Friday, 16 April 2021

Whether a precedent laid down by a coordinate Bench binds subsequent coordinate Benches?

 This brings us to the question, as to whether a ruling of a

coordinate Bench binds subsequent coordinate Benches. It is

now a settled principle of law that the decisions rendered by a

coordinate Bench is binding on the subsequent Benches of

equal or lesser strength. The aforesaid view is reinforced in the

National Insurance Company Limited v. Pranay Sethi,

(2017) 16 SCC 680 wherein this Court held that:

59.1. The two Judge Bench in Santosh

Devi [Santosh Devi v. National Insurance Co.

Ltd., (2012) 6 SCC 421 7] should have been

well advised to refer the matter to a larger

Bench as it was taking a different view than

what has been Stated in Sarla Verma [Sarla

Verma v. DTC, (2009) 6 SCC 121] , a

judgment by a coordinate Bench. It is

because a coordinate Bench of the same

strength cannot take a contrary view than

what has been held by another coordinate

Bench.

(emphasis supplied) {Para 23}

24. The impact of non consideration of an earlier precedent

by a coordinate Bench is succinctly delineated by Salmond on Jurisprudence (P.J. Fitzgerald ed., 12th edn., 1966), p. 147. in

his book in the following manner:

…A refusal to follow a precedent, on the

other hand, is an act of coordinate, not of

superior, jurisdiction. Two courts of equal

authority have no power to overrule each

other’s decisions. Where a precedent is

merely not followed, the result is not that

the later authority is substituted for the

earlier, but that the two stand side by

side conflicting with each other. The

legal antinomy thus produced must be

solved by the act of a higher authority,

which will in due time decide between the

competing precedents, formally

overruling one of them, and sanctioning

the other as good law. In the meantime the

matter remains at large, and the law

uncertain.

(emphasis supplied)

25. In this line, further enquiry requires us to examine, to

what extent does a ruling of coordinate Bench bind the

subsequent Bench. A judgment of this Court can be

distinguished into two parts: ratio decidendi and the obiter

dictum. The ratio is the basic essence of the judgment, and the

same must be understood in the context of the relevant facts of

the case. The principle difference between the ratio of a case,

and the obiter, has been elucidated by a threeJudge

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 may be found there

are not intended to be expositions of the

whole law, but governed and qualified by the

particular facts of the case in which such

expressions are to be found. The other is

that a case is only an authority for what it

actually decides…

(emphasis supplied)


 IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 1099 OF 2019

DR. SHAH FAESAL Vs  UNION OF INDIA

Dated: MARCH 02, 2020

Citation: (2020) 4 SCC 1, 2020 SCCONLINE SC 263

1. These cases pertain to the constitutional challenge before

this Court as regards to two Constitution Orders issued by the

President of India in exercise of his powers 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 and

the Concurrent List which, in consultation

with the Government of the State, are

declared by the President to correspond to

matters specified in the Instrument of

Accession governing the accession of the

State to the Dominion of India as the

matters with respect to which the Dominion

Legislature may make laws for that State;

and

(ii) such other matters in the said Lists as,

with the concurrence of the Government of

the State, the President may by order

specify.

3

Explanation [1950 wording]: For the

purposes of this article, the Government of

the State means the person for the time

being recognised by the President as the

Maharaja of Jammu and Kashmir acting on

the advice of the Council of Ministers for the

time being in office under the Maharaja's

Proclamation dated the fifth day of March,

1948;

Explanation [1952 wording]: For the

purposes of this article, the Government of

the State means the person for the time

being recognized by the President on the

recommendation of the Legislative Assembly

of the State as the SadariRiyasat

(now

Governor) of Jammu and Kashmir, acting on

the advice of the Council of Ministers of the

State for the time being in office.

(c) The provisions of article 1 and of this

article shall apply in relation to that State;

(d) Such of the other provisions of this

Constitution shall apply in relation to that

State subject to such exceptions and

modifications as the President may by order

specify:

Provided that no such order which relates to

the matters specified in the Instrument of

Accession of the State referred to in

paragraph (i) of subclause

(b) shall be

issued except in consultation with the

Government of the State:

Provided further that no such order which

relates to matters other than those referred

to in the last preceding proviso shall be

issued except with the concurrence of that

Government.

