Eight months after scrapping of Article 370, On 2 March 2020, a 5-judge bench hearing the Article 370 petitions rejected the request to refer these petitions to a larger bench. The immediate issues before the Court were:
Circumstances in which a case may be referred to a larger bench;
Whether there is a requirement to make a reference in the present case; and
Whether Sampat Prakash is per incuriam for not following the decision in Prem Nath Kaul.
The Court answered the first issue stating that a reference is made only when “a proposition is contradicted by a subsequent judgment of the same Bench, or it is shown that the proposition laid down has become unworkable or contrary to a well established principle”. Since the decisions in both Prem Nath Kaul and Sampat Prakash (two important precedents relating to Article 370) were delivered by benches of same strength, the Court made it a point to clarify that the decision of a bench has to be indeed followed by subsequent co-ordinate benches.
Regarding the second issue, the Court held that a judgment may be considered per incuriam only if it has been decided without paying attention to the basic essence/principle (referred to as ‘ratio decidendi’) laid down in a previous judgment.
The contention of petitioners was that there was a conflict between observations made in Sampat Prakash and Prem Nath Kaul. They asserted that Prem Nath Kaul had made it clear that the Parliamentary and Presidential powers under Article 370 was subject to the final decision of the Jammu and Kashmir Constituent Assembly. Once the Assembly was dissolved, these powers were no longer exercisable. Then, in Sampat Prakash, it was approved that a Presidential order under Article 370, post the dissolution of the Constituent Assembly. Thus, it created an inexorable conflict between these two decisions.
However, Court emphatically rejected the contention that there was any such conflict stating that there was a fundamental difference in circumstances and issues in these two cases. Finally, on the question of whether Sampat Prakash was per incuriam, the Court reiterated that there were no contrary observations made in the said judgment to that of Prem Nath Kaul.
Written by Marina Nasreen, a fourth year law student at University of Kashmir, Intern at S. Bhambri Associates.