[Breaking] Article 370: No need for reference to larger Bench, Supreme Court
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[Breaking] Article 370: No need for reference to larger Bench, Supreme Court

Shruti Mahajan

The Supreme Court today held that there was no need to refer the petitions challenging the abrogation of Article 370 of the Constitution to a larger Bench.

The judgment was delivered by a Constitution Bench of Justices NV Ramana, Sanjay Kishan Kaul, R Subhash Reddy, BR Gavai, and Surya Kant after the same was reserved on January 23. The Bench was considering the limited question of reference of the matter to a larger Bench.

Justices NV Ramana, Sanjay Kishan Kaul, R Subhash Reddy, BR Gavai, and Surya Kant
Justices NV Ramana, Sanjay Kishan Kaul, R Subhash Reddy, BR Gavai, and Surya Kant

The Bench found no contradictions between the Supreme Court's judgments of Prem Nath Kaul v. State of Jammu & Kashmir and Sampat Prakash v. State of Jammu & Kashmir, both of which dealt with interpretations of Article 370. Reading both the judgments in light of the context in which they were delivered, the Bench 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.
Supreme Court

While rejecting a contention that the latter case of Sampat Prakash was per incuriam, and therefore not binding, for allegedly having omitted to consider the Prem Nath Kaul case, the Bench also emphasised,

"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."

Supreme Court

The Bench added, "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."

The same five-judge Bench will now hear the petitions on merits. No date has been fixed for the hearing of the case as yet.

A batch of petitions were filed challenging the abrogation of Article 370 and the consequent revocation of the special status granted to Jammu & Kashmir.

These petitions were filed after two Presidential orders of August 5 and August 6 of 2019 paved the way for the abrogation of Article 370 and the subsequent bifurcation of the erstwhile State into two Union territories.

A few of these petitioners had raised the issue of reference to a larger Bench on the ground that there is a conflict between the judgments of the Apex Court in the cases of Prem Nath Kaul and Sampath Prakash. Both these judgments of coordinate Bench strength dealt with the interpretation of Article 370.

Thus, a reference of the present batch of petitions to a larger Bench was sought by a few of the petitioners. The Bench thus, agreed to hear the preliminary issue of reference first.

The Court, after hearing arguments on the issue of reference, had remarked that it would order for a reference only if it finds major contradictions in the two judgments, as claimed by the petitioners.

The Bench had heard arguments by Senior Counsel Raju Ramachandran, Dinesh Dwivedi, Gopal Sankaranarayanan, Sanjay Parikh, and ZA Shah. The Centre, represented by Attorney General KK Venugopal and Solicitor General Tushar Mehta, had opposed the reference.

The petitioners who had argued on reference had submitted that they also reserve the right to argue on merits of the case, to which the Court was in agreement.

[Read the Judgment]

DR. SHAH FAESAL AND ORS. vs.UNION OF INDIA AND ANR..pdf
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