SC declines to refer pleas challenging Art 370 to larger bench

‘No conflict between judgments’
NEW DELHI, Mar 2: The Supreme Court today declined to refer to a larger 7-judge bench a batch of petitions challenging the Constitutional validity of the Centre’s decision to abrogate provisions of Article 370 on August 5 last year.
A 5-judge Constitution bench headed by Justice N V Ramana said there were no reasons to refer the matter to a larger bench.
NGO, People’s Union of Civil Liberties (PUCL), Jammu and Kashmir High Court Bar Association and an intervenor had sought referring of the matter to a larger bench on the ground that two judgements of the Apex Court-Prem Nath Kaul versus Jammu and Kashmir in 1959 and Sampat Prakash versus Jammu and Kashmir in 1970 — which dealt with the issue of Article 370 were conflicted each other and therefore, the current bench of five Judges could not hear the issue.
Disagreeing with the petitioners, the bench, also comprising Justices Sanjay Kishan Kaul, R Subhash Reddy, B R Gavai and Surya Kant, said it was of the opinion that “there is no conflict between the judgements”.
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“The plea of the counsel (of PUCL, the bar association and the intervenor) to refer the present matter to a larger bench on this ground is, therefore, rejected,” the top court.
The Apex Court also did not agree with the contention that judgement in the Prem Nath Kaul case was not considered by the top court in its subsequent verdict in the Sampat Prakash matter.
The petitioners had contended that as decision in the Kaul case was not considered in the subsequent judgement, the latter verdict was “per incuriam” or wrongly decided.
The bench said, “At the cost of repetition, we note that the rule of per incuriam being an exception to the doctrine of precedents is only applicable to the ratio of the judgment. The same having an impact on the stability of the legal precedents must be applied sparingly, when there is an irreconcilable conflict between the opinions of two co-ordinate benches.
“However, as indicated above there are no contrary observations made in the Sampat Prakash case to that of Prem Nath Kaul, accordingly, the case of Sampat Prakash is not per incuriam.”
The Apex Court further said that “in light of the aforesaid discussion, we do not see any reason to refer these petitions to a larger bench on the questions considered”.
A number of petitions have been filed in the Apex Court including those of private individuals, lawyers, activists and political parties and they have also challenged the Jammu and Kashmir Reorganisation Act, 2019, which splits J&K into two Union Territories-Jammu and Kashmir, and Ladakh.
After the order was pronounced, some of the lawyers appearing in the matter requested the bench to fix a date for hearing of the main matter.
The bench said that schedule of hearing on the batch of petitions challenging the validity of abrogation of provision of Article 370 would depend on the hearing by a 9-judge bench in the Sabarimala case, which is expected to start after the Holi break. (PTI)
Case of personal liberty: SC
Terming it a case of personal liberty, the Supreme Court today said it will hear on March 5 a plea filed by Sara Abdullah Pilot challenging the detention of her brother Omar Abdullah under the Jammu and Kashmir Public Safety Act (PSA).
“The matter pertains to personal liberty,” said a bench of Justices Arun Mishra and Indira Banerjee even as the Jammu and Kashmir administration contended that Omar has been detained under the PSA considering his “past conduct” and possibility of such conduct being repeated on his release, which may “prejudice the public order”.
The remarks by the bench came at the fag-end of the brief hearing during which Attorney General K K Venugopal said that petitioner should have first approached the Jammu and Kashmir High Court instead of moving the apex court.
The bench observed that last week it had sought response of the Jammu and Kashmir administration on a separate petition challenging the detention of another former J&K chief minister Mehbooba Mufti under the PSA.
Terming Abdullah as “a very vocal critic” of abrogating Article 370, the J&K administration has claimed in the apex court that his acts squarely fell within the realm of public order as it was “calculated to disturb public peace and tranquillity”.
The District Magistrate of Srinagar has said this in his reply filed on a plea by Pilot.
The J&K administration has said that in the history of independent India the existence and continuance of Article 370 of the Constitution, which used to give special status to the erstwhile state of Jammu and Kashmir, has “always remained a contentious and burning issue”.
“The detenu has been a very vocal critic of any possible abrogation of Article 370 prior to its abrogation on August 5, 2019. It is submitted that considering the very peculiar geo-political position of Jammu and Kashmir and Ladakh and its geographical proximity with Islamic Republic of Pakistan, the concept of ‘public order’ needs to be examined contextually,” it said.
It also said that Abdullah should have moved the Jammu and Kashmir High Court to avail his remedy before approaching the apex court.
Solicitor General Tushar Mehta, appearing for J&K administration, told the bench about the reply filed by the District magistrate.
The bench, which posted the Matter for hearing on March 5, said the petitioner can file rejoinder, if any, to it.
In its reply, J&K administration has said that detention of Abdullah was ordered under section 8 of the PSA after being satisfied that it is necessary to detain him with a view “to prevent him from acting in any manner prejudicial to the maintenance of public order”.
It also dealt with submissions advanced in Pilot’s plea which said that as Abdullah was already under detention since August 5 last year, there was no ground to come to a conclusion that he may act in a manner prejudicial to the maintenance of public order.
“It is submitted that the said assertion is fallacious and ignores that the subjective satisfaction of the detaining authority, the grounds of detention and the dossier clearly indicate that there exists a live and proximate link in the events that occurred in the past, the activities of the detenu (Abdullah) and the possibility of such activities being prejudicial to maintenance of public order,” it said.
“In light of the above, the deponent states and submits that there was ample material and grounds to issue the impugned order of detention against the detenu considering the past conduct and the possibility of such conduct being repeated on release and thereby prejudicing the public order in the Union Territory of Jammu and Kashmir,” it said.
The reply further said, “It may not be out of place to mention that so far since 1990, 41,866 persons have lost their lives in 71,038 incidents throughout the erstwhile State of J&K. This includes 14,038 civilians, 5,292 personnel of security forces and 22,536 terrorists.”
It said that J&K High Court is seized of over 350 habeas corpus petitions and pleas challenging the detention orders.
“It is further submitted that the high court is fully functional and has in fact quashed 68 detention orders since August 2019 while confirming 11 detention orders passed by the appropriate authority,” it said, adding that the petitioner has failed to disclose the reason for not approaching the high court first.
“It is submitted that entertaining one petition would open flood gates of petitions which in absence of any special ground to make a departure, needs to be avoided,” it said.
Seeking dismissal of plea for “bypassing the effective alternative remedy” available under PSA, it said, “The detenue has chosen not to file a representation before the advisory board”.
Grounds of detention were supplied to Abdullah to enable him to make an effective representation as stipulated in law, it said, adding that the advisory board had on February 24 observed that there was sufficient cause for his detention.
“It is submitted that the acts, which are easily available in public domain, on the part of the detenu squarely fell within the realm of public order, as it was calculated to disturb public peace and tranquillity. It is needless to emphasise that the incitement of the public at large, pertains to public order,” it said.
Pilot has approached the Apex Court claiming that the detention order was “manifestly illegal” and there was no question of him being a “threat to the maintenance of public order”. (PTI)