DR. SHAH FAESAL AND ORS. versus UNION OF INDIA AND ANR.

[2020] 3 S.C.R. 1115

DR. SHAH FAESAL AND ORS.

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, twoConstitution Orders were issued by the President, in exercise ofpower u/Art.370, which made the Constitution of India applicableto the State of Jammu & Kashmir in its entirety, like other States inIndia – Orders challenged – Contentions raised at the outset thatthe present matter needs to be referred to larger Bench as there arecontrary opinions by two different Constitution Benches in PremNath Kaul v. State of Jammu and Kashmir reported as [1959] Suppl.SCR 270 and Sampat Prakash v. State of Jammu and Kashmir reportedas [1970] SCR 365 on the interpretation of Art.370 and that SampatPrakash is per incuriam as it did not consider Prem Nath Kaul – Presentorder confined to preliminary issue of reference – No issueconsidered on merits – Held: Decision rendered by coordinateBench is binding on the subsequent Benches of equal or lesserstrength – However, judgments cannot be interpreted in vacuum,separate from their facts, context – In Prem Nath Kaul, Court had todetermine the legislative competence of the Yuvaraj, in passing aparticular enactment passed during the interregnum period, beforethe 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 ofthe Constituent Assembly of the State of Jammu & Kashmir needs tobe read in the light of these facts – It was indicated that theConstituent Assembly’s decision u/Art.370(2) was final – This finalityhas to be read as being limited to those decisions taken by the StateGovt. u/Art.370 prior to the convening of the Constituent Assemblyof the State, in line with the language of Art.370(2) – Prem NathKaul did not discuss the continuation/cessation of operation ofArt.370 after the dissolution of the Constituent Assembly of the State

A– This issue was not in question before the Court, unlike in SampatPrakash case where the contention was specifically made and refutedby the Court – Rule of per incuriam being an exception to the doctrineof precedents is only applicable to the ratio of the judgment – Thereare no contrary observations made in Sampat Prakash case to thatof Prem Nath Kaul – Sampat Prakash case is not per incuriam – NoBconflict between Prem Nath Kaul and Sampat Prakash – No reasonto refer these petitions to larger Bench on the questions considered– Doctrine of Precedents and stare decisis.

Practice & Procedure – Doctrine of Precedents – Rule of perincuriam, an exception – Applicability of – Held: Rule of per incuriamChas been developed as an exception to the doctrine of judicialprecedent – Literally, it means judgment passed in ignorance of arelevant statute or any other binding authority – Rule of per incuriamis only applicable to the ratio of the judgment – Constitution ofIndia – Art.370.DWords & 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 areEthe core values of legal system. They form the tools which furtherthe goal of certainty, stability and continuity in legal system.Arguably, judges owe duty to the concept of certainty of law,therefore they often justify their holdings by relying upon theestablished tenets of law. When decision is rendered by thisCourt, it acquires reliance interest and the society organizesFitself based on the present legal order. When substantial judicialtime and resources are spent on references, the same shouldnot be made in casual or cavalier manner. It is only when aproposition is contradicted by subsequent judgment by Benchof same strength, or it is shown that the proposition laid downGhas become unworkable or contrary to well-established principle,that reference will be made to larger Bench. [Paras 18,19][1129-B-D]

1.2 judgment of this Court can be distinguished into twoparts: ratio decidendi and the obiter dictum. The ratio is the basic

essence of the judgment, and the same must be understood inthe context of the relevant facts of the case. [Para 25][1131-F-G]

1.3 Judgments cannot be interpreted in vacuum, separatefrom their facts and context. Observations made in judgmentcannot be selectively picked in order to give them particularmeaning. The Court in the Prem Nath Kaul case had to determinethe legislative competence of the Yuvaraj, in passing particularenactment. The enactment was passed during the interregnumperiod, before the formulation of the Constitution of State ofJammu and Kashmir, but after coming into force of theConstitution of India. The observations made by the ConstitutionBench in this case, regarding the importance given to the decisionof the Constituent Assembly of the State of Jammu and Kashmirneeds to be read in the light of these facts. The framework ofArticle 370(2) of the Indian Constitution was such that anydecision taken by the State Government, which was not an electedbody but the Maharaja of the State acting on the advice of theCouncil of Ministers which was in office by virtue of the Maharaja’sproclamation dated March 5, 1948, prior to the sitting of theConstituent Assembly of the State, would have to be placed beforethe Constituent Assembly, for its decision as provided underArticle 370(2) of the Constitution. The rationale for the same isclear, as the task of the Constituent Assembly was to furtherclarify the scope and ambit of the constitutional relationshipbetween the Union of India and the State of Jammu and Kashmir,on which the State Government as defined under Article 370 mighthave already taken some decisions, before the convening of theConstituent Assembly, which the Constituent Assembly in itswisdom, might ultimately not agree with. Hence, the Court in thecase of Prem Nath Kaul indicated that the Constituent Assembly’sdecision under Article 370(2) was final. This finality has to beread as being limited to those decisions taken by the StateGovernment under Article 370 prior to the convening of theConstituent Assembly of the State, in line with the language ofArticle 370(2). The Constitution Bench in the Prem Nath Kaulcase did not discuss the continuation or cessation of the operationof Article 370 of the Constitution after the dissolution of theConstituent Assembly of the State. This was not an issue in

Aquestion before the Court, unlike in the Sampat Prakash casewhere the contention was specifically made before, and refutedby, the Court. This Court sees no reason to read into the PremNath Kaul case an interpretation which results in it being inconflict with the subsequent judgments of this Court, particularlywhen an ordinary reading of the judgment does not result in suchBan interpretation. Thus, there is no conflict between the judgmentsin the Prem Nath Kaul case and the Sampat Prakash case. Theplea of the counsel to refer the present matter to larger Benchon 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 thedoctrine of precedents is only applicable to the ratio of thejudgment. The same having an impact on the stability of the legalprecedents must be applied sparingly, when there is anirreconcilable conflict between the opinions of two co-ordinateDBenches. However, there are no contrary observations made inthe Sampat Prakash case to that of Prem Nath Kaul, accordingly,the case of Sampat Prakash is not per incuriam. No reason isseen to refer these petitions to larger Bench on the questionsconsidered. [Paras 46, 47][1143-B-D]

