Article 370| Here’s why the 5-judge bench refused to refer the pleas challenging the abrogation of Article 370 to a larger bench

Supreme Court: The 5-judge Constitution bench of NV Ramana, SK Kaul, R. Subhash Reddy, BR Gavai and Surya Kant, JJ has refused to refer the petitions challenging the constitutional validity of the Centre’s move to abrogate Article 370 to a larger bench.

The Court was hearing the limited issue regarding the reference being made to a larger bench in the light of the fact that in the case of Prem Nath Kaul v State of Jammu and Kashmir, after considering the various issues, held that Article 370 was temporary in nature, however, the subsequent judgment of Sampat Prakash v. State of Jammu and Kashmir, 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.

Holding that there is no conflict between the judgments in the Prem Nath Kaul case and the Sampat Prakash case, the bench said 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. It noted,

“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.”

The bench, further, explained that the Court, in the Prem Nath Kaul case, 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.

“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 Assembly of the State, would have to be placed before the Constituent Assembly, for its decision.”

Explaining the rationale behind such framework, the Court said that 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).”

The Court, hence, held that there are no contrary observations made in the Sampat Prakash case to that of Prem Nath Kaul Case, accordingly, the case of Sampat Prakash Case is not per incuriam.

Evolution of Article 370

  • Under the draft Constitution, Article 370 of the Constitution was draft Article 306A, which was introduced in the Constituent Assembly on 17.10.1947.
  • 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.
  • 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.
  • On August 5, 2019, two Constitution Orders were issued by the President in exercise of his power under Article 370. These Constitution Orders made the Constitution of India applicable to the State of Jammu and Kashmir in its entirety, like other States in India.

[Dr. Shah Faesal v. Union of India, 2020 SCC OnLine SC 263, decided on 02.03.2020]

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