(2) If the concurrence of the Government of

the State referred to in paragraph (ii) of subclause

(b) of clause (1) or in the second

4

provision to subclause

(d) of that clause be

given before the Constituent Assembly for

the purpose of framing the Constitution of

the State is convened, it shall be placed

before such Assembly for such decision as it

may take thereon.

(3) Notwithstanding anything in the

foregoing provisions of this article, the

President may, by public notification,

declare that this article 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

5

MINISTRY OF LAW AND JUSTICE

(Legislative Department) NOTIFICATION

New Delhi, the 5th August, 2019

G.S.R .551(E).— 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 370 of the Constitution, the

President, with the concurrence of the

Government of State of Jammu and

Kashmir, is pleased to make the following

Order:—

1. (1) This Order may be called the

Constitution (Application to Jammu and

Kashmir) Order, 2019.

(2) It shall come into force at once, and shall

thereupon supersede the Constitution

(Application to Jammu and Kashmir) Order,

1954 as amended from time to time.

2. All the provisions of the Constitution, as

amended from time to time, shall apply in

relation to the State of Jammu and Kashmir

and the exceptions and modifications

subject to which they shall so apply shall be

as follows:—

To article 367, there shall be added the

following clause, namely:—

“(4) For the purposes of this Constitution as

it applies in relation to the State of Jammu

and Kashmir—

(a) references to this Constitution or to

the provisions thereof shall be construed as

references to the Constitution or the

6

provisions thereof as applied in relation to

the said State;

(b) references to the person for the

time being recognized by the President on

the recommendation of the Legislative

Assembly of the State as the SadariRiyasat

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;

(c) 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;

and

(d) in proviso to clause (3) of article 370

of this Constitution, the expression

“Constituent Assembly of the State referred

to in clause (2)” shall read “Legislative

Assembly of the State”.”

C.O. 273 of 2019

MINISTRY OF LAW AND JUSTICE

(Legislative Department) NOTIFICATION

New Delhi, the 6th August, 2019

G.S.R. 562(E).— The following Declaration

made by the President is notified for general

information:—

DECLARATION UNDER ARTICLE 370(3) OF

THE CONSTITUTION

C.O. 273

In exercise of the powers conferred by clause

(3) of article 370 read with clause (1) of

7

article 370 of the Constitution of India, the

President, on the recommendation of

Parliament, is pleased to declare that, as

from the 6th August, 2019, all clauses of the

said article 370 shall cease to be operative

except the following which 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, bylaw,

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

8

required to hear the issue of reference as a preliminary

question.

Contentions

8. Learned senior advocate Mr. Dinesh Dwivedi, after placing

reliance upon the Constituent Assembly debates and

interpreting the language of Article 370, submitted that Article

370 was a transitory provision, which provided for an interim

arrangement between the State of Jammu and Kashmir and

the Union of India. It was the Constituent Assembly of Jammu

and Kashmir which took a final decision on the form of

Government the State of Jammu and Kashmir should adopt.

The counsel argued that this Court, in the case of Prem Nath

Kaul v. State of Jammu and Kashmir, AIR 1959 SC 749,

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, AIR 1970 SC

1118 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.

Learned senior counsel contended that this conflict needs

9

reconsideration by a larger Bench.

9. Learned senior advocate Mr. Sanjay Parikh submitted that

after the framing of the Constitution of Jammu and Kashmir,

the first judgment rendered by this Court was by a Bench of

fivejudges

in Prem Nath Kaul (supra). This Court, after widely

discussing the historical background and objective behind the

introduction of Article 370, held that the constitutional

relationship between the State of Jammu and Kashmir and the

Union of India should be finally decided by the Constituent

Assembly of the State and, therefore, the same has to be

treated as a temporary provision.

10. The learned senior counsel further submitted that, the

subsequent cases of Sampat Prakash (supra) and Mohd.

