# DR. SHAH FAESAL AND ORS v. UNION OF INDIA AND ANR

- **Citation:** [2020] 3 S.C.R. 1115
- **Court:** Supreme Court of India
- **Decided:** 2020-03-02
- **Bench:** N. V. Ramana, Sanjay Kishan Kaul, R. Subhash Reddy, B. R. Gavai, Surya Kant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-shah-faesal-and-ors-v-union-of-india-and-anr-34087
- **Pages:** 29

## Headnote

Constitution of India - Art.370 - On August 5, 2019, two
Constitution Orders were issued by the President, in exercise of
power u/Art.370, which made the Constitution of India applicable
to the State of Jammu & Kashmir in its entirety, like other States in
India - Orders challenged - Contentions raised at the outset that
the present matter needs to be referred to larger Bench as there are
contrary opinions by two different Constitution Benches in Prem
Nath Kaul v. State of Jammu and Kashmir reported as [1959] Suppl.
SCR 270 and Sampat Prakash v. State of Jammu and Kashmir reported
as [1970] SCR 365 on the interpretation of Art.370 and that Sampat
Prakash is per incuriam as it did not consider Prem Nath Kaul - Present
order confined to preliminary issue of reference - No issue
considered on merits - Held: Decision rendered by a coordinate
Bench is binding on the subsequent Benches of equal or lesser
strength - However, judgments cannot be interpreted in a vacuum,
separate from their facts, context - In Prem Nath Kaul, Court had to
determine the legislative competence of the Yuvaraj, in passing a
particular enactment passed during the interregnum period, before
the formulation of the Constitution of State of Jammu & Kashmir,
but after coming into force of the Constitution of India -
Observations made regarding the importance given to decision of
the Constituent Assembly of the State of Jammu & Kashmir needs to
be read in the light of these facts - It was indicated that the
Constituent Assembly's decision u/Art.370(2) was final - This finality
has to be read as being limited to those decisions taken by the State
Govt. u/Art.370 prior to the convening of the Constituent Assembly
of the State, in line with the language of Art.370(2) - Prem Nath
Kaul did not discuss the continuation/cessation of operation of
Art.370 after the dissolution of the Constituent Assembly of the State
[2020] 3 S.C.R. 1115
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SUPREME COURT REPORTS
[2020] 3 S.C.R.
- This issue was not in question before the Court, unlike in Sampat
Prakash case where the contention was specifically made and refuted
by the Court - Rule of per incuriam being an exception to the doctrine
of precedents is only applicable to the ratio of the judgment - There
are no contrary observations made in Sampat Prakash case to that
of Prem Nath Kaul - Sampat Prakash case is not per incuriam - No
conflict between Prem Nath Kaul and Sampat Prakash - No reason
to refer these petitions to a larger Bench on the questions considered
- Doctrine of Precedents and stare decisis.
Practice & Procedure - Doctrine of Precedents - Rule of per
incuriam, an exception - Applicability of - Held: Rule of per incuriam
has been developed as an exception to the doctrine of judicial
precedent - Literally, it means a judgment passed in ignorance of a
relevant statute or any other binding authority - Rule of per incuriam
is only applicable to the ratio of the judgment - Constitution of
India - Art.370.
Words & Expressions -''ratio decidendi"; "obiter dictum" -
Meaning of - Discussed - Constitution of India - Art.370.
Disposing of the petitions, the Court
HELD: 1.1 Doctrine of precedents and stare decisis are
the core values of legal system. They form the tools which further
the goal of certainty, stability and continuity in legal system.
Arguably, judges owe a duty to the concept of certainty of law,
therefore they often justify their holdings by relying upon the
established tenets of law. When a decision is rendered by this
Court, it acquires a reliance interest and the society organizes
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 well-established principle,
that a reference will be m

## Text

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DR. SHAH FAESAL AND ORS.
v.
UNION OF INDIA AND ANR.
(Writ Petition (Civil) No. 1099 of 2019)
MARCH 02, 2020
[N. V. RAMANA, SANJAY KISHAN KAUL,
R. SUBHASH REDDY, B. R. GAVAI AND SURYA KANT, JJ.]
Constitution of India - Art.370 - On August 5, 2019, two
Constitution Orders were issued by the President, in exercise of
power u/Art.370, which made the Constitution of India applicable
to the State of Jammu & Kashmir in its entirety, like other States in
India - Orders challenged - Contentions raised at the outset that
the present matter needs to be referred to larger Bench as there are
contrary opinions by two different Constitution Benches in Prem
Nath Kaul v. State of Jammu and Kashmir reported as [1959] Suppl.
