Shah Faesal vs Union Of India on 2 March, 2020


Supreme Court of India

Shah Faesal vs Union Of India on 2 March, 2020

Author: N.V. Ramana

Bench: S Kant, B R Gavai, R S Reddy, S K Kaul, N Ramana

                                                                            REPORTABLE

                                 IN THE SUPREME COURT OF INDIA
                                   CIVIL ORIGINAL JURISDICTION


                              WRIT PETITION (CIVIL) NO. 1099   OF    2019



             DR. SHAH FAESAL AND ORS.                              …PETITIONER(S)

                                               VERSUS

             UNION       OF INDIA AND   ANR.                   …RESPONDENT(S)

                                                And

                             WRIT PETITION (CIVIL) NO. 1013    OF   2019

                              WRIT PETITION (CIVIL) NO. 722   OF    2014

                              WRIT PETITION (CIVIL) NO. 871   OF    2015

                              WRIT PETITION (CIVIL) NO. 396   OF    2017

                                 SLP (CIVIL) NO. 19618   OF   2017

                              WRIT PETITION (CIVIL) NO. 756   OF    2017

                              WRIT PETITION (CIVIL) NO. 398   OF    2018

                              WRIT PETITION (CIVIL) NO. 924   OF    2018

                             WRIT PETITION (CIVIL) NO. 1092    OF   2018

                             WRIT PETITION (CIVIL) NO. 1162    OF   2018

                             WRIT PETITION (CIVIL) NO. 1082    OF   2019
Signature Not Verified

Digitally signed by
GEETA AHUJA
                             WRIT PETITION (CIVIL) NO. 1048    OF   2019
Date: 2020.03.02
13:29:30 IST
Reason:

                             WRIT PETITION (CIVIL) NO. 1068    OF   2019


                                                 1
           WRIT PETITION (CIVIL) NO. 1037   OF   2019

           WRIT PETITION (CIVIL) NO. 1062   OF   2019

           WRIT PETITION (CIVIL) NO. 1070   OF   2019

           WRIT PETITION (CIVIL) NO. 1104   OF   2019

           WRIT PETITION (CIVIL) NO. 1165   OF   2019

           WRIT PETITION (CIVIL) NO. 1210   OF   2019

           WRIT PETITION (CIVIL) NO. 1222   OF   2019

           WRIT PETITION (CIVIL) NO. 1268   OF   2019

           WRIT PETITION (CIVIL) NO. 1368   OF   2019


                            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 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 Constitution Benches on the

interpretation of Article 370 of the Constitution. This order is

confined to the limited preliminary issue of whether the matter

2
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 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
(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 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
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.

3

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;

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 Sadar­i­Riyasat (now
Governor) of Jammu and Kashmir, acting on
the advice of the Council of Ministers of the
State for the time being in office.

(c) The provisions of article 1 and of this
article shall apply in 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 in the Instrument of
Accession of the State referred to in
paragraph (i) of sub­clause (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 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
4
provision to sub­clause (d) of that clause be
given before the Constituent Assembly for
the purpose of framing the Constitution 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
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.

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 Rule was imposed in exercise

of powers under Article 356 of the Constitution of India in the

State of Jammu and Kashmir, which was subsequently

extended on 03.7.2019.

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

5
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:­

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
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.

(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
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—

(a) references to this Constitution or to
the provisions thereof shall be construed as
references to the Constitution or the

6
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
Assembly of the State as the Sadar­i­Riyasat
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;

(c) 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;

and

(d) in proviso to clause (3) of article 370
of this Constitution, the expression
“Constituent Assembly of the State referred
to in clause (2)” shall read “Legislative
Assembly of the State”.”

C.O. 273 of 2019

MINISTRY OF LAW AND JUSTICE
(Legislative Department) NOTIFICATION
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) OF
THE CONSTITUTION
C.O. 273

In exercise of the powers conferred by clause
(3) of article 370 read with clause (1) of
7
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 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
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, by­law, rule, regulation,
notification, custom or usage having the
force of law in the territory of India, or any
other instrument, 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 Kashmir in its entirety,

like other States in India.

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

8
required to hear the issue of reference as a preliminary

question.

Contentions

8. Learned senior advocate Mr. Dinesh Dwivedi, after placing

reliance upon the Constituent Assembly debates and

interpreting the language of Article 370, submitted that Article

370 was a transitory 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 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.

Learned senior counsel contended that this conflict needs

9
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

five­judges in Prem Nath 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.

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 Constituent Assembly

nor the President ever made any declaration that Article 370

has ceased to be operative. Moreover, this Court in the

aforesaid case further held that in the light of the proviso to

10
Article 368, the President under Article 370 is required to

exercise his powers from time to time in order to bring into

effect constitutional amendments in 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.

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 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 aforesaid two five­judge Bench decisions of

Prem Nath Kaul (supra) and Sampat Prakash (supra)

11
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

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. 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 the

Constitution of Jammu and Kashmir is subordinate to that of

the Constitution of India.

12

14. The learned Solicitor General supported the arguments

rendered by the learned Attorney General and submitted that a

co­ordinate Bench cannot refer the matter to a larger Bench on

minor inconsistencies. Rather, the decisions rendered by an

earlier co­ordinate 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.

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 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 Naphade and Gopal

13
Sankaranarayanan, who submitted that the 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?
ii. Whether there is a requirement to refer the present
matter to a larger Bench in view of the alleged
contradictory 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 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 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 Court of the United States, John
14
Roberts observed during his Senate confirmation hearing, “It is

a jolt to the legal system when you overrule a precedent.