Maqbool Damnoo v. State of Jammu and Kashmir, (1972) 1

SCC 536, have not considered the earlier judgment of Prem

Nath Kaul (supra). On the contrary, this Court in Sampat

Prakash (supra) held that neither the Constituent Assembly

nor the President ever made any declaration that Article 370

has ceased to be operative. Moreover, this Court in the

aforesaid case further held that in the light of the proviso to

10

Article 368, the President under Article 370 is required to

exercise his powers from time to time in order to bring into

effect constitutional amendments in the State of Jammu and

Kashmir, under Article 368. Therefore, by virtue of the

aforesaid mechanism, it cannot be said that Article 370 was

temporary.

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 fivejudge

Bench decisions of

Prem Nath Kaul (supra) and Sampat Prakash (supra)

11

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) is not

sustainable. The judgments must be read in their context. The

earlier decision of Prem Nath Kaul (supra) was regarding

legislative capacity of the Yuvaraj and the Court never intended

on deciding upon the nature of Article 370. However, this Court

for the first time in the case of Sampat Prakash (supra) dealt

with the issue of continuance of powers under Article 370 after

the dissolution of the Constituent Assembly of the State. In

order to substantiate his contentions, he relied upon the

subsequent decision of State Bank of India v. Santosh

Gupta, (2017) 2 SCC 538 wherein this Court, after placing

reliance upon the earlier decisions, concluded that the

Constitution of Jammu and Kashmir is subordinate to that of

the Constitution of India.

12

14. The learned Solicitor General supported the arguments

rendered by the learned Attorney General and submitted that a

coordinate

Bench cannot refer the matter to a larger Bench on

minor inconsistencies. Rather, the decisions rendered by an

earlier coordinate

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.

15. Learned senior advocate, Dr. Rajeev Dhavan, appearing for the

Petitioner in W.P. (C) No. 1165 of 2019, while opposing the

reference, submitted that it is not legally tenable to argue that

Sampat Prakash (supra) is per incuriam as it has not

considered the earlier decision of Prem Nath Kaul (supra) as

the decisions should be studied in their context and hence

have limited application. Moreover, the present case deals with

various other issues which have not been considered by the

previous Bench. The submissions made by Dr. Rajeev Dhavan,

learned senior counsel were supported by learned senior

advocates C.U. Singh, Shekhar Naphade and Gopal

13

Sankaranarayanan, who submitted that the alleged conflict in

the aforesaid judgments do not mandate reference.

16. Based on the submissions of the learned senior counsel, the

following questions of law which can be formulated herein are

as follows.

i. When can a matter be referred to a larger Bench?

ii. Whether there is a requirement to refer the present

matter to a larger Bench in view of the alleged

contradictory views of this Court in Prem Nath

Kaul case(supra) 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

14

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

evenhandedness.”

1

18. Doctrine of precedents and stare decisis are the core values of

our legal system. They form the tools which further the goal of

certainty, stability and continuity in our legal system.

Arguably, judges owe a duty to the concept of certainty of law,

therefore they often justify their holdings by relying upon the

established tenets of law.

19. When a decision is rendered by this Court, it acquires a

reliance interest and the society organizes itself based on the

present legal order. When substantial judicial time and

resources are spent on references, the same should not be

made in a casual or cavalier manner. It is only when a

proposition is contradicted by a subsequent judgment by a

Bench of same strength, or it is shown that the proposition laid

down has become unworkable or contrary to a wellestablished

principle, that a reference will be made to a larger Bench. In

this context, a fiveJudge

Bench of this Court in Chandra

1 Congressional Record—Senate, Vol. 156, Pt. 7, 10018 (June 7, 2010)

15

Prakash v. State of U.P., (2002) 4 SCC 234, after considering

series of earlier ruling reiterated that:

“22. … The doctrine of binding precedent is

of utmost importance in the administration

of our judicial system. It promotes

certainty and consistency in judicial

decisions. Judicial consistency promotes

confidence in the system, therefore, there

is this need for consistency in the

enunciation of legal principles in the

decisions of this Court.”

(emphasis supplied)

20. At the extreme end of this doctrine, we have the example of the

House of Lords, wherein until 1966 it never overruled its

decisions but only distinguished them. It was said that an

erroneous decision of the House of Lords could be set right

only by an Act of Parliament (refer Street Tramways v.

