SHAH FAESAL V.

UNION OF INDIA

In the Supreme Court of India

NAME OF THE CASE Shah Faesal v. Union of India

CITATION Writ petition (civil) no. 1099 of 2019

DATE OF THE CASE 2 March, 2020

APPELLANT Dr. Shah Faesal and Ors.

RESPONDENT Union of India and Anr.

BENCH/JUGDES Hon’ble Justice S Kant, Hon’ble Justice B R Gavai,

Hon’ble Justice R S Reddy, Hon’ble Justice S K Kaul,
Hon’ble Justice N Ramana

LEGAL PROVISIONS Article 370

INTRODUCTION

 The Constitution of India was enforced on 26th January 1950 and with it came the unique
provision of Article 370 which accord special status to Jammu and Kashmir. The Article was
added on 17th October 1949 which immune the State of Jammu and Kashmir from the Indian
Constitution except Article 1 and Article 370. The Article also empowers the State to
formulate its own Constitution and the legislative power of the Parliament was restricted in
respect of the State of Jammu and Kashmir.

 Due to different legislation and statue of Jammu and Kashmir, the State Government’s
approval was necessary for the enforcement of the items mentioned in the Union List.
Therefore, the laws made by the Parliament which were applicable to the whole of India do
not apply to Jammu and Kashmir if the State Government disparages it. The Indian Citizens
who were not permanent citizens of the State were not allowed to buy properties in the State.

 On 5th August 2019, Article 370 was abrogated by the India Government. After the
abrogation, the State of Jammu and Kashmir no longer enjoys a special status and the laws of
the Indian Constitution are applicable to all residents of Jammu and Kashmir and Ladakh
including provisions related to Citizenship, Ownership of Property, Fundamental Rights,
Directive Principles of State Policy and Fundamental Duties.

 However, Article 370 is a temporary or permanent provision of the Indian Constitution

remains a bone of contention as evident in various judgments of the Supreme Court. In the
case of Prem Nath Kaul v. State of Jammu and Kashmir, the Supreme Court held that Article
370 is temporary in nature. On the other hand, in the case of Sampat Prakash v. State of
Jammu and Kashmir[3], the Supreme Court recognized Article 370 as a permanent provision
giving perennial power to the President to regulate the relationship between the Union and
the State.

 The contradictory views in the aforementioned cases were resolved on 2 nd March, 2020 in the
case of Shah Faesal v. Union of India. In this case the Supreme Court rejected the plea to
refer these petitions to a larger bench as there was no conflict between the two cases.
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BACKGROUND

 When India became independent from the British rule in 1947, the quondam autocrat of
Jammu and Kashmir, Maharaja Hari Singh proclaimed to be independent of both the
countries, namely, India and Pakistan. However, Pakistan instigated an unofficial war to
unshackle the region where there is a predominance of Muslim people from the Hindu
Monarch. Maharaja Hari Singh sought help from the Government of India when he was
unable to defend his state. The Government of India was ready to succor on the condition
that Kashmir would accede to India.

 Therefore, the Instrument of Accession was signed in October 1947 between Maharaja Hari
Singh and the Government of India. Accordingly, only defense, external affairs, and
communications were relinquished to the Government of India while control over all other
sectors was to be retained by ruler, under the Jammu and Kashmir Constitution Act 1939.
Therefore, Article 370 was interpolated in the Constitution of India to safeguard the
meticulous terms under which Kashmir has consented to accede to India.

 Article 370 of the Indian Constitution accorded a special status to the State of Jammu and
Kashmir within the Indian Union. Article 370(1)(b) states that the Union Parliament can only
make laws for the state, “in consultation with the Government of the State,” on certain
matters that were specified in the Instrument of Accession – namely defense, foreign affairs,
and communications. Other matters in the legislative subject lists can apply to Jammu and
Kashmir only with the “concurrence of the Government of the State” through a presidential
order.[4] Therefore, the State of Jammu and Kashmir adopted it own Constitution which was
formally enacted on November 17, 1956, and entered into force on January 26, 1957.

 Article 370(3) of the Constitution of India gives the president of India the power to amend or
repeal article 370 itself through a public notification (declaring that this article “shall cease to
be operative or shall be operative only with such exceptions and modifications”), provided
that “the recommendation of the Constituent Assembly of the State” is given before the
President issues such a notification. Therefore, in the exercise of the powers conferred by
clause (3) of Article 370 read with clause (1) of Article 370 of the Constitution of India, the
President, on the recommendation of Parliament, is pleased to declare that, as from the 6th
August 2019, all clauses of the said Article 370 shall cease to be operative.

 However, the status of Jammu and Kashmir as a temporary or permanent provision remains
debatable even after the abrogation of the special status of the State which is highlighted in
the two cases, namely, Prem Nath Kaul v. State of Jammu and Kashmir (1959 AIR 749),
Sampat Prakash v. the State of Jammu and Kashmir (1969 AIR 1153). The contention
between the aforesaid cases was reconciled in the case of Shah Faesal v. Union of India. In
this case, the five-judge Constitution bench of NV Ramana, SK Kaul, R. Subhash Reddy, BR
Gavai, and Surya Kant, JJ has refused to refer the petitions challenging the constitutional
validity of the Centre’s move to abrogate Article 370 to a larger bench.