EA.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 CompanyLimited v. Pranay Sethi (2017) 16 SCC 680 : [2017] 13FSCR 100 ; Union of India v. Dhanwanti Devi (1996) 6SCC 44 : [1996] 5 Suppl. SCR 32 ; Sundeep KumarBafna v. State of Maharashtra (2014) 16 SCC 623 :[2014] 4 SCR 486 ; Punjab Land Development andReclamation Corpn. Ltd. v. Presiding Officer, LabourCourt, Chandigarh (1990) 3 SCC 682 : [1990] 3 SCR G111 – relied on.

Sampat Prakash v. State of Jammu and Kashmir AIR1970 SC 1118 : [1970] SCR 365 – held not perincuriam.

Prem Nath Kaul v. State of Jammu and Kashmir AIR1959 SC 749 : [1959] Suppl. SCR 270 ; Mohd.Maqbool Damnoo v. State of Jammu and Kashmir(1972) 1 SCC 536 : [1972] 2 SCR 1014 ; State Bankof India v. Santosh Gupta (2017) 2 SCC 538 : [2016] 9SCR 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 KB718 (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’sLaws of England 3[rd] edn., Vol.22, para 1687, pp.799-800 – referred to.

Case Law Reference

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)No. 1099 of 2019.

[Under Article 32 of The Constitution of India]

With

AWrit Petition (C) Nos. 396, 756 of 2017, 398, 924, 1092, 1162 of2018, 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. RajeevBDhavan, Dinesh Dwivedi, Shekhar Naphade, Prashanto Sen, RanjitKumar, 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. ArunimaKedia, Amrutanshu Dash, K. K. Mohan, Prateek Dwivedi, KrishnamCMishra, Yasharth Kant, Nishant Singh, Barun Kumar Sinha, Mrs. PratibhaSinha, Anil Kumar, Rakesh Muddgal, Rameshwar Prasad Goyal, VishnuShankar 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,DMs. 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, KaustubhSingh, Arjun Krishnan, Ms. Divya Roy, Yashraj Singh Bundela, SurjeetNehra, Sarthak Raizada, Apoorv Shukla, Aditya Gaggar, Vishal Arun,Santosh, Saif Mahmood, Vivek Agarwal, Ms. Lavanya Bisht, D.EAbhinav 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. SuchitraHrangkhawl, Katubadi Ismail, Wani Yasmeen, Anirudh Sharma, SurjeetSingh, Rahul Tanwani, Ms. Anuradha Mishra, Ms. Kanti, Soayib Qureshi,FDhananjaya Sud, Shrutanjaya Bhardwaj, Vishal Sinha, Ms. CharuAmbwani, Ms. Gayatri Verma, Dharmendra Kumar Sinha, Vikrant Yadav,Puneet Chugh, Ashok Kumar Yadav, Gaurav Dhingra, Ms. Indira, SyedImtiaz 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, TripurariGRay, Balwant Singh Billowria, Atul Wadera, Parveen Kumar, Vijay PratapSingh, 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, MohitChaudhary, Chaudhary Zulfikar Ali, Ms. Puja Sharma, Kunal Sachdeva,HImran Ali, Parveen Kumar, Ms. Garima Sharma, Ms. Sristi Gupta, Talha

Abdul Rahman, Mohd. Shaz Khan, Suhail Malik, Neeraj Srivastava,Asutosh Sharma, Manju Jaitley, M. J. Paul, Ashok Mathur, B. V. BalaramDas, B. Krishna Prasad, Ms. Shashi Juneja, Satyajeet Kumar, AnupamRaina, 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. PratibhaSinha, Rakesh Muddgal, B. K. Satija, Abhijeet Shah, Omprakash AjitsinghParihar, 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, SatyaMitra, D.K. Dubey, Santosh Kumar, Vishal Arun, Manoj K. Mishra,Umesh Dubey, Jyoti Mishra, Bheem Pratap Singh, Sukumar, MaheshThakur, Ms. Madhusmita Bora, Riju Raj Singh Jamwal, Pawan KishoreSingh, Apoorv Shukla, Pattabhiram, Santosh Kumar Pandey, K. KrishnaKumar, Ishwariprasad Bagaria, Jog Singh, Rahul G. Tanwani, MananSanghai, 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, AnanthaNarayana M.G., Abhimanyu Tewari, Irshad Ahmad, P. S. Sudheer, BharatSood, Rishi Maheshwari, Ms. Anne Mathew, Ms. Shruti Jose,Ms. Adeeba Mujahid, R.D. Upadhyay, V. K. Biju, Shaji George, AbhayPratap Singh, Sahil Tagotra, K. V. Muthu Kumar, Ankit Tripathi, SandeepSingh, 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 thisCourt as regards to two Constitution Orders issued by the President ofIndia in exercise of his powers under Article 370 of the Constitution ofIndia.

2. At the outset, learned senior counsel appearing for one of thePetitioners in W.P. (C) No. 1013/19 and Petitioner in W.P. (C) 1368/19raised the contention that the present matter needs to be referred to alarger Bench as there were contrary opinions by two different

AConstitution Benches on the interpretation of Article 370 of theConstitution.This order is confined to the limited preliminary issue ofwhether the matter should be referred to larger Bench. We have notconsidered any issue on the merits of the dispute.