London County Council, [1898] A.C. 375 and Radcliffe v.

Ribbel Motor Service Ltd., [1939] A.C. 215).

21. It is only after 1966, due to pressure and the prevailing socioeconomic

structure that the House of Lords finally decided to

exercise the power of overruling. From then on, there has been

a continuous evolution of guidelines which have modified the

16

basis as to when the House of Lords could overrule its earlier

decisions.

22. It may be necessary to quote the opinion of Chief Justice

Griffith of the High Court of Australia in the Ex Parte

Brisbane Tramways Co. Ltd. (No. 1), [1914] 18 C.L.R 54:

"In my opinion, it is impossible to maintain as

an abstract proposition that Court is either

legally or technically bound by previous

decisions. Indeed, 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

overruling is that a decision is manifestly

wrong and its continuance is injurious to the

public interest".

23. This brings us to the question, as to whether a ruling of a

coordinate Bench binds subsequent coordinate Benches. It is

now a settled principle of law that the decisions rendered by a

coordinate Bench is binding on the subsequent Benches of

equal or lesser strength. The aforesaid view is reinforced in the

National Insurance Company Limited v. Pranay Sethi,

(2017) 16 SCC 680 wherein this Court held that:

59.1. The two Judge Bench in Santosh

Devi [Santosh Devi v. National Insurance Co.

Ltd., (2012) 6 SCC 421 7] should have been

well advised to refer the matter to a larger

Bench as it was taking a different view than

what has been Stated in Sarla Verma [Sarla

Verma v. DTC, (2009) 6 SCC 121] , a

judgment by a coordinate Bench. It is

because a coordinate Bench of the same

strength cannot take a contrary view than

what has been held by another coordinate

Bench.

(emphasis supplied)

24. The impact of non consideration of an earlier precedent

by a coordinate Bench is succinctly delineated by Salmond2 in

his book in the following manner:

…A refusal to follow a precedent, on the

other hand, is an act of coordinate, not of

superior, jurisdiction. Two courts of equal

authority have no power to overrule each

other’s decisions. Where a precedent is

merely not followed, the result is not that

the later authority is substituted for the

earlier, but that the two stand side by

side conflicting with each other. The

legal antinomy thus produced must be

solved by the act of a higher authority,

which will in due time decide between the

competing precedents, formally

overruling one of them, and sanctioning

the other as good law. In the meantime the

matter remains at large, and the law

uncertain.

(emphasis supplied)

25. In this line, further enquiry requires us to examine, to

what extent does a ruling of coordinate Bench bind the

subsequent Bench. A judgment of this Court can be

distinguished into two parts: ratio decidendi and the obiter

dictum. The ratio is the basic essence of the judgment, and the

2Salmond on Jurisprudence (P.J. Fitzgerald ed., 12th edn., 1966), p. 147.


same must be understood in the context of the relevant facts of

the case. The principle difference between the ratio of a case,

and the obiter, has been elucidated by a threeJudge

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 may be found there

are not intended to be expositions of the

whole law, but governed and qualified by the

particular facts of the case in which such

expressions are to be found. The other is

that a case is only an authority for what it

actually decides…

(emphasis supplied)

27. Having discussed the aspect of the doctrine of precedent,

we need to consider another ground on which the reference is

sought, i.e., the relevance of nonconsideration

of the earlier decision of a coordinate

Bench. In the case at hand, one of the

main submissions adopted by those who are seeking reference

is that, the case of Sampat Prakash (supra) did not consider

the earlier ruling in the case of Prem Nath Kaul (supra).

28. The rule of per incuriam has been developed as an exception to

the doctrine of judicial precedent. Literally, it means a

judgment passed in ignorance of a relevant statute or any other

binding authority [see Young v. Bristol Aeroplane Co. Ltd.,

1944 KB 718 (CA)]. The aforesaid rule is well elucidated in

Halsbury's Laws of England in the following manner3:

33rd edn., Vol. 22, para 1687, pp. 799800.