FACTS OF THE CASE

 Article 370 was incorporated in the Indian Constitution to bestow the State of Jammu and
Kashmir a special autonomous status. Under this Article, the State was authorized to have its
own Constitution, and also the legislation passed by the Parliament of India was to be

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 applicable to the State only with the recommendation of the State Government of Jammu and
Kashmir.

 However, Article 370(3) of the Indian Constitution also furnishes the power to the President
of India to amend or repeal Article 370, and with this power the President on 5th August
2019 declared Article 370 to be inoperative. The Constitutional Order by the President made
the Indian Constitution applicable to the State of Jammu and Kashmir like the other States in
India.

 Challenging the constitutionality of the aforesaid orders, Mr. Raju Ramachandran, learned
senior counsel, has argued on the validity of the same. However, the senior advocates Dinesh
Dwivedi and Sanjay Prakash contented that the Supreme Court in the case of Sampat
Prakash v. State of Jammu and Kashmir (1969 AIR 1153) had given its verdict without
considering the facts laid down in the case of Prem Nath Kaul v. State of Jammu and
Kashmir (1959 AIR 749) as both these cases are related to Article 370. Such an oversight,
they had submitted, called for a reference to a larger bench since the present bench was of
the same strength as Sampath Prakash and Prem Nath Kaul benches and hence ill-equipped
to resolve any conflict between these decisions.

ISSUES RAISED BEFORE THE COURT

1. When can a case be handed over to a larger bench?

2. Whether there is a need to transfer the case to the larger bench owing to the contradictory
views in the cases, namely, Sampat Prakash v. State of Jammu and Kashmir (1969 AIR
1153) and Prem Nath Kaul v. State of Jammu and Kashmir (1959 AIR 749)?

3. Whether the case of Sampat Prakash v. State of Jammu and Kashmir is per incuriam for not
considering the judgement laid down in the case of Prem Nath Kaul v. State of Jammu and
Kashmir?

CONTENTIONS

Arguments from the Petitioner’s Side:

1. The learned counsel from the petitioner’s side opposing the reference contended that the case
of Sampat Prakash v. State of Jammu and Kashmir is not per incuriam for not considering
the judgment of the case Prem Nath Kaul v. State of Jammu and Kashmir as the facts of both
the cases were different and the case should be interpreted according to the facts of the case.

2. The learned counsel argued that the context of both the cases were not related. In the case of
Prem Nath Kaul v. State of Jammu and Kashmir, the Court discussed about the legislative
capacity of the Yuvaraj and not the nature of Article 370. On the other hand, in the case of
Sampat Prakash v. State of Jammu and Kashmir, the Court for the very first time dealt with
the issue of continuance of powers under Article 370 after the dissolution of the Constituent
Assembly of the State.

3. It was also argued that the existing case is concerned with many other issues which have not
been considered by the previous bench.

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4. The submissions made by Dr. Rajeev Dhavan, learned senior counsel was supported by
learned senior advocates C.U. Singh, Shekhar Naphade, and Gopal Sankaranarayanan, who
submitted that the alleged conflict in the aforesaid judgments do not mandate reference.

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Arguments from the Respondent’s Side:

1. Learned senior advocate Mr. Dinesh Dwivedi from the respondent’s side contented that the
case should be referred to the larger bench as in the case of Prem Nath Kaul v. State of
Jammu and Kashmir it was clearly laid down that under Article 370 the Parliamentary and
Presidential powers were subject to the recommendation of Jammu and Kashmir Constituent
Assembly. Once the Assembly was dissolved the power were no longer exercisable. Despite
this in the case of Sampat Prakash v. State of Jammu and Kashmir, a Presidential Order was
approved under Article 370, post the dissolution of the Constituent Assembly. This, the
counsels had argued, created an irreconcilable conflict between these two decisions.

2. He argued that two co-equal benches of five judges had pronounced paradoxical verdicts on
Article 370 in the cases Prem Nath Kaul v. State of Jammu and Kashmir (1959 AIR 749) and
Sampat Prakash v. State of Jammu and Kashmir (1969 AIR 1153). He said that while Kaul
had held that Article 370 was applicable only until the J&K Constitution was enacted,
Prakash had concluded that Article 370 was permanent in nature.

3. The learned senior advocate Mr. Sanjay Parikh contended that the pervious judgement
should always be binding on the subsequent Benches of the same strength and in the case of
Prem Nath Kaul v. State of Jammu and Kashmir, the Court, after widely discussing the
historical background and objective behind the introduction of Article 370, held that the
constitutional relationship between the State of Jammu and Kashmir and the Union of India
should be finally decided by the Constituent Assembly of the State and, therefore, the same
has to be treated as a temporary provision.

4. It was also argued the interpretation of Article 370 as enshrined in the case of Prem Nath
Kaul v. State of Jammu and Kashmir was ignored in yet another case of Mohd. Maqbool
Damnoo v. State of Jammu and Kashmir. In this case also the Court did not clarify whether
Article 370 can function after the enactment of the Constitution of Jammu and Kashmir.

