No Larger Bench for Article 370 Challenge: Supreme Court Finds Prem Nath Kaul and Sampat Prakash Consistent

On 5 August 2019 the President issued Constitution Orders C.O. 272 and 273 under Article 370, applying the whole Constitution to Jammu and Kashmir, which had been under President's Rule since 20.12.2018 (paras 4-6). Writ petitions challenged the orders (para 1). Some petitioners sought a reference to a larger Bench, arguing that Prem Nath Kaul treated Article 370 as dependent on the State's Constituent Assembly while Sampat Prakash held it continued after that Assembly was dissolved (paras 2, 7-12). The Attorney General, the Solicitor General and other counsel opposed the reference (paras 13-15).

Precedent and stare decisis promote certainty, and a reference should not be made casually: only where a proposition is contradicted by a later Bench of the same strength, or has become unworkable or contrary to settled principle (paras 17-19). A decision of a coordinate Bench binds later Benches of equal or lesser strength, as Pranay Sethi held (para 23). Only the ratio, read with the facts, binds (paras 25-26). Per incuriam is an exception to be applied sparingly, and only when the ratios are irreconcilable (paras 28-32, 46). The history of Article 370, from draft Article 306A introduced in 1947 to the later Constitution Orders amending it, sets the context for both rulings (paras 33-36). Prem Nath Kaul decided the Yuvaraj's legislative competence in the interregnum; its remarks on the finality of the Constituent Assembly's decision were limited to decisions taken before it convened, and it did not consider whether Article 370 continued after the Assembly's dissolution, which Sampat Prakash decided (paras 42-44). There was thus no conflict (para 45).