21

1687. … the court is not bound to follow a

decision of its own if given per incuriam. A

decision is given per incuriam when the

court has acted in ignorance of a previous

decision of its own or of a court of a

coordinate jurisdiction which covered the

case before it, or when it has acted in

ignorance of a decision of the House of

Lords. In the former case it must decide

which decision to follow, and in the latter it

is bound by the decision of the House of

Lords.

(emphasis supplied)

29. In this context of the precedential value of a judgment rendered

per incuriam, the opinion of Justice Venkatachaliah, in the

sevenjudge

Bench decision of A.R. Antulay v. R.S. Nayak,

(1988) 2 SCC 602 assumes great relevance:

183. But the point is that the circumstance

that a decision is reached per incuriam,

merely serves to denude the decision of

its precedent value. Such a decision would

not be binding as a judicial precedent. A coordinate

Bench can disagree with it and

decline to follow it. A larger Bench can

overrule such decision. When a previous

decision is so overruled it does not

happen — nor has the overruling Bench

any jurisdiction so to do — that the

finality of the operative order, inter

partes, in the previous decision is

overturned. In this context the word

22

‘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 twojudge

Bench in Sundeep Kumar

23

Bafna v. State of Maharashtra, (2014) 16 SCC 623, wherein

this Court emphasized upon the relevance and the applicability

of the aforesaid rule:

19. It cannot be overemphasized that the

discipline demanded by a precedent or the

disqualification or diminution of a decision

on the application of the per incuriam rule is

of great importance, since without it,

certainty of law, consistency of rulings and

comity of courts would become a costly

casualty. A decision or judgment can be per

incuriam any provision in a statute, rule or

regulation, which was not brought to the

notice of the court. A decision or judgment

can also be per incuriam if it is not

possible to reconcile its ratio with that of

a previously pronounced judgment of a

coequal

or larger Bench; or if the

decision of a High Court is not in

consonance with the views of this Court.

It must immediately be clarified that

the per incuriam rule is strictly and

correctly applicable to the ratio

decidendi and not to obiter dicta.

(emphasis supplied)

32. The view that the subsequent decision shall be declared per

incuriam only if there exists a conflict in the ratio decidendi of

the pertinent judgments was also taken by a fiveJudge

Bench

decision of this Court in Punjab Land Development and

24

Reclamation Corpn. Ltd. v. Presiding Officer, Labour

Court, Chandigarh, (1990) 3 SCC 682:

43. As regards the judgments of the

Supreme Court allegedly rendered in

ignorance of a relevant constitutional

provision or other statutory provisions on

the subjects covered by them, it is true that

the Supreme Court may not be said to

“declare the law” on those subjects if the

relevant provisions were not really present to

its mind. But in this case Sections 25G

and

25H

were not directly attracted and even if

they could be said to have been attracted in

laying down the major premise, they were to

be interpreted consistently with the subject

or context. The problem of judgment per

incuriam when actually arises, should

present no difficulty as this Court can lay

down the law afresh, if two or more of its

earlier judgments cannot stand together.

(emphasis supplied)

33. In order to analyze the contention of the Petitioners that the

judgments in question were per incuriam, we need to

understand the context, ratios of the concerned cases and the

interpretation of Article 370. Once we 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.

25

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 the Jammu and Kashmir State. But

that cannot be a permanent feature of the

Constitution of the State, and hope it will

not be. So the provision is made that

when the Constituent Assembly of the

State has met and taken its decision both

on the Constitution for the State and on

the range of federal jurisdiction over the

State, the President may on the

recommendation of that Constituent

26

Assembly issue an order that this article

306A shall either cease to be operative, or

shall be operative only subject to such

exceptions and modifications as may be

specified by him. But before he issues any

order of that kind the recommendation of

the Constituent Assembly will be a

condition precedent. That explains the

whole of this article.

The effect of this article is that the Jammu

and Kashmir State which is now a part of

India will continue to be a part of India, will

be a unit of the future Federal Republic of

India and the Union Legislature will get

jurisdiction to enact laws on matters

specified either in the Instrument of

Accession or by later addition with the

concurrence of the Government of the State.