5. Learned senior advocate, Mr. Zafar Shah, representing the Jammu and Kashmir High Court
Bar Association on the necessity of reference submitted that while there is no direct conflict
between the aforesaid two fivejudge Bench decisions of Prem Nath Kaul v, State of Jammu
and Kashmir and Sampat Prakash v. State of Jammu and Kashmir however if it is held in the
case of Prem Nath Kaul that Article 370 as temporary, then there exists a conflict with the
subsequent holding of Sampat Prakash.

PROVISIONS RELATED TO THE CASE

The Constitution of India, 1949

 Article 370
Temporary provisions with respect to the State of Jammu and Kashmir

(1) Notwithstanding anything in this Constitution,

(a) the provisions of Article 238 shall not apply in relation to the State of Jammu and
Kashmir;

(b) the power of Parliament to make laws for the said State shall be limited to

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 (i) those matters in the Union List and the Concurrent List which, in consultation with the
Government of the State, are declared by the President to correspond to matters specified
in the Instrument of Accession governing the accession of the State to the Dominion of
India as the matters with respect to which the Dominion Legislature may make laws for
that State; and

(ii) such other matters in the said Lists as, with the concurrence of the Government of the
State, the President may by order specify Explanation For the purposes of this article, the
Government of the State means the person for the time being recognised by the President
as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers
for the time being in office under the Maharajas Proclamation dated the fifth day of
March 1948 ;

(c) the provisions of Article 1 and of this article shall apply in relation to that State;

(d) such of the other provisions of this Constitution shall apply in relation to that State
subject to such exceptions and modifications as the President may by order specify:
Provided that no such order which relates to the matters specified in the Instrument of
Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except
in consultation with the Government of the State: Provided further that no such order
which relates to matters other than those referred to in the last preceding proviso shall be
issued except with the concurrence of that Government

(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause
(b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the
Constituent Assembly for the purpose of framing the Constitution of the State is convened, it
shall be placed before such Assembly for such decision as it may take thereon.

(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by
public notification, declare that this article shall cease to be operative or shall be operative only
with such exceptions and modifications and from such date as he may specify: Provided that the
recommendation of the Constituent Assembly of the State referred to in clause (2) shall be
necessary before the President issues such a notification.

JUDGEMENT

 In the case of Shah Faesal v. Union of India, a plea was made to refer the case to the larger
bench taking into consideration the verdicts given in two cases, namely, Prem Nath Kaul v.
State of Jammu and Kashmir and Sampat Prakash v. State of Jammu and Kashmir.

 The Court accentuated that the bench should consider the facts and context of the case before
delivering its verdict as observation of facts and the context of the case are necessary before
concluding a case. In the case of Prem Nath Kaul v. State of Jammu and Kashmir (1959 AIR
749), the question before the Court was about the legislative proficiency of the Yuvaraj
before pronouncing a particular enactment. The Bench delivered its verdict regarding the
importance of the Constituent Assembly of the State of Jammu and Kashmir by observing
the aforesaid facts.

 The Court further enumerated that under Article 370(2) of the Indian Constitution, any
decree pronounced by the Maharaja of the State acting on the advice of the Council of
Ministers which was in the office by the proclamation made by the Maharaja date on March

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 5, 1948, before the setting up of the Constituent Assembly, would have to be placed before
the Constituent Assembly for its decision as laid down under Article 370 of the Constitution
of India. Therefore, the case of Prem Nath Kaul v. State of Jammu and Kashmir indicated
that the Constituent Assembly’s decision under Article 370(2) was final. This finality has to
be read as being limited to those decisions taken by the State Government under Article 370
prior to the convening of the Constituent Assembly of the State, in line with the language of
Article 370(2).

 The Constitution Bench in the case of Prem Nath Kaul v. State of Jammu and Kashmir (1959
AIR 749) did not moot the continuation or cession of the functioning of Article 370
following the dissolution of the Constituent Assembly. However, the issue of continuation
and cessation of Article 370 was prominent in the case of Sampat Prakash v. State of Jammu
and Kashmir (1969 AIR 1153). Hence, the Court said that there was no conflict between the
two cases.

 The Court concluded its decision by highlighting the fact that there is no discord between the
two cases, namely, Prem Nath Kaul v. State of Jammu and Kashmir and Sampat Prakash v.
State of Jammu and Kashmir and therefore the plea to refer the case to the larger bench was
rejected. The Court also held that the case of Sampat Prakash v. State of Jammu and Kashmir
was not per incuriam as there was no conflict between the aforesaid cases.

CONCLUSION

 In the case of Shah Faesal v. Union of India, the preliminary question before the Court was
to refer the case to the larger bench because of the contradictory opinions laid down in the
cases of Prem Nath Kaul v. State of Jammu and Kashmir and Sampat Prakash v. State of
Jammu and Kashmir. The Court rejected the plea to refer the case to the larger bench with
the view that the facts and context of the two cases are different and there exists no conflict
between the two cases.

 In my opinion, the facts of the cases are the essential feature while delivering the judgement
of a case and the verdict of the Court, in this case, is therefore appropriate.

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