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    

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REPORTABLE

WRIT PETITION (CIVIL) NO. 1037 OF 2019    

WRIT PETITION (CIVIL) NO. 1062 OF 2019    

WRIT PETITION (CIVIL) NO. 1070 OF 2019    

WRIT PETITION (CIVIL) NO. 1104 OF 2019    

WRIT PETITION (CIVIL) NO. 1165 OF 2019    

WRIT PETITION (CIVIL) NO. 1210 OF 2019    

WRIT PETITION (CIVIL) NO. 1222 OF 2019    

WRIT PETITION (CIVIL) NO. 1268 OF 2019    

WRIT PETITION (CIVIL) NO. 1368 OF 2019    

ORDER    

1. These cases pertain to the constitutional challenge before

this Court as regards to two Constitution Orders issued by the

President of India in exercise of his powers under Article 370 of

the Constitution of India.  2. At the outset, learned senior counsel appearing for one of

the Petitioners in W.P. (C) No. 1013/19 and Petitioner in W.P.

(C) 1368/19 raised the contention that the present matter

needs to be referred to a larger Bench as there were contrary

opinions by two different Constitution Benches on the

interpretation of Article 370 of the Constitution. This order is

confined to the limited preliminary issue of whether the matter

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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.

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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

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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

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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

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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

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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

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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

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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

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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)

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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.

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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

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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

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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)

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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

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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

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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)

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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.

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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:

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… 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.

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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

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‘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

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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

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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.

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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

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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)

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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

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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

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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:

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Clause (1)(b) of this  Article  deals  with the legislative power of Parliament to make laws for the State; and it prescribes limitation in

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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.

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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)

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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

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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

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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

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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

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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

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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

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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

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between the opinions of two co­ordinate Benches. However, as

indicated above there are no contrary observations made in the

Sampat  Prakash  case  (supra) to that  of  Prem Nath Kaul

(supra), accordingly, the case of  Sampat Prakash  (supra) is

not per incuriam.

47. In light of the aforesaid discussion, we do not see any reason to

refer these petitions to a larger Bench on the questions

considered.

..............................................J.                                                     (N.V. RAMANA)

                       ..............................................J.

                                                   (SANJAY KISHAN KAUL)

.............................................J.              (R. SUBHASH REDDY)

..............................................J.               (B. R. GAVAI)

..............................................J.               (SURYA KANT)

NEW DELHI; MARCH 02, 2020

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