And steps have to be taken for the purpose

of convening a Constituent Assembly in due

course which will go into the matters I have

already referred to. When it has come to a

decision on the different matters it will

make a recommendation to the President

who will either abrogate article 306A or

direct that it shall apply with such

modifications and exceptions as the

Constituent Assembly may recommend.

That, Sir, is briefly a description of the effect

of this article, and I hope the House will

carry it.

(emphasis supplied)

27

35. In line with the above observations, Constitution Order 44 was

promulgated under Article 370(3) of the Constitution,

modifying Article 370 of the Constitution by amending the

Explanation in Clause 1 of Article 370 in the following terms:

“Explanation.—For the purposes of this

Article, the Government of the State means

the person for the time being recognised by

the President on the recommendation of the

Legislative Assembly of the State as the

SadarIRiyasat

of Jammu and Kashmir,

acting on the advice of the Council of

Ministers of the State for the time being on

office”

36. Further, the President in exercise of the power conferred upon

him by clause (1) of Article 370 of the Constitution, with the

concurrence of the Government of the 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 SadariRiyasat

of Jammu

and Kashmir, acting on the advice of the

Council of Ministers of the State for the time

28

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 SadariRiyasat

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

developments subsequent to the coming of the Constitution, we

need to look at the cases indicated by the counsel, which

according to them have interpreted the aforesaid provision in a

contradictory manner.

38. The first case which needs to be looked at is the Prem Nath

Kaul case (supra) which dealt with the validity of the Jammu

and Kashmir Big Landed Estate (Abolition) Act, 2007 (17 of

2007 smvt.). 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

29

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 (supra)

regarding Article 370 therefore merit reproduction in their

entirety:

32. Since Mr Chatterjee has strongly relied

on the application of Article 370 of the

Constitution to the State in support of his

argument that the Yuvaraj had ceased to

hold the plenary legislative powers, it is

necessary to examine the provisions of this

article and their effect. This article was

intended to make temporary provisions with

respect to the State of Jammu & Kashmir. It

reads thus:

xxx

Clause (1)(b) of this Article deals with the

legislative power of Parliament to make laws

for the State; and it prescribes limitation in

30

that behalf. Under para (1) of subclause

(b)

of clause (1) Parliament has power to make

laws for the State in respect of matters in

the Union List and the Concurrent List

which the President in consultation with the

Government of the State declares to

correspond to matters specified in the

Instrument of Accession; whereas in regard

to other matters in the said Lists Parliament

may, under para (ii), have power to legislate

for the State after such other matters have

been specified by his order by the President

with the concurrence of the Government of

the State. It is significant that para (i) refers

to consultation with the Government of the

State while para (ii) requires its concurrence.

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. Subclauses

(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.

31

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 the relevant subclauses

of

clause (1) has been given before the

Constituent Assembly of Kashmir has been

convened, such concurrence shall be placed

before such Assembly for such decision as it

may take thereon. This clause show that

the Constitutionmakers

attached great

importance to the final decision of the

Constituent Assembly, and the

continuance of the exercise of powers

conferred on Parliament and the

President by the relevant temporary

provisions of Article 370(1) is made

conditional on the final approval by the

said Constituent Assembly in the said

matters.

35. Clause (3) authorises the President to

declare by public notification that this article

shall cease to be operative or shall be

operative only with specified exceptions or

modifications; but this power can be

exercised by the President only if the

Constituent Assembly of the State makes

recommendation in that behalf. Thus the

proviso to clause (3) also emphasises the

importance which was attached to the

final decision of the Constituent

Assembly of Kashmir in regard to the

relevant matters covered by Article 370.

(emphasis supplied)

32

39. Learned senior counsel, Mr. Dinesh Dwivedi and Mr. Sanjay

Parikh, have given much importance to the above observations

of the Court, and have submitted that the implication of the

above Statements, in line with the observations made in the

Constituent Assembly Debates, is that the exercise of power

under Article 370 of the Constitution of India was contingent

on the existence of the Constituent Assembly of the State of

Jammu and Kashmir, as the Constituent Assembly had the

“final decision” on the matters pertaining to Article 370.