3. brief introduction to the issue to set the context for this orderBis that after the late Maharaja of Kashmir had entered into treaty ofaccession with the Indian State, Article 370 was incorporated into theIndian Constitution, which states as follows:

370. Temporary provisions with respect to the State ofJammu and Kashmir

(1) Notwithstanding anything in this Constitution,—

(a) the provisions of article 238 shall not apply in relation to theState of Jammu and Kashmir;

(b) the power of Parliament to make laws for the said State shallbe limited to—

(i) those matters in the Union List and the Concurrent List which,in consultation with the Government of the State, are declared bythe President to correspond to matters specified in the Instrumentof Accession governing the accession of the State to the Dominionof India as the matters with respect to which the DominionELegislature may make laws for that State; and

(ii) such other matters in the said Lists as, with the concurrenceof the Government of the State, the President may by orderspecify.

FExplanation [1950 wording]: For the purposes of this article, theGovernment of the State means the person for the time beingrecognised by the President as the Maharaja of Jammu andKashmir acting on the advice of the Council of Ministers for thetime being in office under the Maharaja’s Proclamation dated thefifth day of March, 1948;G

Explanation [1952 wording]: For the purposes of this article, theGovernment of the State means the person for the time beingrecognized by the President on the recommendation of theLegislative Assembly of the State as the Sadar-i-Riyasat (nowGovernor) of Jammu and Kashmir, acting on the advice of theHCouncil of Ministers of the State for the time being in office.

(c) The provisions of article 1 and of this article shall apply inrelation to that State;

(d) Such of the other provisions of this Constitution shall apply inrelation to that State subject to such exceptions and modificationsas the President may by order specify:

Provided that no such order which relates to the matters specifiedin the Instrument of Accession of the State referred to in paragraph(i) of sub-clause (b) shall be issued except in consultation with theGovernment of the State:

Provided further that no such order which relates to matters otherthan those referred to in the last preceding proviso shall be issuedexcept with the concurrence of that Government.

(2) If the concurrence of the Government of the State referred toin paragraph (ii) of sub-clause (b) of clause (1) or in the secondprovision to sub-clause (d) of that clause be given before theConstituent Assembly for the purpose of framing the Constitutionof the State is convened, it shall be placed before such Assemblyfor such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of thisarticle, the President may, by public notification, declare that thisarticle shall cease to be operative or shall be operative only withsuch exceptions and modifications and from such date as he mayspecify:

Provided that the recommendation of the Constituent Assemblyof the State referred to in clause (2) shall be necessary before thePresident issues such notification.

Since India’s independence, this Article has remained in theConstitution and has been invoked as and when required.

4. On 20.12.2018,President’s Rulewas imposed in exercise ofpowers under Article 356 of the Constitution of Indiain the State of Jammuand Kashmir, which was subsequently extended on 03.7.2019.

5. On August 5, 2019, two Constitution Orders were issued by thePresident in exercise of his power under Article 370, being C.O. Nos.272 and 273, which are extracted below:

C.O. 272 of 2019

MINISTRY OF LAW AND JUSTICE(Legislative Department) NOTIFICATION

New Delhi, the 5th August, 2019

G.S.R.551(E).— the following Order made by the President ispublished for general information:-

THE CONSTITUTION (APPLICATION TOJAMMU AND KASHMIR) ORDER, 2019C.O. 272

In exercise of the powers conferred by clause (1) of article 370of the Constitution, the President, with the concurrence of theGovernment of State of Jammu and Kashmir, is pleased to makethe following Order:—

1. (1) This Order may be called the Constitution (Application toJammu and Kashmir) Order, 2019.

(2) It shall come into force at once, and shall thereupon supersedethe Constitution (Application to Jammu and Kashmir) Order, 1954as amended from time to time.

2. All the provisions of the Constitution, as amended from time totime, shall apply in relation to the State of Jammu and Kashmirand the exceptions and modifications subject to which they shallso 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 tothe State of Jammu and Kashmir—

(a) references to this Constitution or to the provisions thereofshall be construed as references to the Constitution or theprovisions thereof as applied in relation to the said State;

(b) references to the person for the time being recognizedby the President on the recommendation of the LegislativeAssembly of the State as the Sadar-i-Riyasat of Jammu andKashmir, acting on the advice of the Council of Ministers of theState for the time being in office, shall be construed as referencesto the Governor of Jammu and Kashmir;

(c) references to the Government of the said State shall beconstrued as including references to the Governor of Jammu andKashmir 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 inclause (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 Presidentis 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 370read with clause (1) of article 370 of the Constitution of India, thePresident, on the recommendation of Parliament, is pleased todeclare that, as from the 6th August, 2019, all clauses of the saidarticle 370 shall cease to be operative except the following whichshall read as under, namely:—

“370. All provisions of this Constitution, as amended from time totime, without any modifications or exceptions, shall apply to theState of Jammu and Kashmir notwithstanding anything contrarycontained in article 152 or article 308 or any other article of thisConstitution or any other provision of the Constitution of Jammuand Kashmir or any law, document, judgment, ordinance, order,by-law, rule, regulation, notification, custom or usage having theforce 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 Indiaapplicable to the State of Jammu and Kashmirin its entirety, like otherStates in India.

A7. Challenging the constitutionality of the aforesaid orders,Mr. Raju Ramachandran, learned senior counsel, has argued on thevalidity of the same. However, as mentioned above, Mr. Dinesh Dwivediand Mr. Sanjay Parikh, learned senior counsel, sought reference to alarger Bench. Therefore, this Court is required to hearthe issue ofreference as preliminary question.B

Contentions

8. Learned senior advocate Mr. DineshDwivedi, after placingreliance uponthe Constituent Assembly debates and interpreting thelanguage of Article 370, submitted that Article 370 was transitoryCprovision, which provided for an interim arrangement between the Stateof Jammu and Kashmir and the Union of India. It was the ConstituentAssembly of Jammu and Kashmir which took final decision on theform 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 theDvarious issues, held that Article 370 was temporary in nature, but thesubsequent judgment of Sampat Prakash v. State of Jammu andKashmir, AIR 1970 SC 1118 reversed the aforesaid position, recognizingArticle 370 as permanent provision giving perennial power to thePresident to regulate the relationship between the Union and the State.ELearned senior counsel contended that this conflict needs reconsiderationby larger Bench.

