• Ms Arushi Singh

Manohar Lal Sharma v. Union of India (Writ Petition (Civil) No.1013/2019)

CASE

Manohar Lal Sharma v. Union of India


CITATION

Writ Petition (Civil) No.1013/2019


CORAM

Supreme Court of India

Constitutional Bench - Hon’ble Mr. Justice N.V. Ramana, Hon’ble Mr. Justice Sanjay Kishan Kaul, Hon’ble Mr. Justice R. Subhash Reddy, Hon’ble Mr. Justice B.R. Gavai and Hon’ble Mr. Justice Surya Kant



ALSO KNOWN AS

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POINT OF CONSIDERATION

Limited preliminary issue of whether the matter of interpretation of Article 370 of the Constitution of India should be referred to a larger Bench or not?


FACTS

  1. 1. On 20.12.2018, President’s Rule was imposed in exercise of powers under Article 356 of the Constitution of India in the State of Jammu and Kashmir, which was subsequently extended on 03.7.2019.

  2. 2. On August 5, 2019, two Constitution Orders were issued by the President in exercise of his power under Article 370, being C.O. Nos. 272 and 273, that did away with Jammu and Kashmir’s special constitutional status.

  3. 3. Aggrieved by the said orders people from several quarters of life filled successive writs challenging the C.O.’s. One such petition was filed by the petitioner (Manohar Lal Sharma), a supreme court advocate. The petition was initially listed before a division bench of Hon’ble Mr. Justice N.V. Ramana and Hon’ble Mr. Justice Ajay Rastogi. The bench at the request of the petitioner-in-person seeking urgent listing of the Writ Petition, directed the Registry to list the matter before an appropriate Bench in usual course.

  4. 4. Subsequently the matter was placed before full bench of Hon’ble The Chief Justice Ranjan Gogoi (as he then was), Hon’ble Mr. Justice S.A. Bobde (as he then was) and Hon’ble Mr. Justice S. Abdul Nazeer on 16.08.2019.

  5. 5. On 28.08.2019 the Registry was directed to place the papers of the writ petition before the Chief Justice of India for constitution of a Bench of five Judges to hear the matters in the first week of October, 2019.

  6. 6. On 01.10.2019 the matter was placed before the constitutional bench comprising of Hon’ble Mr. Justice N.V. Ramana, Hon’ble Mr. Justice S.K. Kaul, Hon’ble Mr. Justice R. Subhash Reddy, Hon’ble Mr. Justice B.R. Gavai and Hon’ble Mr. Justice Surya Kant. All the other petitions with similar content were tagged together by the court under the case “Shah Faesal v. Union of India”. The bench further directed the Registry not to entertain any other Writ Petitions on similar issues in future.

  7. 7. On the onset of the case hearing, before dwelling into the merits of the case, several noted petitioners raised a preliminary issue that there existed two conflicting judicial pronouncements of this court of equal strength of five judges w.r.t interpretation of Article 370 and hence the present case shall be referred to a larger bench for the consideration.


ISSUES RAISED & RATIO

  • Whether there is a requirement to refer the present matter to a larger Bench in view of the alleged contradictory views of this Court in Prem Nath Kaul case and Sampat Prakash case?

- The petitioners’ counsel argued that this Court, in the case of Prem Nath Kaul v. State of Jammu and Kashmir (AIR 1959 SC 749), after considering the various issues, held that Article 370 was temporary in nature, but the subsequent judgment of Sampat Prakash v. State of Jammu and Kashmir (AIR 1970 SC 1118) 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. Learned senior counsel contended that this conflict needs reconsideration by a larger Bench.

- Per contra, the learned Attorney General submitted that the challenge on the ground of an inconsistency between the decisions in Prem Nath Kaul and Sampat Prakash is not sustainable. He further submitted that the judgments must be read in their context. The earlier decision of Prem Nath Kaul was regarding legislative capacity of the Yuvaraj and the Court never intended on deciding upon the nature of Article 370. However, this Court for the first time in the case of Sampat Prakash dealt with the issue of continuance of powers under Article 370 after the dissolution of the Constituent Assembly of the State.

- The court accepted the contentions of the respondent State. The Court explained that the Court in Prem Nath Kaul 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 Constitution Bench in the Prem Nath Kaul 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. Therefore, no question of conflicting judgments arose and hence, the plea of petitioners to refer the matter to a larger bench was rejected by the court.


  • When can a matter be referred to a larger Bench?

- The court reiterated National Insurance Company Limited v. Pranay Sethi ((2017) 16 SCC 680) which held that it is a settled principle of law that the decisions rendered by a coordinate Bench is binding on the subsequent Benches of equal or lesser strength.


IMPORTANT CASES REFERRED

  1. Prem Nath Kaul v. State of Jammu and Kashmir AIR 1959 SC 749

  2. Sampat Prakash v. State of Jammu and Kashmir AIR 1970 SC 1118

  3. National Insurance Company Limited v. Pranay Sethi (2017) 16 SCC 680


*It is to be noted that the present order dealt only with the preliminary issue of whether the matter pertaining to constitutionality of the presidential orders be referred to a larger bench or not. The Hon’ble Supreme Court is yet to rule on constitutionality of the presidential orders as matter is currently pending in the court.


The author is a LL.B Graduate of University School of Law and Legal Studies, GGSIPU, New Delhi


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