Precedent plays an important role in promoting stability and

even­handedness.”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 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 interest and the society organizes 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 of the

same Bench, or it is shown that the proposition laid down has

become unworkable or contrary to a well­established principle,

that a reference will be made to a larger Bench. In this context,

a five­Judge Bench of this Court in Chandra

1 Congressional Record—Senate, Vol. 156, Pt. 7, 10018 (June 7, 2010)
15
Prakash v. State of U.P., (2002) 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 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 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

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

16
basis as to when the House of Lords could overrule its earlier

decisions.

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 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 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.”

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 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

17
the Court can always listen to argument as to
whether it ought to review a particular
decision, and the strongest 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

co­ordinate Bench binds subsequent co­ordinate Benches. It is

now a settled 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 two­Judge Bench in Santosh
Devi [Santosh Devi v. National Insurance Co.
Ltd
., (2012) 6 SCC 421 7] should have been
well advised to refer the matter to a larger
Bench as it 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.

(emphasis supplied)

18

24. The impact of non­consideration 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 co­ordinate, 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. 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.

(emphasis supplied)

25. In this line, further enquiry requires us to examine, to

what extent does a ruling of co­ordinate Bench bind the

subsequent Bench. A judgment of this Court can be

distinguished into two parts: ratio decidendi and the obiter

dictum. The ratio is the basic essence of the judgment, and the

2Salmond on Jurisprudence (P.J. Fitzgerald ed., 12th edn., 1966), p. 147.

19
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 three­Judge Bench

decision of this Court in Union of India v. Dhanwanti Devi,

(1996) 6 SCC 44 wherein this Court held that:

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
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 subject­matter of the decision, which
alone has the force of law and which, when it
is clear what it was, 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

Halsbury in Quinn v. Leathem, 1901 AC 495 (HL) in the

aforesaid terms:

20

… 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
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 need to consider another ground on which the reference is

sought, i.e., the relevance of non­consideration of the earlier

decision of a co­ordinate 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 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 England in the following manner3:
33rd edn., Vol. 22, para 1687, pp. 799­800.
21
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 its own or of a court of a
coordinate jurisdiction which 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)

29. In this context of the precedential value of a judgment rendered

per incuriam, the opinion of Justice Venkatachaliah, in the

seven­judge 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 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 — 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

22
‘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 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 the decision in
the particular case. Antulay,
therefore, is not entitled to take
advantage of the matter being
before a larger Bench.”

(emphasis supplied)

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.

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 two­judge Bench in Sundeep Kumar

23
Bafna v. State of Maharashtra
, (2014) 16 SCC 623, wherein

this Court emphasized upon the relevance and the applicability

of the aforesaid rule:

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 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
co­equal or larger Bench; or if the
decision 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)

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 five­Judge Bench

decision of this Court in Punjab Land Development and

24
Reclamation Corpn. Ltd. v. Presiding Officer, Labour

Court, Chandigarh, (1990) 3 SCC 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 those subjects if the
relevant provisions were not really present to
its mind. But in this case Sections 25­G and
25­H 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 no difficulty as this Court can lay
down the law afresh, if two 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 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.

25

34. Under the draft Constitution, Article 370 of the Constitution

was draft Article 306A, which was introduced in the

Constituent Assembly 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 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 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.


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 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
26
Assembly issue an order that this article
306A
shall either cease to be 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.

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 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 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.

(emphasis supplied)

27

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:

“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
Sadar­I­Riyasat of Jammu and Kashmir,
acting on the advice of the Council of
Ministers of the State for the time 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 Article 367 as

applicable to the State of Jammu and Kashmir. The 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 Sadar­i­Riyasat of Jammu
and Kashmir, acting on the advice of the
Council of Ministers of the State for the time

28
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:

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 Sadar­i­Riyasat acting on
the advice of his Council of Ministers.”

The aforesaid amendment Order of 1965 was upheld in the

Mohd. 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.

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 of the arguments

29
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 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:

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 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 in

30
that behalf. Under para (1) of sub­clause (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
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 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 the time being in office. It is on
this explanation that the appellant has
placed considerable reliance.

33. Sub­clauses (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 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.
31

34. Having provided for the legislative power
of Parliament and for the application of the
articles of the Constitution of the State,
Article 370 clause (2) prescribes that if the
concurrence of the Government of the State
required by the relevant sub­clauses 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 Constitution­makers attached 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.

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 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)

32

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 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 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 with the dicta of another Constitution Bench of

this Court in the Sampat Prakash case (supra). In the

33
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 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 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 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

34
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 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
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 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 the State had
passed the Constitution of the State. The
most important provision in this connection
is that contained in clause (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

35
Assembly of the State referred to in clause
(2) shall 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 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 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 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

Constitution Benches of this Court are in direct conflict with

one another, and as such, the present petitions require to be

36
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

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 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.

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 the Constituent

37
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 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 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 Article 370 of the Constitution after the dissolution

of the Constituent Assembly of the State. This was not an issue
38
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 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 Sampat Prakash case (supra). The plea of the counsel

to refer the 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 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

39
between the opinions of two co­ordinate Benches. However, as

indicated above there are no contrary observations made in the

Sampat Prakash case (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.

……………………………………….J.

(N.V. RAMANA)

……………………………………….J.

(SANJAY KISHAN KAUL)

………………………………………J.

(R. SUBHASH REDDY)

……………………………………….J.

(B. R. GAVAI)

……………………………………….J.

(SURYA KANT)

NEW DELHI;

MARCH 02, 2020

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