9. Learned senior advocate Mr. Sanjay Parikh submitted that afterthe framing of the Constitution of Jammu and Kashmir, the first judgmentrendered by this Court was by Bench of five-judges in Prem NathFKaul (supra).This Court, after widely discussing the historical backgroundand objective behind the introduction of Article 370, held that theconstitutional relationship between the State of Jammu and Kashmirand the Union of India should be finally decided by the ConstituentAssembly of the State and, therefore, the same has to be treated as atemporary provision.G

10. The learned senior counsel further submitted that, thesubsequent cases of Sampat Prakash (supra) and Mohd. MaqboolDamnoo v. State of Jammu and Kashmir, (1972) 1 SCC 536, have notconsidered the earlier judgment of Prem Nath Kaul (supra).On thecontrary, this Court in Sampat Prakash (supra) held that neither theHConstituent Assembly nor the President ever made any declaration that

Article 370 has ceased to be operative. Moreover, this Court in theaforesaid case further held that in the light of the proviso to Article 368,the President under Article 370 is required to exercise his powers fromtime to time in order to bring into effect constitutional amendmentsin theState of Jammu and Kashmir, under Article 368. Therefore, by virtue ofthe 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 interpretationrendered in Prem Nath Kaul (supra). The aforesaid case also did notdecide as to whether Article 370 can continue after the Constitution ofJammu and Kashmir was enacted. The learned senior counsel finallysubmitted that concurrence under Article 370(1)(d) was subject toratification by the Constituent Assembly and therefore, upon thedissolution of the Constituent Assembly, this power cannot be exercised.

12. Learned senior advocate, Mr. Zafar Shah, representing theJammu and Kashmir High Court Bar Association on the necessity ofreference submitted that while there is no direct conflict between theaforesaid two five-judge Bench decisions of Prem Nath Kaul (supra)and Sampat Prakash (supra) however if it is held that Prem NathKaul (supra) declared that Article 370 as temporary, then there exists aconflict with the subsequent holding of Sampat Prakash (supra).

13. The learned Attorney General submitted that the challenge onthe ground of an inconsistency between the decisions in Prem NathKaul (supra) and Sampat Prakash (supra)is not sustainable. Thejudgments must be read in their context. The earlier decision of PremNath Kaul (supra) was regarding legislative capacity of the Yuvarajand 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 370after the dissolution of the Constituent Assembly of the State. In orderto substantiate his contentions, he relied upon the subsequent decision ofState Bank of India v. Santosh Gupta, (2017) 2 SCC 538 wherein thisCourt, after placing reliance upon the earlier decisions, concluded thatthe Constitution of Jammu and Kashmir is subordinate to that of theConstitution of India.

14. The learned Solicitor General supported the arguments renderedby the learned Attorney General and submitted that co-ordinate Bench

Acannot refer the matter to larger Bench on minor inconsistencies. Rather,the decisions rendered by an earlier co-ordinate Bench are always bindingon the subsequent Benches of equal strength. However, if the subsequentBench expresses doubt on the correctness of the earlier decision renderedby Bench of equal strength, the same has to be referred to largerBench.B

15. Learned senior advocate, Dr. Rajeev Dhavan, appearing forthe 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 ofPrem Nath Kaul (supra) as the decisions should be studied in theirCcontext and hence have limited application. Moreover, the present casedeals with various other issues which have not been considered by theprevious Bench. The submissions made by Dr. Rajeev Dhavan, learnedsenior counsel were supported by learned senior advocates C.U. Singh,Shekhar Naphadeand Gopal Sankaranarayanan, who submitted that theDalleged conflict in the aforesaid judgments do not mandate reference.

16. Based on the submissions of the learned senior counsel, thefollowing questions of law which can be formulated herein are as follows.

i.When can matter be referred to larger Bench?

Eii.Whether there is requirement to refer the present matter toa larger Bench in view of the allegedcontradictory views ofthis Court in Prem Nath Kaul case (supra) and SampatPrakash case (supra)?

iii. Whether Sampat Prakash case (supra) is per incuriam forFnot taking into consideration the decision of the Court in PremNath Kaul case (supra)?

17. This Court’s jurisprudence has shown that usually the Courtsdo not overrule the established precedents unless there is social,constitutional or economic change mandating such development. Thenumbers themselves speak of restraint and the value this Court attachesGto the doctrine of precedent. This Court regards the use of precedent asindispensable bedrock upon which this Court renders justice. The use ofsuch precedents, to some extent, creates certainty upon which individualscan rely and conduct their affairs. It also creates basis for thedevelopment of the rule of law. As the Chief Justice of the SupremeHCourt of the United States, John Roberts observed during his Senate

confirmation hearing, “It is jolt to the legal system when you overrulea precedent. Precedent plays an important role in promoting stabilityand even-handedness.”[1]

18. Doctrine of precedents and stare decisis are the core valuesof our legal system. They form the tools which further the goal of certainty,stability and continuity in our legal system. Arguably, judges owe dutyto the concept of certainty of law, therefore they often justify theirholdings by relying upon the established tenets of law.

19. When decision is rendered by this Court, it acquires relianceinterestand the society organizes itself based on the present legalorder.When substantial judicial time and resources are spent onreferences, the same should not be made in casual or cavalier manner.It is only when proposition is contradicted by subsequent judgmentby Bench of same strength, or it is shown that the proposition laiddown has become unworkable or contrary to well-established principle,that reference will be made to larger Bench. In this context, five-Judge 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 importancein the administration of our judicial system. It promotes certaintyand consistency in judicial decisions. Judicial consistencypromotes confidence in the system, therefore, there is thisneed for consistency in the enunciation of legal principlesin the decisions of this Court.”

(emphasis supplied)

20. At the extreme end of this doctrine, we have the example ofthe House of Lords, wherein until 1966 it never overruled its decisionsbut only distinguished them. It was said that an erroneous decision of theHouse of Lords could be set right only by an Act of Parliament (referStreet Tramways v. London County Council, [1898] A.C. 375 andRadcliffe 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 exercisethe power of overruling. From then on, there has been continuousevolution of guidelines which have modified the basis as to when theHouse of Lords could overrule its earlier decisions.