SCR 270 and Sampat Prakash v. State of Jammu and Kashmir reported
as [1970] SCR 365 on the interpretation of Art.370 and that Sampat
Prakash is per incuriam as it did not consider Prem Nath Kaul - Present
order confined to preliminary issue of reference - No issue
considered on merits - Held: Decision rendered by a coordinate
Bench is binding on the subsequent Benches of equal or lesser
strength - However, judgments cannot be interpreted in a vacuum,
separate from their facts, context - In Prem Nath Kaul, Court had to
determine the legislative competence of the Yuvaraj, in passing a
particular enactment passed during the interregnum period, before
the formulation of the Constitution of State of Jammu & Kashmir,
but after coming into force of the Constitution of India -
Observations made regarding the importance given to decision of
the Constituent Assembly of the State of Jammu & Kashmir needs to
be read in the light of these facts - It was indicated that the
Constituent Assembly's decision u/Art.370(2) was final - This finality
has to be read as being limited to those decisions taken by the State
Govt. u/Art.370 prior to the convening of the Constituent Assembly
of the State, in line with the language of Art.370(2) - Prem Nath
Kaul did not discuss the continuation/cessation of operation of
Art.370 after the dissolution of the Constituent Assembly of the State
[2020] 3 S.C.R. 1115
1115
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SUPREME COURT REPORTS
[2020] 3 S.C.R.
- This issue was not in question before the Court, unlike in Sampat
Prakash case where the contention was specifically made and refuted
by the Court - Rule of per incuriam being an exception to the doctrine
of precedents is only applicable to the ratio of the judgment - There
are no contrary observations made in Sampat Prakash case to that
of Prem Nath Kaul - Sampat Prakash case is not per incuriam - No
conflict between Prem Nath Kaul and Sampat Prakash - No reason
to refer these petitions to a larger Bench on the questions considered
- Doctrine of Precedents and stare decisis.
Practice & Procedure - Doctrine of Precedents - Rule of per
incuriam, an exception - Applicability of - Held: Rule of per incuriam
has been developed as an exception to the doctrine of judicial
precedent - Literally, it means a judgment passed in ignorance of a
relevant statute or any other binding authority - Rule of per incuriam
is only applicable to the ratio of the judgment - Constitution of
India - Art.370.
Words & Expressions -''ratio decidendi"; "obiter dictum" -
Meaning of - Discussed - Constitution of India - Art.370.
Disposing of the petitions, the Court
HELD: 1.1 Doctrine of precedents and stare decisis are
the core values of legal system. They form the tools which further
the goal of certainty, stability and continuity in legal system.
Arguably, judges owe a duty to the concept of certainty of law,
therefore they often justify their holdings by relying upon the
established tenets of law. When a decision is rendered by this
Court, it acquires a reliance interest and the society organizes
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 well-established principle,
that a reference will be made to a larger Bench. [Paras 18,
19][1129-B-D]
1.2 A judgment of this Court can be distinguished into two
parts: ratio decidendi and the obiter dictum. The ratio is the basic
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essence of the judgment, and the same must be understood in
the context of the relevant facts of the case. [Para 25][1131-F-G]
1.3 Judgments cannot be interpreted in a vacuum, separate
from their facts and context. Observations made in a judgment
cannot be selectively picked in order to give them a particular
meaning. The Court in the Prem Nath Kaul case had to determine
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. 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 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). The Constitution Bench in the Prem Nath Kaul
case did not discuss the continuation or cessation of the operation
of Article 370 of the Constitution after the dissolution of the
Constituent Assembly of the State. This was not an issue in
DR. SHAH FAESAL AND ORS. v. UNION OF INDIA AND ANR.
