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2020 (3) TMI 1324 - SC - Indian LawsReference of matter to Larger Bench - contrary opinions by two different Constitution Benches on the interpretation of Article 370 of the Constitution - Temporary provisions with respect to the State of Jammu and Kashmir - alleged contradictory views of this Court in PREM NATH KAUL VERSUS THE STATE OF JAMMU & KASHMIR [1959 (3) TMI 73 - SUPREME COURT] and SAMPAT PRAKASH VERSUS STATE OF JAMMU & KASHMIR [1969 (2) TMI 186 - SUPREME COURT] case? - Doctrine of precedents. HELD THAT:- The first case which needs to be looked at is the Prem Nath Kaul case which dealt with the validity of the Jammu and Kashmir Big Landed Estate (Abolition) Act, 2007. 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 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 regarding Article 370 therefore merit reproduction in their entirety - 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. In the Sampat Prakash case, 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. 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 had to determine the legislative competence of the Yuvaraj, in passing a particular enactment - 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 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. This Court is of the opinion that there is no conflict between the judgments in the Prem Nath Kaul case and the Sampat Prakash case. The plea of the counsel to refer the present matter to a larger Bench on this ground is therefore rejected. Doctrine of precedents - HELD 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 co-ordinate Benches. However, as indicated above there are no contrary observations made in the Sampat Prakash case to that of Prem Nath Kaul, accordingly, the case of Sampat Prakash is not per incuriam. There are no reason to refer these petitions to a larger Bench on the questions considered.
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