Article 370 Day 8 | 5-Judge Bench Reserves Order on Question of Reference to 7-Judge Bench

January 23rd 2020

After two days of hearing the preliminary arguments, the Bench today reserved its order on whether the matter needs to be referred to a larger bench. As may be recalled, a few of the intervenors/petitioners have been arguing that there is a conflict between the 1959 Supreme Court decision in Prem Nath Kaul and the subsequent decisions in Sampat Prakash, Mohd. Maqbool Damnoo. Given that all these are decisions of five-judge constitution benches, they have been arguing that the matter should first be referred to a larger bench.

Today, after Sr. Adv. Zafar Shah concluded his submissions on the reference question, the Attorney General K.K. Venugopal (AG) argued why the Union was against such reference. Thereafter, Senior Advocates Rajeev Dhavan, C.U. Singh and Gopal Sankaranarayanan also presented their arguments.

There is no conflict between P.N. Kaul and subsequent decisions

The AG submitted that Prem Nath Kaul primarily dealt with the extent of the powers of the Maharaja at the time. It did not have any bearing on Article 370(3) which provides for the abrogation of the provision, added the AG. Thus, he contended that the said decision was fundamentally different from the subsequent decision in Sampat Praksash and could not be seen as being in conflict with it, as sought to be argued by Senior Advocates Dwivedi and Parikh.

No circumstances warranting a referral

After the AG concluded his submissions, Sr. Adv. Rajeev Dhavan began his arguments. He too opposed reference to a larger bench. In order to substantiate his stand, he first laid down the grounds under which a referral is usually necessitated:

1. when the decision of a bench is per incuriam, i.e., the decision is given without due regard to the decision of an earlier bench of equal or higher strength;
2. when there is a conflict between two judges on the same bench.

In the case of Prem Nath Kaul and Sampat Prakash, he argued that neither of the above two circumstances had eventuated. Given this, a reference was not warranted, added Dhavan.

Sr. Adv. C.U. Singh made a short appearance thereafter and submitted that he was in agreement with Sr. Adv. Dhavan’s arguments.

Thereafter, Sr. Adv. Gopal Sankaranarayanan commenced his arguments. Although he too was opposed to a reference, unlike the counsels preceding him, he submitted that the Bench may uphold Prem Nath Kaul as good law and the decisions succeeding it – Mohd. Damnoo and Sampat Prakash – may be held to be per incuriam.

J&K Constituent Assembly the final arbiter

The oral arguments came to an end with Sr. Adv. Dinesh Dwivedi reiterating that the powers of the President under Article 370 had lapsed with the dissolution of the Constituent Assembly in 1957. All Presidential Orders post-1957, he submitted, were invalid. He wrapped up his arguments by stating that Prem Nath Kaul recognized J&K CA to be the final determining authority on what provisions of the Indian Constitution will extend to J&K. The subsequent decisions of Sampat Prakash and Mohd. Damnoo diverged from this position, added Dwivedi. In light of this, he requested for the setting up of a larger bench to resolve this conflict.

With this, the Bench rose for the day and reserved its order on the reference question.