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SUPREME COURT REPORTS
[2020] 3 S.C.R.
question before the Court, unlike in the Sampat Prakash case
where the contention was specifically made before, and refuted
by, the Court. This Court sees no reason to read into the Prem
Nath Kaul case an interpretation which results in it being in
conflict with the subsequent judgments of this Court, particularly
when an ordinary reading of the judgment does not result in such
an interpretation. Thus, there is no conflict between the judgments
in the Prem Nath Kaul case and the Sampat Prakash case. The
plea of the counsel to refer the present matter to a larger Bench
on this ground is therefore rejected. [Paras 42-45][1141-G-H;
1142-A-H; 1143-A]
1.4 The rule of per incuriam being an exception to the
doctrine of precedents is only applicable to the ratio of the
judgment. The same having an impact on the stability of the legal
precedents must be applied sparingly, when there is an
irreconcilable conflict between the opinions of two co-ordinate
Benches. However, there are no contrary observations made in
the Sampat Prakash case to that of Prem Nath Kaul, accordingly,
the case of Sampat Prakash is not per incuriam. No reason is
seen to refer these petitions to a larger Bench on the questions
considered. [Paras 46, 47][1143-B-D]
A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602 : [1988]
1 Suppl. SCR 1 - followed.
Chandra Prakash v. State of U.P. (2002) 4 SCC 234 :
[2002] 2 SCR 913 ; National Insurance Company
Limited v. Pranay Sethi (2017) 16 SCC 680 : [2017] 13
SCR 100 ; Union of India v. Dhanwanti Devi (1996) 6
SCC 44 : [1996] 5 Suppl. SCR 32 ; Sundeep Kumar
Bafna v. State of Maharashtra (2014) 16 SCC 623 :
[2014] 4 SCR 486 ; Punjab Land Development and
Reclamation Corpn. Ltd. v. Presiding Officer, Labour
Court, Chandigarh (1990) 3 SCC 682 : [1990] 3 SCR
111 - relied on.
Sampat Prakash v. State of Jammu and Kashmir AIR
1970 SC 1118 : [1970] SCR 365 - held not per
incuriam.
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Prem Nath Kaul v. State of Jammu and Kashmir AIR
1959 SC 749 : [1959] Suppl. SCR 270 ; Mohd.
Maqbool Damnoo v. State of Jammu and Kashmir
(1972) 1 SCC 536 : [1972] 2 SCR 1014 ; State Bank
of India v. Santosh Gupta (2017) 2 SCC 538 : [2016] 9
SCR 985 - referred to.
Street Tramways v. London County Council [1898] A.C.
375 ; Radcliffe v. Ribbel Motor Service Ltd. [1939] A.C.
215 ; Ex Parte Brisbane Tramways Co. Ltd. (No. 1)
[1914] 18 C.L.R 54 ; Quinn v. Leathem 1901 AC 495
(HL) ; Young v. Bristol Aeroplane Co. Ltd. 1944 KB
718 (CA) - referred to.
Congressional Record- Senate, Vol.156, Pt.7, 10018
(June 7, 2010) ; Salmond on Jurisprudence (P.J.
Fitzgerald ed., 12th Edn. 1966), p.147 ; Halsbury's
Laws of England 3rd edn., Vol.22, para 1687, pp.799800 - referred to.
Case Law Reference
[1959] Suppl. SCR 270
referred to
Para 8
[1970] SCR 365
held not per incuriam
Para 8
[1972] 2 SCR 1014
referred to
Para 10
[2016] 9 SCR 985
referred to
Para 13
[2002] 2 SCR 913
relied on
Para 19
[2017] 13 SCR 100
relied on
Para 23
[1996] 5 Suppl. SCR 32
relied on
Para 25
[1988] 1 Suppl. SCR 1
followed
Para 29
[2014] 4 SCR 486
relied on
Para 31
[1990] 3 SCR 111
relied on
Para 32
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)
No. 1099 of 2019.
[Under Article 32 of The Constitution of India]
With
DR. SHAH FAESAL AND ORS. v. UNION OF INDIA AND ANR.
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SUPREME COURT REPORTS
[2020] 3 S.C.R.
Writ Petition (C) Nos. 396, 756 of 2017, 398, 924, 1092, 1162 of
2018, 1013, 1082, 1048, 1068, 1037, 1062, 1070, 1104, 1165, 1210, 1222,
1268, 1368 of 2019, S.L.P.(C) No. 19618 of 2017.