1 Congressional Record—Senate, Vol. 156, Pt. 7, 10018 (June 7, 2010)

A22. It may be necessary to quote the opinion of Chief JusticeGriffith of the High Court of Australia in the Ex Parte BrisbaneTramways Co. Ltd. (No. 1), [1914] 18 C.L.R 54:

“In my opinion, it is impossible to maintain as an abstractproposition that Court is either legally or technically boundBby previous decisions. Indeed, it may, in proper case,be its duty to disregard them. But the rule should be appliedwith great caution, and only when the previous decision ismanifestly wrong, as, for instance, if it proceeded uponthe mistaken assumption of the continuance of repealedor expired Statute, or is contrary to decision of anotherCCourt which this Court is bound to follow; not, I think,upon mere suggestion, that some or all of the membersof the later Court might arrive at different conclusion ifthe matter was res integra. Otherwise there would be greatdanger of want of continuity in the interpretation of law.”

DIn the same case, Barton, J. observed as follows:

“ ....I would say that I never thought that it was not opento this Court to review its previous decisions upon goodcause. The question is not whether the Court can do so,but whether it will, having due regard to the need forEcontinuity and consistency in the judicial decision.Changes in the number of appointed Justices can, I takeit, never of themselves furnish reason for review... Butthe Court can always listen to argument as to whether itought to review particular decision, and the strongestFreason for an overruling is that decision is manifestlywrong and its continuance is injurious to the publicinterest”.23. This brings us to the question, as to whether ruling of co-ordinate Bench binds subsequent co-ordinate Benches. It is now settledGprinciple of law that the decisions rendered by coordinate Bench isbinding on the subsequent Benches of equal or lesser strength. Theaforesaid view is reinforced in the National Insurance CompanyLimited v. Pranay Sethi, (2017) 16 SCC 680 wherein this Court heldthat:

59.1. The two-Judge Bench in Santosh Devi [SantoshHDevi v. National Insurance Co. Ltd., (2012) 6 SCC 421 7] should

have been well advised to refer the matter to larger Bench as itwas taking different view than what has been Stated in SarlaVerma [Sarla Verma v. DTC, (2009) 6 SCC 121] , judgment bya coordinate Bench. It is because coordinate Bench of thesame strength cannot take contrary view than what hasbeen held by another coordinate Bench.

(emphasis supplied)

24. The impact of non-consideration of an earlier precedent by acoordinate Bench is succinctly delineated by Salmond[2 ]in his book in thefollowing manner:

…A refusal to follow precedent, on the other hand, is an act ofco-ordinate, not of superior, jurisdiction. Two courts of equalauthority have no power to overrule each other’s decisions.Where precedent is merely not followed, the result is notthat the later authority is substituted for the earlier, butthat the two stand side by side conflicting with each other.The legal antinomy thus produced must be solved by theact of higher authority, which will in due time decidebetween the competing precedents, formally overruling oneof them, and sanctioning the other as good law. In themeantime the matter remains at large, and the law uncertain.

(emphasis supplied)

25. In this line, further enquiry requires us to examine, to whatextent does ruling of co-ordinate Bench bind the subsequent Bench.Ajudgment of this Court can be distinguished into two parts: ratiodecidendi and the obiter dictum.The ratio is the basic essence of thejudgment, and the same must be understood in the context of the relevantfacts of the case.The principle difference between the ratio of case,and the obiter, has been elucidated by three-Judge Bench decision ofthis Court in Union of India v. Dhanwanti Devi, (1996) 6 SCC 44wherein this Court held that:

9. …It is not everything said by Judge while giving judgmentthat constitutes precedent. The only thing in Judge’sdecision binding party is the principle upon which the caseis decided and for this reason it is important to analyse

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

1132SUPREME COURT REPORTS

Adecision and isolate from it the ratio decidendi. … decisionis only an authority for what it actually decides. ….Theconcrete decision alone is binding between the parties to it, but itis the abstract ratio decidendi, ascertained on consideration ofthe judgment in relation to the subject-matter of the decision, whichalone has the force of law and which, when it is clear what it was,Bis binding. It is only the principle laid down in the judgmentthat is binding law under Article 141 of the Constitution.

(emphasis supplied)

26. The aforesaid principle has been concisely stated by LordCHalsburyin Quinn v. Leathem, 1901 AC 495 (HL) in the aforesaid terms:

… that every judgment must be read as applicable to the particularfacts proved, or assumed to be proved, since the generality of theexpressions which may be found there are not intended to beexpositions of the whole law, but governed and qualified by theDparticular facts of the case in which such expressions are to befound. The other is that case is only an authority for what itactually decides…

(emphasis supplied)

27. Having discussed the aspect of the doctrine of precedent, weEneed to consider another ground on which the reference is sought,i.e.,the relevance of non-consideration of the earlier decision of co-ordinateBench. In the case at hand, one of the main submissions adopted bythose who are seeking reference is that, the case of Sampat Prakash(supra) did not consider the earlier ruling in the case of Prem NathFKaul (supra).

28. The rule of per incuriam has been developed as an exceptionto the doctrine of judicial precedent. Literally, it means judgment passedin ignorance of relevant statute or any other binding authority [seeYoung v. Bristol Aeroplane Co. Ltd., 1944 KB 718 (CA)]. The aforesaidrule is well elucidated in Halsbury’s Laws of Englandin the followingGmanner[3]:

1687. … the court is not bound to follow decision of its own ifgiven per incuriam. decision is given per incuriam whenthe court has acted in ignorance of previous decision of

its own or of court of coordinate jurisdiction whichcovered the case before it, or when it has acted in ignoranceof decision of the House of Lords. In the former case itmust decide which decision to follow, and in the latter it is boundby the decision of the House of Lords.

