Case Note & Summary
This order by the Supreme Court of India deals with a preliminary issue in a batch of petitions challenging the constitutional validity of two Constitution Orders issued by the President of India on August 5 and 6, 2019, namely C.O. 272 and C.O. 273, which effectively abrogated Article 370 of the Constitution of India, thereby applying the entire Constitution to the State of Jammu and Kashmir. The petitioners, including Dr. Shah Faesal and others, filed writ petitions under Article 32 of the Constitution. The background involves the imposition of President's Rule in Jammu and Kashmir on December 20, 2018, which was extended on July 3, 2019. On August 5, 2019, the President issued C.O. 272 with the concurrence of the Government of the State, superseding the 1954 Order and applying all provisions of the Constitution to Jammu and Kashmir, with modifications to Article 367. The next day, C.O. 273 was issued under Article 370(3) on the recommendation of Parliament, declaring that all clauses of Article 370 shall cease to be operative except as specified. The legal issues raised include whether Article 370 is a temporary or permanent provision, and whether the President could issue such orders without the recommendation of the Constituent Assembly of Jammu and Kashmir. The senior counsel for the petitioners, Mr. Dinesh Dwivedi and Mr. Sanjay Parikh, argued for a reference to a larger Bench, citing conflicting decisions of two Constitution Benches: Prem Nath Kaul v. State of Jammu and Kashmir (AIR 1959 SC 749), which held Article 370 to be temporary, and Sampat Prakash v. State of Jammu and Kashmir (AIR 1970 SC 1118), which recognized it as a permanent provision. They contended that the later decisions did not consider the earlier one. The Court, without going into the merits, decided that the matter should be referred to a larger Bench to resolve the conflict. The order does not decide the validity of the Constitution Orders but only the preliminary issue of reference.
Headnote
A) Constitutional Law - Article 370 - Temporary or Permanent Provision - Conflicting Decisions - The issue pertains to whether Article 370 is a temporary or permanent provision, with conflicting views in Prem Nath Kaul v. State of Jammu and Kashmir (AIR 1959 SC 749) and Sampat Prakash v. State of Jammu and Kashmir (AIR 1970 SC 1118) - The Court considered the preliminary issue of reference to a larger Bench without deciding merits - Held that the matter requires consideration by a larger Bench due to the conflict (Paras 1-10).
Issue of Consideration
Whether the matter should be referred to a larger Bench due to conflicting interpretations of Article 370 by two Constitution Benches in Prem Nath Kaul v. State of Jammu and Kashmir and Sampat Prakash v. State of Jammu and Kashmir
Final Decision
The Court, without deciding the merits, refers the matter to a larger Bench to resolve the conflict between the decisions in Prem Nath Kaul v. State of Jammu and Kashmir and Sampat Prakash v. State of Jammu and Kashmir regarding the interpretation of Article 370.
Law Points
- Article 370
- temporary provision
- permanent provision
- reference to larger Bench
- conflicting Constitution Bench decisions
