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New Delhi, March 2, 2020
A five-judge Constitution bench of the Supreme Court on Monday said there is no need to refer to a larger 7-judge bench a clutch of petitions challenging the constitutional validity of the Centre's decision to revoke the provisions of Article 370 on August 5 last year, which gave special status to the erstwhile state of Jammu and Kashmir.
A 5-judge Constitution bench headed by Justice N. V. Ramana and comprising Justices Sanjay Kishan Kaul, R. Subhash Reddy, B. R. Gavai and Surya Kant decided against referring the matter to a larger bench.
The People's Union of Civil Liberties (PUCL), an NGO, Jammu and Kashmir High Court Bar Association and an intervenor, renowned journalist Prem Shankar Jha, had cited 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 Article 370 were in conflict, and as a result, the existing five-judge bench could not conduct hearing on the matter.
The bench, expressing disagreement with the petitioners' contention, said there is no conflict between the judgements. The court said, "The plea of the counsel (the petitioners) to refer the present matter to a larger bench on this ground is, therefore, rejected."
Citing the Kaul case, the petitioners contended the case was not considered in the subsequent judgement, as it was "per incuriam" or wrongly decided.
"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 judgement. 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 coordinate 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", said the top court.
The apex court also declined to entertain 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 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", said the court.
The top court observed it sees no reason to read into the Prem Nath Kaul case an interpretation which results in it being in conflict with the subsequent judgements of this court, "particularly when an ordinary reading of the judgment does not result in such an interpretation."
After the pronouncement of the order, the lawyers appearing in the matter requested the bench to fix a date to begin the hearing on the main matter.
The bench said that schedule of the hearing on the challenge against the Article 370 would depend on the hearing by a 9-judge bench in the Sabarimala case. The top court has scheduled to begin the hearing on the Sabarimala temple issue when court reopens after the Holi break
A clutch of petitions have been filed in top court, including those of private individuals, lawyers, activists and political parties challenging the Jammu and Kashmir Reorganisation Act, 2019, which bifurcated the erstwhile state of J&K into two Union Territories -- Jammu and Kashmir, and Ladakh.