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No reasons to refer the petition regarding constitutionality of article 370 to larger bench: SC

Dr. Shah Faesal and ors. V Union of India and anr. Writ petition (civil) no. 1099 of 2019

The judgment was pronounced five judge bench comprising of justice N.V. Ramana, Sanjay Kishan Kaul, R. Subhash Reddy, B. R. Gavai, Surya Kant on march 02, 2020


This case pertains to constitutional challenge before this court regarding two constitutional order passed by president of India in exercise of his powers under article 370 of constitution of India. The learned counsel appearing for petitioner contented that case must be referred to larger bench. The Court issued order limiting only to the preliminary issues whether matter has to be referred to larger bench or not.


The learned counsel for petitioner submitted that, 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 submitted on behalf of petitioner that, the court in case of Prem Nath Kaul v. State of Jammu and Kashmir, AIR 1959 SC 749, held that article 370 was only temporary in nature. But the judgment has been reversed in by subsequent judgment rendered in Sampat Prakash v. State of Jammu and Kashmir, AIR 1970 SC 1118. The judgment are issues by two five-member bench.  Learned senior counsel contended that this conflict needs reconsideration by a larger Bench.

The learned Solicitor General 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.

The 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 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 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.

The court held, 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 subject matter of Prem Nath Kaul and Sampat Prakash was not same. The Prem Nath Kaul does not discuss continuance or cessation of operation of article 370, this issue was first raised in the case Sampat Prakash. Thus, 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.

The Court held, we do not see any reason to refer these petitions to a larger Bench on the questions considered.

– Aarthy K



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