3) of the article which lays down that this article shall cease to
be operative or shall be operative only with such exceptions and
modifications and from such date as the President may specify
by public notification, provided that the recommendation of the
Constituent Assembly of the State referred to in clause (2) shall
B
be necessary before the President issues such a notification. This
clause clearly envisages that the article will continue to be operative
and can cease to be operative only if, on the recommendation of
the Constituent Assembly of the State, the President makes a
direction to that effect. In fact, no such recommendation was
made by the Constituent Assembly of the State, nor was any order C
made by the President declaring that the article shall cease to be
operative. On the contrary, it appears that the Constituent Assembly
of the State made a recommendation that the article should be
operative with one modification to be incorporated in the
Explanation to clause (1) of the article. This modification in the
D
article was notified by the President by Ministry of Law Order
CO 44 dated 15th November, 1952, and laid down that, from 17th
November, 1952, the article was to be operative with substitution
of the new Explanation for the old Explanation as it existed at that
time. This makes it very clear that the Constituent Assembly of
the State did not desire that this article should cease to be operative E
and, in fact, expressed its agreement to the continued operation
of this article by making a recommendation that it should be
operative with this modification only.
(emphasis supplied)
41. The learned senior counsel urge that these two judgments by F
Constitution Benches of this Court are in direct conflict with one another,
and as such, the present petitions require to be referred to a larger Bench.
However, we are not in agreement with this submission of the learned
senior counsel.
42. First, it is worth highlighting that judgments cannot be G
interpreted in a vacuum, separate from their facts and context.
Observations made in a judgment cannot be selectively picked in order
to give them a particular meaning. The Court in the Prem Nath Kaul
case (supra) had to determine the legislative competence of the Yuvaraj,
in passing a particular enactment. The enactment was passed during the H
1142 SUPREME COURT REPORTS [2020] 3 S.C.R.
A interregnum period, before the formulation of the Constitution of State
of Jammu and Kashmir, but after coming into force of the Constitution
of India. The observations made by the Constitution Bench in this case,
regarding the importance given to the decision of the Constituent Assembly
of the State of Jammu and Kashmir needs to be read in the light of these
facts.
B
43. Second, the framework of Article 370(2) of the Indian
Constitution was such that any decision taken by the State Government,
which was not an elected body but the Maharaja of the State acting on
the advice of the Council of Ministers which was in office by virtue of
the Maharaja’s proclamation dated March 5, 1948, prior to the sitting of
C the Constituent Assembly of the State, would have to be placed before
the Constituent Assembly, for its decision as provided under Article 370(2)
of the Constitution. The rationale for the same is clear, as the task of the
Constituent Assembly was to further clarify the scope and ambit of the
constitutional relationship between the Union of India and the State of
D Jammu and Kashmir, on which the State Government as defined under
Article 370 might have already taken some decisions, before the
convening of the Constituent Assembly, which the Constituent Assembly
in its wisdom, might ultimately not agree with. Hence, the Court in the
case of Prem Nath Kaul (supra) indicated that the Constituent
Assembly’s decision under Article 370(2) was final. This finality has to
E be read as being limited to those decisions taken by the State Government
under Article 370 prior to the convening of the Constituent Assembly of
the State, in line with the language of Article 370(2).
44. Third, the Constitution Bench in the Prem Nath Kaul case
(supra) did not discuss the continuation or cessation of the operation of
F Article 370 of the Constitution after the dissolution of the Constituent
Assembly of the State. This was not an issue in question before the
Court, unlike in the Sampat Prakash case (supra) where the contention
was specifically made before, and refuted by, the Court. This Court
sees no reason to read into the Prem Nath Kaul case (supra) an
G interpretation which results in it being in conflict with the subsequent
judgments of this Court, particularly when an ordinary reading of the
judgment does not result in such an interpretation.
45. Thus, this Court is of the opinion that there is no conflict
between the judgments in the Prem Nath Kaul case (supra) and the
H
DR. SHAH FAESAL AND ORS. v. UNION OF INDIA AND ANR. 1143
Sampat Prakash case (supra). The plea of the counsel to refer the A
present matter to a larger Bench on this ground is therefore rejected.
46. An additional ground canvassed by the learned senior counsel
is that the judgment of the Court in the Prem Nath Kaul case (supra)
was not considered by the Court in its subsequent decision in Sampat
Prakash case (supra), which is therefore per incuriam. At the cost of B
repetition, we note that the rule of per incuriam being an exception to
the doctrine of precedents is only applicable to the ratio of the judgment.
The same having an impact on the stability of the legal precedents must
be applied sparingly, when there is an irreconcilable conflict between
the opinions of two co-ordinate Benches. However, as indicated above
there are no contrary observations made in the Sampat Prakash case C
(supra) to that of Prem Nath Kaul (supra), accordingly, the case of
Sampat Prakash (supra) is not per incuriam.
47. In light of the aforesaid discussion, we do not see any reason
to refer these petitions to a larger Bench on the questions considered.
D
Divya Pandey Petitions disposed of.
E
F
G
H
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