(emphasis supplied)

29. In this context of the precedential value of judgment renderedper incuriam, the opinion of Justice Venkatachaliah, in the seven-judgeBench decision of A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602assumes great relevance:

183. But the point is that the circumstance that decision isreached per incuriam, merely serves to denude the decisionof its precedent value. Such decision would not be binding asa judicial precedent. co-ordinate Bench can disagree with itand decline to follow it. larger Bench can overrule such decision.When 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, inthe previous decision is overturned. In this context theword ‘decision’ means only the reason for the previousorder and not the operative order in the previous decision,binding inter partes. …Can such decision be characterisedas one reached per incuriam? Indeed, Ranganath Misra, J. saysthis on the point: (para 105)

“Overruling when made by larger Bench of an earlierdecision of smaller one is intended to take away the precedentvalue of the decision without effecting the binding effect ofthe decision in the particular case. Antulay, therefore, is notentitled to take advantage of the matter being before largerBench.”

(emphasis supplied)

30. The counsel arguing against the reference have asserted thatthe rule of per incuriam is limited in its application and is contextual innature. They further contend that there needs to be specific contraryobservations which were laid without considering the relevant decisionson the point, in which case alone the principle of per incuriam applies.

A31. Therefore, the pertinent question before us is regarding theapplication of the rule of per incuriam. This Court while deciding thePranay Sethi case (supra), referred to an earlier decision rendered bya two-judge Bench in Sundeep Kumar Bafna v. State of Maharashtra,(2014) 16 SCC 623, wherein this Court emphasized upon the relevanceand the applicability of the aforesaid rule:B

19. It cannot be overemphasized that the discipline demanded bya precedent or the disqualification or diminution of decision onthe application of the per incuriam rule is of great importance,since without it, certainty of law, consistency of rulings and comityof courts would become costly casualty. decision or judgmentCcan be per incuriam any provision in statute, rule or regulation,which was not brought to the notice of the court. decision orjudgment can also be per incuriam if it is not possible toreconcile its ratio with that of previously pronouncedjudgment of co-equal or larger Bench; or if the decisionDof High Court is not in consonance with the views of thisCourt. It must immediately be clarified that the perincuriam rule is strictly and correctly applicable to the ratiodecidendi and not to obiter dicta.

(emphasis supplied)

32. The view that the subsequent decision shall be declared perincuriam only if there exists conflict in the ratio decidendi of thepertinent judgments was also taken by five-Judge Bench decision ofthis Court in Punjab Land Development and Reclamation Corpn.Ltd. v. Presiding Officer, Labour Court, Chandigarh, (1990) 3 SCC682:F

43. As regards the judgments of the Supreme Court allegedlyrendered in ignorance of relevant constitutional provision or otherstatutory provisions on the subjects covered by them, it is truethat the Supreme Court may not be said to “declare the law” onGthose subjects if the relevant provisions were not really present toits mind. But in this case Sections 25-G and 25-H were not directlyattracted and even if they could be said to have been attracted inlaying down the major premise, they were to be interpretedconsistently with the subject or context. The problem ofjudgment per incuriam when actually arises, should present

no difficulty as this Court can lay down the law afresh, if twoor more of its earlier judgments cannot stand together.

(emphasis supplied)

33. In order to analyze the contention of the Petitioners that thejudgments in question were per incuriam, we need to understand thecontext, ratios of the concerned cases and the interpretation of Article370. Once we have noted the evolution of Article 370, we would be ableto appreciate the context of the cases which are sought to be portrayedas being contradictory.

34. Under the draft Constitution, Article 370 of the Constitutionwas draft Article 306A, which was introduced in the Constituent Assemblyon 17.10.1947, by N. Gopalaswami Ayyangar, who stated as under:

N. Gopalaswami Ayyangar

Sir, this matter, the matter of this particular motion, relates tothe Jammu and Kashmir State. The House is fully aware ofthe fact that the State has acceded to the Dominion of India.The history of this accession is also well know. The accessiontook place on the 26th October, 1947. Since then, the State hashad chequered history. Conditions are not yet normal in theState. The meaning of this accession is that at presentthat State is unit of federal State, namely, the Dominionof India. This Dominion is getting transformed into aRepublic, which will be inaugurated on the 26th January,1950. The Jammu and Kashmir State, therefore, has tobecome unit of the new Republic of India.

The last clause refers to what may happen later on. We havesaid article 211A will not apply to the Jammu and KashmirState. But that cannot be permanent feature of theConstitution of the State, and hope it will not be. So theprovision is made that when the Constituent Assemblyof the State has met and taken its decision both on theConstitution for the State and on the range of federaljurisdiction over the State, the President may on therecommendation of that Constituent Assembly issue anorder that this article 306A shall either cease to be

operative, or shall be operative only subject to suchexceptions and modifications as may be specified by him.But before he issues any order of that kind therecommendation of the Constituent Assembly will be acondition precedent. That explains the whole of thisarticle.

The effect of this article is that the Jammu and Kashmir Statewhich is now part of India will continue to be part of India,will be unit of the future Federal Republic of India and theUnion Legislature will get jurisdiction to enact laws on mattersspecified either in the Instrument of Accession or by laterCaddition with the concurrence of the Government of the State.And steps have to be taken for the purpose of convening aConstituent Assembly in due course which will go into thematters I have already referred to. When it has come to adecision on the different matters it will make aDrecommendation to the President who will either

abrogate article 306A or direct that it shall apply withsuch modifications and exceptions as the ConstituentAssembly may recommend. That, Sir, is briefly descriptionof the effect of this article, and I hope the House will carry it.