K.K. Venugupal, AG, Tushar Mehta, SG, Vikramjit Banerjee,
K.M. Nataraj, ASGs, D.C. Raina, AG for UT OF J&K, Dr. Rajeev
Dhavan, Dinesh Dwivedi, Shekhar Naphade, Prashanto Sen, Ranjit
Kumar, Ravindra Raizada, C.U. Singh, Sanjay Parikh, P. Chidambaram,
Jaideep Gupta, Purushaindra Kaurav, Gopal Sankaranarayanan,
P.V. Surendranath, Z.A. Shah, R.K. Raizada, Vinay Navare, Sr. Advs.,
Ms. Pritha Srikumar, Sulabh Rewari, Aditya Chatterjee, Ms. Arunima
Kedia, Amrutanshu Dash, K. K. Mohan, Prateek Dwivedi, Krishnam
Mishra, Yasharth Kant, Nishant Singh, Barun Kumar Sinha, Mrs. Pratibha
Sinha, Anil Kumar, Rakesh Muddgal, Rameshwar Prasad Goyal, Vishnu
Shankar Jain, Anil Kumar Jha, Ms. Vijaya Lakshmi Jha, Ms. Jyoti Kumari,
Ms. Nitya Ramakrishnan, Shankar Narayan, Prasanna S., Shadan Farasat,
Ms. Malavika Prasad, Jaya Vardhan Singh, Ms. Jahanvi Sindhu,
Ms. Shruti Narayan, Gautam Bhatia, Aakarsh Kamra, Bimal Roy Jad,
N.G. Dev, Ms. Shikha Dixit, Sumit Moza, Ranvir Singh, Kaustav Som,
Ankur Singh, Ms. S. Lakshmi Iyer, Ms. Aishwarya Dash, Kaustubh
Singh, Arjun Krishnan, Ms. Divya Roy, Yashraj Singh Bundela, Surjeet
Nehra, Sarthak Raizada, Apoorv Shukla, Aditya Gaggar, Vishal Arun,
Santosh, Saif Mahmood, Vivek Agarwal, Ms. Lavanya Bisht, D.
Abhinav Rao, Abhimanue Shrestha, D. Mahesh Babu, Shishir Pinaki,
Rajiv Kumar Sinha, P. Nirup, Ganesan Subbian, Gautam Bhatia, Ms.
Malvika Prasad, Sourav Gupta, Ms. Anandita Mitra, Ms. Suchitra
Hrangkhawl, Katubadi Ismail, Wani Yasmeen, Anirudh Sharma, Surjeet
Singh, Rahul Tanwani, Ms. Anuradha Mishra, Ms. Kanti, Soayib Qureshi,
Dhananjaya Sud, Shrutanjaya Bhardwaj, Vishal Sinha, Ms. Charu
Ambwani, Ms. Gayatri Verma, Dharmendra Kumar Sinha, Vikrant Yadav,
Puneet Chugh, Ashok Kumar Yadav, Gaurav Dhingra, Ms. Indira, Syed
Imtiaz Ali, M. C. Dhingra, Ashwani Kumar Dubey, Pallav Mongia Mohd.
Irshad Hanif, Tushar Gupta, P. V. Dinesh, Ms. Sindhu T.P., Mukund P.
Unny, Bineesh K., Ashwini Kumar Singh, Ms. Shilpa Singh, Tripurari
Ray, Balwant Singh Billowria, Atul Wadera, Parveen Kumar, Vijay Pratap
Singh, Vivekanand Singh, Nitish Shekhar, Kanu Agarwal, Ankur Talwar,
Rajat Nair, Siddhartha Sinha, Prashant Rawat, Ayush, Ms. Shruti Agarwal,
A.K. Sharma, Bimal Roy Jad, M. Shoeb Alam, Debasis Misra, Mohit
Chaudhary, Chaudhary Zulfikar Ali, Ms. Puja Sharma, Kunal Sachdeva,
Imran Ali, Parveen Kumar, Ms. Garima Sharma, Ms. Sristi Gupta, Talha
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Abdul Rahman, Mohd. Shaz Khan, Suhail Malik, Neeraj Srivastava,
Asutosh Sharma, Manju Jaitley, M. J. Paul, Ashok Mathur, B. V. Balaram
Das, B. Krishna Prasad, Ms. Shashi Juneja, Satyajeet Kumar, Anupam
Raina, Sunando Raha, Ms. Resmitha R. Chandran, Sawan Kumar Shukla,
Subhash K.R. Chandran, Ummar Farooq, Adil Muneer Andrabi,
Charanjeet Chanderpal, Anil Kumar, Barun Kumar Sinha, Mrs. Pratibha
Sinha, Rakesh Muddgal, B. K. Satija, Abhijeet Shah, Omprakash Ajitsingh
Parihar, Dr. Nishesh Sharma, Ms. Harvinder Chowdhury, Adil Asimi,
Bilal Ahmad, Hamid Shafi, Anwar-ul-Islam, Tufail Qadri, Sanjay K.
