The Constitutional Bench comprising of Justice NV Ramana, Justice Sanjay Kishan Kaul, Justice R Subhash Reddy, Justice BR Gavai, and Justice Surya Kant on 2nd March held that there was no need to refer the petition, challenging the abrogation of Article 370 of the Constitution, to a larger bench. The Apex Court held this considering the limited question of reference of the matter to the larger bench.
After the Presidential Order of August 5th and August 6th, that paved the way for removal of Article 370 of the Constitution of India and also bifurcation of the State into two Union Territories, a batch of petitions was filed. The petitions were filed challenging the abrogation of Article 370 of the Constitution of India and the removal of the Special Status of the State of Jammu and Kashmir.
Out of the many petitions filed, few raised the issue of reference that the matter should be referred to a larger bench of the Supreme Court. This was argued on the ground that there is a conflict between the judgments passed by the Hon’ble Supreme Court in the cases of Prem Nath Kaul v. State of Jammu & Kashmir and Sampat Prakash v. State of Jammu & Kashmir. Both the judgments dealt with the interpretation of Article 370 and had coordinate bench strength.
The Supreme Court thus agreed to hear the preliminary issue of reference first. The Apex Court, after hearing both the side argument on the issue of reference, decided that it will refer the matter to a larger bench only if it finds major contradictions between the two judgments, as claimed by the petitioners.
- The Supreme Court refused to refer the petition to a larger bench.
- The Court held that there are no conflicts between the judgments of Prem Nath Kaul v. State of Jammu & Kashmir and Sampat Prakash v. State of Jammu & Kashmir.
- The Court also rejected the contention that the case of Sampat Prakash v. State of Jammu & Kashmir was per incuriam.
The SC’s Order
The Five Judge Constitutional Bench of the Supreme Court, comprising of Justice NV Ramana, Justice Sanjay Kishan Kaul, Justice R Subhash Reddy, Justice BR Gavai, and Justice Surya Kant, held that there was no contradiction between the Apex Courts judgments of Prem Nath Kaul v. State of Jammu & Kashmir and Sampat Prakash v. State of Jammu & Kashmir. Reading bothe judgment in view of the context in which they were delivered, the Court said, “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.”
The Constitutional Bench also rejected the contention that the case of Sampat Prakash v. State of Jammu & Kashmir was per incuriam, which in common language means that the judgment failed to give attention to relevant statutory provisions and precedents. It was contented that the Sampat Prakash case is per incuriam and therefore won’t be binding, as the case failed to take note of the judgment of the Court in Prem Nath Kaul v. State of Jammu & Kashmir. Rejecting this, the bench said, “At the cost of repetition, we note that the rule of per incuriam being an exception to the doctrine of precedents is only applicable to the ratio of the judgment. The same having an impact on the stability of the legal precedents must be applied sparingly, when there is an irreconcilable conflict between the opinions of two coordinate Benches.”
It was further added by the Court that, “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.” The Constitutional Bench of the Supreme Court will now hear the matter on merit. Date of next hearing is yet to be set by the Supreme Court.
Edited by J. Madonna Jephi
Approved & Published – Sakshi Raje
1. Shah Faesal and Ors. v. Union of India & Anr. Writ Petition (civil) No. 1099 of 2019.