(emphasis supplied)

35. In line with the above observations, Constitution Order 44was promulgated under Article 370(3) of the Constitution, modifyingArticle 370 of the Constitution by amending the Explanation in Clause 1of Article 370 in the following terms:

“Explanation.—For the purposes of this Article, the Governmentof the State means the person for the time being recognised bythe President on the recommendation of the Legislative Assemblyof the State as the Sadar-I-Riyasat of Jammu and Kashmir, actingon the advice of the Council of Ministers of the State for the timeGbeing on office”

36. Further, the President in exercise of the power conferred uponhim by clause (1) of Article 370 of the Constitution, with the concurrenceof the Government of the State of Jammu and Kashmir, issued theConstitution (Application to Jammu and Kashmir) Second AmendmentOrder, 1965, which further brought about change through amendment to

Article 367 as applicable to the State of Jammu and Kashmir. Theaforesaid amendment can be observed as under:

“(aa) references to the person for the time being recognised bythe President on the recommendation of the Legislative Assemblyof the State as the Sadar-i-Riyasat of Jammu and Kashmir, actingon the advice of the Council of Ministers of the State for the timebeing in office, shall be construed as references to the Governorof Jammu and Kashmir;

(b) references to the Government of the said State shall beconstrued as including references to the Governor of Jammu andKashmir acting on the advice of his Council of Ministers:

Provided that in respect of any period prior to the 10th day ofApril, 1965, such references shall be construed as includingreferences to the Sadar-i-Riyasat acting on the advice of hisCouncil 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 anddevelopments subsequent to the coming of the Constitution, we need tolook at the cases indicated by the counsel, which according to themhave interpreted the aforesaid provision in contradictory manner.

38. The first case which needs to be looked at is the Prem NathKaul case (supra) which dealt with the validity of the Jammu andKashmir Big Landed Estate (Abolition) Act, 2007 (17 of 2007 smvt.).The main contention on which the Act was impugned was that the Yuvarajdid not have the constitutional authority to promulgate the said Act. Oneof the arguments canvassed by the Petitioner in that case related to theeffect of Article 370 of the Constitution of India on the powers of theYuvaraj. The Constitution Bench, in deciding that it would be unreasonableto hold that Article 370 could have affected, or was intended to affect,the plenary powers of the Maharaja, made certain observations relatingto Article 370 of the Constitution, which the counsel before us arguingfor reference have relied upon. The observations of the ConstitutionBench in the Prem Nath Kaul case (supra) regarding Article 370therefore merit reproduction in their entirety:

32. Since Mr Chatterjee has strongly relied on the application ofArticle 370 of the Constitution to the State in support of hisargument that the Yuvaraj had ceased to hold the plenary legislativepowers, it is necessary to examine the provisions of this articleand their effect. This article was intended to make temporaryprovisions with respect to the State of Jammu & Kashmir. It readsthus:

xxx

Clause (1)(b) of this Article deals with the legislative power ofParliament to make laws for the State; and it prescribes limitationCin that behalf. Under para (1) of sub-clause (b) of clause (1)Parliament has power to make laws for the State in respect ofmatters in the Union List and the Concurrent List which thePresident in consultation with the Government of the State declaresto correspond to matters specified in the Instrument of Accession;whereas in regard to other matters in the said Lists ParliamentDmay, under para (ii), have power to legislate for the State aftersuch other matters have been specified by his order by the Presidentwith the concurrence of the Government of the State. It issignificant that para (i) refers to consultation with the Governmentof the State while para (ii) requires its concurrence. Having thusEprovided for consultation with, and the concurrence of, theGovernment of the State, the explanation shows what theGovernment of the State means in this context. It means accordingto the appellant, not the Maharaja acting by himself in his owndiscretion, but the person who is recognised as the Maharaja bythe President acting on the advice of the Council of Ministers forFthe time being in office. It is on this explanation that the appellanthas placed considerable reliance.

33. Sub-clauses (c) and (d) of clause (1) of the Article providerespectively that the provisions of Article 1 and of the presentarticle shall apply in relation to the State; and that the otherprovisions of the Constitution shall apply in relation to it subject toexceptions and modifications specified by the Presidential order.These provisions are likewise made subject to consultation with,or concurrence of, the Government of the State respectively.

34. Having provided for the legislative power of Parliament andHfor the application of the articles of the Constitution of the State,

Article 370 clause (2) prescribes that if the concurrence of theGovernment of the State required by the relevant sub-clauses ofclause (1) has been given before the Constituent Assembly ofKashmir has been convened, such concurrence shall be placedbefore such Assembly for such decision as it may take thereon.This clause show that the Constitution-makers attachedgreat importance to the final decision of the ConstituentAssembly, and the continuance of the exercise of powersconferred on Parliament and the President by the relevanttemporary provisions of Article 370(1) is made conditionalon the final approval by the said Constituent Assembly inthe said matters.

35. Clause (3) authorises the President to declare by publicnotification that this article shall cease to be operative or shall beoperative only with specified exceptions or modifications; but thispower can be exercised by the President only if the ConstituentAssembly of the State makes recommendation in that behalf. Thus

the proviso to clause (3) also emphasises the importancewhich was attached to the final decision of the ConstituentAssembly of Kashmir in regard to the relevant matterscovered by Article 370.

(emphasis supplied)

39. Learned senior counsel, Mr. Dinesh Dwivedi and Mr. SanjayParikh, have given much importance to the above observations of theCourt, 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 ofIndia was contingent on the existence of the Constituent Assembly ofthe 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 Assemblyof the State was dissolved subsequent to the drafting and adoption of theConstitution of Jammu and Kashmir, the application of Article 370automatically came to an end, with no further recourse to the samebeing possible, even without any declaration to that effect being madeunder Article 370(3) of the Constitution.

