Full Judgment Text
REPORTABLE
I N THE S UPREME C OURT OF I NDIA
C IVIL O RIGINAL J URISDICTION
RIT ETITION IVIL O OF
W P (C ) N . 1099 2019
D R . S HAH F AESAL A ND O RS . …P ETITIONER ( S )
V ERSUS
U NION OF I NDIA AND A NR . …R ESPONDENT ( S )
And
RIT ETITION IVIL O OF
W P (C ) N . 1013 2019
W RIT P ETITION (C IVIL ) N O . 722 OF 2014
W RIT P ETITION (C IVIL ) N O . 871 OF 2015
W RIT P ETITION (C IVIL ) N O . 396 OF 2017
SLP (C IVIL ) N O . 19618 OF 2017
RIT ETITION IVIL O OF
W P (C ) N . 756 2017
RIT ETITION IVIL O OF
W P (C ) N . 398 2018
RIT ETITION IVIL O OF
W P (C ) N . 924 2018
W RIT P ETITION (C IVIL ) N O . 1092 OF 2018
W RIT P ETITION (C IVIL ) N O . 1162 OF 2018
W RIT P ETITION (C IVIL ) N O . 1082 OF 2019
Signature Not Verified
W RIT P ETITION (C IVIL ) N O . 1048 OF 2019
Digitally signed by
DEEPAK SINGH
Date: 2020.07.04
11:23:15 IST
Reason:
RIT ETITION IVIL O OF
W P (C ) N . 1068 2019
1
RIT ETITION IVIL O OF
W P (C ) N . 1037 2019
W RIT P ETITION (C IVIL ) N O . 1062 OF 2019
W RIT P ETITION (C IVIL ) N O . 1070 OF 2019
W RIT P ETITION (C IVIL ) N O . 1104 OF 2019
W RIT P ETITION (C IVIL ) N O . 1165 OF 2019
RIT ETITION IVIL O OF
W P (C ) N . 1210 2019
RIT ETITION IVIL O OF
W P (C ) N . 1222 2019
RIT ETITION IVIL O OF
W P (C ) N . 1268 2019
W RIT P ETITION (C IVIL ) N O . 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
Notwithstanding anything in this
(1)
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;
[1952 wording]: For the
Explanation
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
, AIR 1959 SC 749,
Kaul v. State of Jammu and Kashmir
after considering the various issues, held that Article 370 was
temporary in nature, but the subsequent judgment of Sampat
, AIR 1970 SC
Prakash v. State of Jammu and Kashmir
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 (supra). This Court, after widely
Prem Nath Kaul
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 (supra) and
Sampat Prakash 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
(supra) held that neither the Constituent Assembly
Prakash
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 (supra),
Mohd. Maqbool Damnoo
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
(supra) and (supra) is not
Nath Kaul Sampat Prakash
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
(supra) is per incuriam as it has not
Sampat Prakash
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
case( supra ) and case
Kaul Sampat Prakash
( )?
supra
iii. Whether case ( supra ) is per
Sampat Prakash
for not taking into consideration the
incuriam
decision of the Court in case
Prem Nath Kaul
( )?
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
1
evenhandedness .”
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 by a
Bench of same strength, 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.
[1898] A.C. 375 and
London County Council, 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
, [1914] 18 C.L.R 54:
Brisbane Tramways Co. Ltd. (No. 1)
"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
2
by a coordinate Bench is succinctly delineated by in
Salmond
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
2 Salmond 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:
…It is not everything said by a Judge
9.
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
3
Halsbury's Laws of England in the following manner :
3 3rd 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 . This Court while
per incuriam
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
, (1990) 3 SCC 682:
Court, Chandigarh
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 case (supra)
Prem Nath Kaul
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 ( ), have power to legislate
ii
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 ( ) refers
i
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 case (supra) . In the
Sampat Prakash
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.
There are, however,
7. 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
case (supra) had to determine the legislative
Prem Nath Kaul
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 case
Prem Nath Kaul
( 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 case (supra)
Prem Nath Kaul
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
case (supra) to that of
Sampat Prakash 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
40
41
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