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 WRIT PETITION (CIVIL) NO. 1048 OF 2019 WRIT PETITION (CIVIL) NO. 1068 OF 2019
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
O R D E R
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
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.
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
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
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
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
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
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
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
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)
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.
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
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
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)
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
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
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)
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.
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:
… 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.
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
‘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
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
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.
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
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
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
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
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.
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)
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
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
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
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
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
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
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
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
