TMI Blog2020 (3) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 MINISTRY OF LAW AND JUSTICE (Legislative Department) NOTIFICATION New Delhi, the 5th August, 2019 G.S.R. 551(E) : MANU/LEGL/0030/2019.-- 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 37 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, by-law, 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 required to hear the issue of reference as a preliminary question. Contentions 8. Learned senior advocate Mr. Din ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emporary. 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 five-judge Bench decisions of Prem Nath Kaul (supra) and Sampat Prakash (supra) 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) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 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 even-handedness. Congressional Record-Senate, Vol. 156, Pt. 7, 10018 (June 7, 2010) 18. Doctrine of precedents and stare decisis are the core values of our l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndeed, 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 the Court can always listen to argument as to whether it ought to review a particular decision, and the strongest reason for an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 subject-matter 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: ... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntext the word '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 tw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Sadar-i-Riyasat 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; (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 Sadar-i-Riyasat 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 development ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence. 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. Sub-clauses (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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention 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 incorporated in the Constitution had not materially altered, and the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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