Chadda, Dharmendra Kumar Sinha, Ms. Archana Pathak Dave, Satya
Mitra, D.K. Dubey, Santosh Kumar, Vishal Arun, Manoj K. Mishra,
Umesh Dubey, Jyoti Mishra, Bheem Pratap Singh, Sukumar, Mahesh
Thakur, Ms. Madhusmita Bora, Riju Raj Singh Jamwal, Pawan Kishore
Singh, Apoorv Shukla, Pattabhiram, Santosh Kumar Pandey, K. Krishna
Kumar, Ishwariprasad Bagaria, Jog Singh, Rahul G. Tanwani, Manan
Sanghai, V.C. Shukla, Prashant Singh, Kanti, Vinod Prajapati,
Ms. Sindoora VNL, Ms. Aditi Tripathi, Ms. Seoula Vas, Parthsarthi Saraf,
Tarun Gulia, Aishvary Vikram, Sushant Bajaj, Nitesh Ranjan, Anantha
Narayana M.G., Abhimanyu Tewari, Irshad Ahmad, P. S. Sudheer, Bharat
Sood, Rishi Maheshwari, Ms. Anne Mathew, Ms. Shruti Jose,
Ms. Adeeba Mujahid, R.D. Upadhyay, V. K. Biju, Shaji George, Abhay
Pratap Singh, Sahil Tagotra, K. V. Muthu Kumar, Ankit Tripathi, Sandeep
Singh, Vishal Arun, Ms. Sarthak Raizada, Advs. for the appearing parties.
Manohar Lal Sharma, Petitioner-in-person.
Shakir Shabir, Petitioner-in-person.
Intervenor-in-person
The following Order of the Court was passed:
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
DR. SHAH FAESAL AND ORS. v. UNION OF INDIA AND ANR.
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[2020] 3 S.C.R.
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 Sadar-i-Riyasat (now
Governor) of Jammu and Kashmir, acting on the advice of the
Council of Ministers of the State for the time being in office.
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(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 sub-clause (b) shall be issued except in consultation with the
Government of the State:
Provided further that no such order which relates to matters other
than those referred to in the last preceding proviso shall be issued
except with the concurrence of that Government.
(2) If the concurrence of the Government of the State referred to
in paragraph (ii) of sub-clause (b) of clause (1) or in the second
provision to sub-clause (d) of that clause be given before the
Constituent Assembly for the purpose of framing the Constitution
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 Rulewas imposed in exercise of
powers under Article 356 of the Constitution of Indiain the State of Jammu
and Kashmir, which was subsequently extended on 03.7.2019.
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
DR. SHAH FAESAL AND ORS. v. UNION OF INDIA AND ANR.
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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 Sadar-i-Riyasat of Jammu and
Kashmir, acting on the advice of the Council of Ministers of the
State for the time being in office, shall be construed as references
to the Governor of Jammu and Kashmir;
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(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,
by-law, 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 Kashmirin its entirety, like other
States in India.
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7. Challenging the constitutionality of the aforesaid orders,
Mr. Raju Ramachandran, learned senior counsel, has argued on the
validity of the same. However, as mentioned above, Mr. Dinesh Dwivedi
and Mr. Sanjay Parikh, learned senior counsel, sought a reference to a
larger Bench. Therefore, this Court is required to hearthe issue of
reference as a preliminary question.
Contentions
8. Learned senior advocate Mr. DineshDwivedi, after placing
reliance uponthe Constituent Assembly debates and interpreting the
language of Article 370, submitted that Article 370 was a transitory
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 five-judges 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
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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 amendmentsin the
State of Jammu and Kashmir, under Article 368. Therefore, by virtue of
the aforesaid mechanism, it cannot be said that Article 370 was temporary.
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 five-judge Bench decisions of Prem Nath Kaul (supra)
and Sampat Prakash (supra) however if it is held that Prem Nath
Kaul (supra) declared that Article 370 as temporary, then there exists a
conflict with the subsequent holding of Sampat Prakash (supra).
13. The learned Attorney General submitted that the challenge on
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 co-ordinate Bench
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cannot refer the matter to a larger Bench on minor inconsistencies. Rather,
the decisions rendered by an earlier co-ordinate Bench are always binding
on the subsequent Benches of equal strength. However, if the subsequent
Bench expresses doubt on the correctness of the earlier decision rendered
by a Bench of equal strength, the same has to be referred to a larger
Bench.