Therefore, according to the learned senior counsel, when the

Constituent Assembly of the State was dissolved subsequent to

the drafting and adoption of the Constitution of Jammu and

Kashmir, the application of Article 370 automatically came to

an end, with no further recourse to the same being possible,

even without any declaration to that effect being made under

Article 370(3) of the Constitution.

40. On this interpretation of the decision in the Prem Nath Kaul

case (supra), 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 (supra). In the

33

Sampat Prakash case (supra), 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. 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 AttorneyGeneral

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

34

incorporated in the Constitution had not

materially altered, and the purpose of

introducing this article was to empower the

President to exercise his discretion in

applying the Indian Constitution while that

situation remained unchanged. There is

considerable force in this submission. The

legislative history of this article cannot,

in these circumstances, be of any

assistance for holding that this article

became ineffective after the Constituent

Assembly of the State had framed the

Constitution for the State.

6. The second submission based on clause

(2) of Article 370 does not find support even

from the language of that clause which only

refers to the concurrence given by the

Government of the State before the

Constituent Assembly was convened, and

makes no mention at all of the completion of

the work of the Constituent Assembly or its

dissolution.

7. There are, however, much stronger

reasons for holding that the provisions of

this article continued in force and

remained effective even after the

Constituent Assembly of the State had

passed the Constitution of the State. The

most important provision in this connection

is that contained in clause (3) of the article

which lays down that this article shall cease

to be operative or shall be operative only

with such exceptions and modifications and

from such date as the President may specify

by public notification, provided that the

recommendation of the Constituent

35

Assembly of the State referred to in clause

(2) shall be necessary before the President

issues such a notification. This clause

clearly envisages that the article will

continue to be operative and can cease to be

operative only if, on the recommendation of

the Constituent Assembly of the State, the

President makes a direction to that effect. In

fact, no such recommendation was made by

the Constituent Assembly of the State, nor

was any order made by the President

declaring that the article shall cease to be

operative. On the contrary, it appears that

the Constituent Assembly of the State made

a recommendation that the article should be

operative with one modification to be

incorporated in the Explanation to clause (1)

of the article. This modification in the article

was notified by the President by Ministry of

Law Order CO 44 dated 15th November,

1952, and laid down that, from 17th

November, 1952, the article was to be

operative with substitution of the new

Explanation for the old Explanation as it

existed at that time. 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

36

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 made by the Constitution Bench in this

case, regarding the importance given to the decision of the

Constituent Assembly of the State of Jammu and Kashmir

needs to be read in the light of these facts.

43. 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

37

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. The rationale for the same is

clear, as the task of the Constituent Assembly was to further

clarify the scope and ambit of the constitutional relationship

between the Union of India and the State of Jammu and

Kashmir, on which the State Government as defined under

Article 370 might have already taken some decisions, before

the convening of the Constituent Assembly, which the

Constituent Assembly in its wisdom, might ultimately not agree

with. Hence, the Court in the case of Prem Nath Kaul (supra)

indicated that the Constituent Assembly’s decision under

Article 370(2) was final. This finality has to be read as being

limited to those decisions taken by the State Government

under Article 370 prior to the convening of the Constituent

Assembly of the State, in line with the language of Article

370(2).

44. Third, the Constitution Bench in the Prem Nath Kaul case

(supra) 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

38

in question before the Court, unlike in the Sampat Prakash

case (supra) 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 (supra) 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.

45. Thus, 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.

46. An additional ground canvassed by the learned senior counsel

is that the judgment of the Court in the Prem Nath Kaul case

(supra) was not considered by the Court in its subsequent

decision in Sampat Prakash case (supra), which is therefore

per incuriam. 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

39

between the opinions of two coordinate

Benches. 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.

47. In light of the aforesaid discussion, we do not see any reason to

refer these petitions to a larger Bench on the questions

considered.

..............................................J.

(N.V. RAMANA)

..............................................J.

(SANJAY KISHAN KAUL)

.............................................J.

(R. SUBHASH REDDY)

..............................................J.

(B. R. GAVAI)

..............................................J.

(SURYA KANT)

NEW DELHI;

MARCH 02, 2020


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