Constitutional Challenge to Article 370 Abrogation: Supreme Court Rejects Referral to Larger Bench

The case of Dr. Shah Faesal & Ors. vs. Union of India & Anr. was a landmark judgment involving the constitutional validity of the Presidential Orders of August 5, 2019, and August 6, 2019, which effectively abrogated Article 370 of the Indian Constitution. The petitioners challenged the validity of these orders and sought a reference to a larger bench, arguing that there was a conflict in past Supreme Court rulings on Article 370.

Background of the Case

Article 370 of the Indian Constitution granted special status to Jammu and Kashmir, limiting the application of Indian laws to the state. On August 5, 2019, the President issued Constitution Order 272, applying all provisions of the Indian Constitution to Jammu and Kashmir. The following day, Constitution Order 273 declared that all clauses of Article 370, except one, would cease to operate.

These orders were issued while Jammu and Kashmir was under President’s Rule, leading to a constitutional challenge in the Supreme Court. The petitioners argued that the orders were unconstitutional and sought a larger bench reference due to an alleged conflict between two past rulings: Prem Nath Kaul vs. State of Jammu and Kashmir (1959) and Sampat Prakash vs. State of Jammu and Kashmir (1970).

Petitioners’ Arguments

The petitioners, represented by senior counsels, contended that:

• Article 370 was a temporary provision linked to the existence of the Constituent Assembly of Jammu and Kashmir, which had dissolved in 1957.
• The judgment in Prem Nath Kaul emphasized that the Constituent Assembly’s decision was final, implying that Article 370 could not be unilaterally altered after its dissolution.
• The judgment in Sampat Prakash contradicted Prem Nath Kaul by holding that Article 370 continued indefinitely unless revoked by the President with the recommendation of the Constituent Assembly.
• The alleged conflict warranted reference to a larger Constitution Bench.

Respondents’ Arguments

The Union of India, represented by the Attorney General and Solicitor General, argued that:

• There was no conflict between Prem Nath Kaul and Sampat Prakash.
• The judgment in Prem Nath Kaul did not deal with the continuation or cessation of Article 370.
• The principle of per incuriam did not apply to Sampat Prakash, as it considered and upheld the validity of Article 370.
• The Court should not refer the matter to a larger bench merely on the basis of a perceived conflict.

Supreme Court’s Observations

The Supreme Court analyzed whether there was a genuine conflict in precedent that required reference to a larger bench. The key observations were:

• Prem Nath Kaul did not deal with the continuation of Article 370; it primarily examined the legislative authority of the then-Maharaja.
• Sampat Prakash explicitly addressed Article 370’s continued application and held that it remained in force unless modified or repealed under its own provisions.
• Since Prem Nath Kaul did not decide on Article 370’s continuation, there was no direct conflict with Sampat Prakash.
• Judgments must be read in their factual and legal context, and selective reading of observations does not establish a conflict.
• The rule of per incuriam applies only when a judgment ignores binding precedent, which was not the case here.

Final Judgment

The Supreme Court rejected the request for reference to a larger bench, holding:

“We do not see any reason to refer these petitions to a larger Bench on the questions considered.”

Impact of the Judgment

This ruling has significant constitutional implications:

• It reaffirmed the power of the President to modify Article 370 without requiring a Constituent Assembly recommendation.
• It clarified that Prem Nath Kaul and Sampat Prakash were not in conflict, preventing future challenges based on this argument.
• It set a precedent for judicial restraint in referring cases to larger benches unless a genuine conflict exists.

The judgment marks a crucial step in resolving legal uncertainties surrounding the abrogation of Article 370, reinforcing the application of Indian constitutional principles to Jammu and Kashmir.

Petitioner Name: Dr. Shah Faesal & Ors..
Respondent Name: Union of India & Anr..
Judgment By: Justice N.V. Ramana, Justice Sanjay Kishan Kaul, Justice R. Subhash Reddy, Justice B.R. Gavai, Justice Surya Kant.
Place Of Incident: Jammu and Kashmir.
Judgment Date: 02-03-2020.

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