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 Naphadeand 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 allegedcontradictory views of
this Court in Prem Nath Kaul case (supra) and Sampat
Prakash case (supra)?
iii. Whether Sampat Prakash case (supra) is per incuriam for
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
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confirmation hearing, "It is a jolt to the legal system when you overrule
a precedent. Precedent plays an important role in promoting stability
and even-handedness."1
18. Doctrine of precedents and stare decisis are the core values
of our legal system. They form the tools which further the goal of certainty,
stability and continuity in our legal system. Arguably, judges owe a duty
to the concept of certainty of law, therefore they often justify their
holdings by relying upon the established tenets of law.
19. When a decision is rendered by this Court, it acquires a reliance
interestand the society organizes itself based on the present legal
order.When substantial judicial time and resources are spent on
references, the same should not be made in a casual or cavalier manner.
It is only when a proposition is contradicted by a subsequent judgment
by a Bench of same strength, or it is shown that the proposition laid
down has become unworkable or contrary to a well-established principle,
that a reference will be made to a larger Bench. In this context, a fiveJudge Bench of this Court in Chandra 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 socioeconomic structure that the House of Lords finally decided to exercise
the power of overruling. From then on, there has been a continuous
evolution of guidelines which have modified the basis as to when the
House of Lords could overrule its earlier decisions.
1 Congressional Record-Senate, Vol. 156, Pt. 7, 10018 (June 7, 2010)
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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 co-ordinate 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 two-Judge Bench in Santosh Devi [Santosh
Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 7] should
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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 non-consideration of an earlier precedent by a
coordinate Bench is succinctly delineated by Salmond2 in his book in the
following manner:
...A refusal to follow a precedent, on the other hand, is an act of
co-ordinate, not of superior, jurisdiction. Two courts of equal
authority have no power to overrule each other's decisions.
Where a precedent is merely not followed, the result is not
that the later authority is substituted for the earlier, but
that the two stand side by side conflicting with each other.
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 co-ordinate Bench bind the subsequent Bench.
Ajudgment of this Court can be distinguished into two parts: ratio
decidendi and the obiter dictum.The ratio is the basic essence of the
judgment, and the same must be understood in the context of the relevant
facts of the case.The principle difference between the ratio of a case,
and the obiter, has been elucidated by a three-Judge Bench decision of
this Court in Union of India v. Dhanwanti Devi, (1996) 6 SCC 44
wherein this Court held that:
9. ...It is not everything said by a Judge while giving judgment
that constitutes a precedent. The only thing in a Judge's
decision binding a party is the principle upon which the case
is decided and for this reason it is important to analyse a
2 Salmond on Jurisprudence (P.J. Fitzgerald ed., 12th edn., 1966), p. 147.
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decision and isolate from it the ratio decidendi. ... A decision
is only an authority for what it actually decides. ....The
concrete decision alone is binding between the parties to it, but it
is the abstract ratio decidendi, ascertained on a consideration of
the judgment in relation to the subject-matter of the decision, which
alone has the force of law and which, when it is clear what it was,
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
Halsburyin Quinn v. Leathem, 1901 AC 495 (HL) in the aforesaid terms:
... that every judgment must be read as applicable to the particular
facts proved, or assumed to be proved, since the generality of the
expressions which may be found there are not intended to be
expositions of the whole law, but governed and qualified by the
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 non-consideration of the earlier decision of a co-ordinate
Bench. In the case at hand, one of the main submissions adopted by
those who are seeking reference is that, the case of Sampat Prakash
(supra) did not consider the earlier ruling in the case of Prem Nath
Kaul (supra).
28. The rule of per incuriam has been developed as an exception
to the doctrine of judicial precedent. Literally, it means a judgment passed
in ignorance of a relevant statute or any other binding authority [see
Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 (CA)]. The aforesaid
rule is well elucidated in Halsbury's Laws of Englandin the following
manner3:
1687. ... the court is not bound to follow a decision of its own if
given per incuriam. A decision is given per incuriam when
the court has acted in ignorance of a previous decision of
3 3rd edn., Vol. 22, para 1687, pp. 799-800.
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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 seven-judge
Bench decision of A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602
assumes great relevance:
183. But the point is that the circumstance that a decision is
reached per incuriam, merely serves to denude the decision
of its precedent value.