40. On this interpretation of the decision in the Prem Nath Kaulcase (supra), the learned senior counsel submit that there exists conflict

Awith the dicta of another Constitution Bench of this Court in the SampatPrakash case (supra). In the Sampat Prakash case (supra), this Courtwas seized of matter pertaining to the detention of the petitioner in thatcase under the Jammu and Kashmir Preventive Detention Act 13 of1964. The main point canvassed before the Constitution Bench waswhether the continuation of Article 35(c) of the Constitution (as applicableBto the State of Jammu and Kashmir), which gave protection to any lawrelating to preventive detention in Jammu and Kashmir, throughsuccessive Constitution Orders passed in exercise of the powers of thePresident under Article 370 of the Constitution, in 1959 and 1964, wasvalid. The Court held that the Constitution Orders were validly passed inCexercise of the power under Article 370 of the Constitution, whichcontinued beyond the date of dissolution of the Constituent Assembly. Inthis regard, this Court held as follows:5. We are not impressed by either of these two argumentsadvanced by Mr Ramamurthy. So far as the historical backgroundDis concerned, the Attorney-General appearing on behalf of theGovernment also relied on it to urge that the provisions of Article370 should be held to be continuing in force, because the situationthat existed when this article was incorporated in the Constitutionhad not materially altered, and the purpose of introducing this articlewas to empower the President to exercise his discretion in applyingEthe Indian Constitution while that situation remained unchanged.There is considerable force in this submission. The legislativehistory of this article cannot, in these circumstances, be ofany assistance for holding that this article became ineffectiveafter the Constituent Assembly of the State had framed theFConstitution for the State.

6. The second submission based on clause (2) of Article 370 doesnot find support even from the language of that clause which onlyrefers to the concurrence given by the Government of the Statebefore the Constituent Assembly was convened, and makes noGmention at all of the completion of the work of the ConstituentAssembly or its dissolution.

7. There are, however, much stronger reasons for holdingthat the provisions of this article continued in force andremained effective even after the Constituent Assembly ofHthe 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 tobe operative or shall be operative only with such exceptions andmodifications and from such date as the President may specifyby public notification, provided that the recommendation of theConstituent Assembly of the State referred to in clause (2) shallbe necessary before the President issues such notification. Thisclause clearly envisages that the article will continue to be operativeand can cease to be operative only if, on the recommendation ofthe Constituent Assembly of the State, the President makes adirection to that effect. In fact, no such recommendation wasmade by the Constituent Assembly of the State, nor was any ordermade by the President declaring that the article shall cease to beoperative. On the contrary, it appears that the Constituent Assemblyof the State made recommendation that the article should beoperative with one modification to be incorporated in theExplanation to clause (1) of the article. This modification in thearticle was notified by the President by Ministry of Law OrderCO 44 dated 15th November, 1952, and laid down that, from 17thNovember, 1952, the article was to be operative with substitutionof the new Explanation for the old Explanation as it existed at thattime. This makes it very clear that the Constituent Assembly ofthe State did not desire that this article should cease to be operativeand, in fact, expressed its agreement to the continued operationof this article by making recommendation that it should beoperative with this modification only.

(emphasis supplied)

41. The learned senior counsel urge that these two judgments byConstitution Benches of this Court are in direct conflict with one another,and as such, the present petitions require to be referred to larger Bench.However, we are not in agreement with this submission of the learnedsenior counsel.

42. First, it is worth highlighting that judgments cannot beinterpreted in vacuum, separate from their facts and context.Observations made in judgment cannot be selectively picked in orderto give them particular meaning. The Court in the Prem Nath Kaulcase (supra) had to determine the legislative competence of the Yuvaraj,in passing particular enactment. The enactment was passed during the

Ainterregnum period, before the formulation of the Constitution of Stateof Jammu and Kashmir, but after coming into force of the Constitutionof India. The observations made by the Constitution Bench in this case,regarding the importance given to the decision of the Constituent Assemblyof the State of Jammu and Kashmir needs to be read in the light of thesefacts.B

43. Second, the framework of Article 370(2) of the IndianConstitution was such that any decision taken by the State Government,which was not an elected body but the Maharaja of the State acting onthe advice of the Council of Ministers which was in office by virtue ofthe Maharaja’s proclamation dated March 5, 1948, prior to the sitting ofCthe Constituent Assembly of the State, would have to be placed beforethe 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 theConstituent Assembly was to further clarify the scope and ambit of theconstitutional relationship between the Union of India and the State ofDJammu and Kashmir, on which the State Government as defined underArticle 370 might have already taken some decisions, before theconvening of the Constituent Assembly, which the Constituent Assemblyin its wisdom, might ultimately not agree with. Hence, the Court in thecase of Prem Nath Kaul (supra) indicated that the ConstituentAssembly’s decision under Article 370(2) was final. This finality has toEbe read as being limited to those decisions taken by the State Governmentunder Article 370 prior to the convening of the Constituent Assembly ofthe 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 ofFArticle 370 of the Constitution after the dissolution of the ConstituentAssembly of the State. This was not an issue in question before theCourt, unlike in the Sampat Prakash case (supra) where the contentionwas specifically made before, and refuted by, the Court. This Courtsees no reason to read into the Prem Nath Kaul case (supra) anGinterpretation which results in it being in conflict with the subsequentjudgments of this Court, particularly when an ordinary reading of thejudgment does not result in such an interpretation.

45. Thus, this Court is of the opinion that there is no conflictbetween the judgments in the Prem Nath Kaul case (supra) and the

Sampat Prakash case (supra). The plea of the counsel to refer thepresent matter to larger Bench on this ground is therefore rejected.

46. An additional ground canvassed by the learned senior counselis that the judgment of the Court in the Prem Nath Kaul case (supra)was not considered by the Court in its subsequent decision in SampatPrakash case (supra), which is therefore per incuriam. At the cost ofrepetition, we note that the rule of per incuriam being an exception tothe doctrine of precedents is only applicable to the ratio of the judgment.The same having an impact on the stability of the legal precedents mustbe applied sparingly, when there is an irreconcilable conflict betweenthe opinions of two co-ordinate Benches. However, as indicated abovethere are no contrary observations made in the Sampat Prakash case(supra) to that of Prem Nath Kaul (supra), accordingly, the case ofSampat Prakash (supra) is not per incuriam.

47. In light of the aforesaid discussion, we do not see any reasonto refer these petitions to larger Bench on the questions considered.

Divya Pandey

Petitions disposed of.