SC declines to refer pleas challenging abrogation of Article 370 to larger bench

A 5-judge Constitution bench headed by Justice N V Ramana said there were no reasons to refer the matter to a larger bench.

NGO, People's Union of Civil Liberties (PUCL), Jammu and Kashmir High Court Bar Association and an intervenor had sought referring of the matter to a larger bench on the ground that two judgements of the apex court -- Prem Nath Kaul versus Jammu and Kashmir in 1959 and Sampat Prakash versus Jammu and Kashmir in 1970 -- which dealt with the issue of Article 370 were conflicted each other and therefore, the current bench of five judges could not hear the issue.

Disagreeing with the petitioners, the bench, also comprising Justices Sanjay Kishan Kaul, R Subhash Reddy, B R Gavai and Surya Kant, said it was of the opinion that "there is no conflict between the judgements".

"The plea of the counsel (of PUCL, the bar association and the intervenor) to refer the present matter to a larger bench on this ground is, therefore, rejected," the top court.

The apex court also did not agree with the contention that judgement in the Prem Nath Kaul case was not considered by the top court in its subsequent verdict in the Sampat Prakash matter.

The petitioners had contended that as decision in the Kaul case was not considered in the subsequent judgement, the latter verdict was "per incuriam" or wrongly decided.

The bench said, "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 between the opinions of two co-­ordinate benches.

"However, as indicated above there are no contrary observations made in the Sampat Prakash case to that of Prem Nath Kaul, accordingly, the case of Sampat Prakash  is not per incuriam."

The apex court further said that "in light of the aforesaid discussion, we do not see any reason to refer these petitions to a larger bench on the questions considered".

A number of petitions have been filed in the apex court including those of private individuals, lawyers, activists and political parties and they have also challenged the Jammu and Kashmir Reorganisation Act, 2019, which splits J&K into two Union Territories -- Jammu and Kashmir, and Ladakh.

After the order was pronounced, some of the lawyers appearing in the matter requested the bench to fix a date for hearing of the main matter.

The bench said that schedule of hearing on the batch of petitions challenging the validity of abrogation of provision of Article 370 would depend on the hearing by a 9-judge bench in the Sabarimala case, which is expected to start after the Holi break.