Shah Faesal and Ors. Vs. Union of India (UOI) and Ors.

Judges: N.V. Ramana, Sanjay Kishan Kaul, R. Subhash Reddy, B.R. Gavai and Surya Kant, JJ.

Facts:

These cases pertain to the constitutional challenge before this Court to two Constitution Orders issued by the President of India in exercise of his powers under Article 370 of the Constitution of India. The petitioners 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 this limited preliminary objection.

Issues:

(i) Whether the matter should be referred to a larger Bench on the ground that there were contrary opinions by two different Constitution Benches on the interpretation of Article 370 of the Constitution?

Law:

Constitution of India - Article 370 - Temporary provisions with respect to the State of Jammu and Kashmir

Contentions:

Appellants

(i) Article 370 of the Constitution was a transitory provision, which provided for an interim arrangement between the State of Jammu and Kashmir and the Union of India. This Court, in the case of Prem Nath Kaul v. State of Jammu and Kashmir MANU/SC/0017/1959, after considering the various issues, held that Article 370 was temporary in nature, but the subsequent judgment of Sampat Prakash v. State of Jammu and Kashmir MANU/SC/0320/1968 reversed the aforesaid position, recognizing Article 370 as a permanent provision giving perennial power to the President to regulate the relationship between the Union and the State. This conflict needs reconsideration by a larger Bench.

(ii) Furthermore, in the case of Mohd. Maqbool Damnoo, 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. 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.

(iii) While there is no direct conflict between the aforesaid two five-judge Bench decisions of Prem Nath Kaul and Sampat Prakash. However, if it is held that Prem Nath Kaul declared that Article 370 as temporary, then there exists a conflict with the subsequent holding of Sampat Prakash.

Respondent

(i) The challenge on the ground of an inconsistency between the decisions in Prem Nath Kaul and Sampat Prakash is not sustainable. The judgments must be read in their context. The earlier decision of Prem Nath Kaul was regarding legislative capacity of the Yuvaraj and the Court never intended on deciding upon the nature of Article 370.

(ii) A co-ordinate Bench cannot refer the matter to larger Bench on minor inconsistencies. Rather, the decisions rendered by an earlier co-ordinate Bench are always binding on the subsequent Benches of equal strength. However, if the subsequent Bench expresses doubt on the correctness of the earlier decision rendered by a Bench of equal strength, the same has to be referred to a larger Bench.

Analysis:

(i) 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.

(ii) The Constitution Bench in the Prem Nath Kaul case did not discuss the continuation or cessation of the operation of Article 370 of the Constitution after the dissolution of the Constituent Assembly of the State. This was not an issue in question before the Court, unlike in the Sampat Prakash case where the contention was specifically made before, and refuted by, the Court. This Court sees no reason to read into the Prem Nath Kaul case an interpretation which results in it being in conflict with the subsequent judgments of this Court, particularly when an ordinary reading of the judgment does not result in such an interpretation.

(iii) Thus, 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.

Conclusion:

(i) There is no conflict between the judgments in the Prem Nath Kaul case and the Sampat Prakash case.

Important Precedents:

(i) Prem Nath Kaul v. State of Jammu and Kashmir MANU/SC/0017/1959

(ii) Sampat Prakash v. State of Jammu and Kashmir MANU/SC/0320/1968

(iii) Mohd. Maqbool Damnoo v. State of Jammu and Kashmir, MANU/SC/0175/1972