In the Supreme Court of India Case No. Transfer Petition (C) Nos. 1343 of 2008, 116 of 2011, 562 of 2011, 1161 of 2012, 1294 of 2012, 1497 of 2012, 1573 of 2012, 426 of 2013, 1773 of 2013, 1821 Of 2013, 99 of 2014, 1845 of 2013, 14 of 2014 Appellant Anita Kushwaha Respondent Pushpa Sudan Date of the Judgment 19th July, 2016 Bench Justice S. Thakur, Justice Fakkir Mohamed, Justice R. Banumathi, Justice A.K. Sikri, Justice S.A. Bobde
Background of the Case
Prior to 1947, Jammu and Kashmir was a princely state under British Paramountcy, ruled by a Hindu Maharaja. The British Paramountcy would lapse and the rulers of princely states were given the option of joining one of the two new countries. Maharaja of Jammu and Kashmir decided to be a part of India only if special status will be provided to their state. In our Constitution, the state Jammu and Kashmir has given a very important status. General scenario is that a legislation passed by the Parliament is not applicable to the state of Jammu and Kashmir. Article 370 makes the special status of Jammu and Kashmir. It is a political debatable and controversial topic. People of Jammu and Kashmir want themselves to be treated special whereas the whole nation is asking to make that state like any other state of India.
The dispute of Jammu and Kashmir was taken to UNSC under Article 35 of UN Charter. Even the UN has taken this special status into consideration while discussing the dispute on Jammu and Kashmir.
The UDHR gave recognition to two rights pertaining to access to justice under Article 8 and Article 10.
Article 2 clause 3 of International Covenant on Civil and Political Rights, 1996 which provides that each state party to the covenant shall undertake that every person whose right or freedom as recognised is violated, shall have an effective remedy and to ensure that person claiming such a remedy shall have his right there to determine by competent judicial, administrative or legislative authorities, and the state should also ensure to develop the possibilities of judicial remedies.
Judiciary in various cases has interpreted the validity of transfer of cases by taking the shield of constitutional provisions. The Hon’ble Court has justified the transfer of cases under Article 21, Article 39 A and various Constitutional Provisions. Judiciary has even declared Speedy Trial or Delivery of Justice or access to justice under Article 21 of the Constitution. Hon’ble Court highlighted that Protection of Public Policy and Delivery of Justice is the basis for the establishment of the judicial system. It becomes important ot transfer the cases if it is fulfilling the object of establishment of judicial system.
The Magna Carta, the Universal Declaration of Rights, the International Convention on Civil Rights, 1996, the ancient Roman Jurisprudence maxim of ‘Ubi Jus Ibi Remedium’, the development of fundamental principles of common law by judicial pronouncements of the courts over centuries past have all contributed to the acceptance of access to justice as a basic and inalienable human rights which all civilized societies ans systems recognize and enforce.
1. A three judge of this court has, by an order dated 21st April, 2015, referred these Transfer Petition to a constitution bench to examine whether this court has the power to transfer a civil or criminal case pending in any court in the state of Jammu and kashmir to a court outside that state and vice versa.
2. Out of thirteen Transfer Petition placed before us, pursuant to the reference order, eleven seek transfer of civil cases from or to the state jammu and kashmir while the remaining two seek transfer of criminal cases from the state to courts outside that state.
1. Whether the Supreme Court has the power to transfer the cases from Jammu and Kashmir to other states and vice versa.
2. Whether Section 25 0f CPC and Section 406 of Cr. P.C. prohibits the Supreme Court from transferring cases from J & K to other states and vice versa under Article 32 and 142 of the Constitution.
3. Whether Access to Justice is a fundamental right under Constitution of India.
1. The Petitioner submitted that Section 25 of CPC and 406 of Cr.P.C. as applicable to the rest of the country have no application to the state of Jammu and Kashmir, there was no specific or implied prohibition in the said two codes against the exercise of power of transfer by the Supreme Court under the Constitution of India.
2. It was also submitted that absence of enabling provisions in the state code of civil and criminal procedure does not necessarily imply that this Court cannot exercise the power of transfer, if the same is otherwise available under the provisions of the Constitution. So, the applicability of Article 139A to the state of Jammu and Kashmir by reason of non-extension of the Constitution 42nd Amendment Act to that state does not constitute a disability, leave alone, a prohibition against the exercise of the power of transfer if such power could otheriwse be traced to any other source within constitutional framework.
3. The Petitioner has also argued that Access to Justice is a human right enshrined under Article of UDHR and it can also be construed under Article 21 of the Constitution which is also supported by Article 39A of the Constitution.
4. It was contented by the Petitioner that just because Central Legislations are not applicable to the State of Jammu and Kashmir doesn’t make Court helpless in making any order regarding transfer of cases.
1. The transfer petition was opposed by the Respondent on the ground that the provisions of Section 25 of CPC and Section 406 of Cr.P.C., which empower this court to direct transfer of civil and criminal cases respectively from one state to the other, do not extend to the State of Jammu and Kashmir and cannot be invoked to direct any such transfer.
2. It was also argued that such claimed transfer is not even permitted by Jammu and Kashmir CPC, 1977 and Jammu and Kashmir Cr. P.C., 1989.
3. I was also argued that in case f absence of enabling provisions regarding transfer of cases this court cannot invoke power to transfer cases.
4. It was further urged that the provisions under article 139 A of the Constitution has no application over the State of Jammu and Kashmir.
5. It was submitted that a litigant has no power to transfer the cases from J&K to other state and vice versa in the absence of any enabling provisions.
The Court held that the power to transfer the cases os not exhaustive under Article 139 A of the Constitution. The Court observed that Article 139 A enables the litigant to seek transfer of proceedings, if the conditions in this Article are satisfied. The said Article was not intended to nor does it operate to affect the wide powers available to this court under Article 136 and 142 of the Constitution. In the opinion of the court, to extend the power of withdrawal and transfer of cases to the Apex Court is necessary for the purpose of effectuating the high purpose of Article 136 and 142(1), the power of Article 139A must be held not to exhaust the power of withdrawal and transfer.
Dealing with the question whether a provision contained in an ordinary statue would affect the exercise of powers under Article 142 of the Constitution, this court held, that the power under Article 142 was at a different level altogether and that an ordinary statue could not control the exercise of that power. Speaking for the majority, Venkatachaliah J. Has observed:
The power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142. Such prohibitions or limitations in the statutes might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the court on which conferment or power a limited in some appropriate way a is contemplated. The limitations may not necessarily reflect or be based on any fundamental considerations of public policy. But we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of a complete justice of a cause or matter, the apex Court will take note of the express prohibitions in any substantive provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly.
The concept of access to justice and an invaluable human right, also recognized in most constitutional democracies as a fundamental right has its origin in common law as much as in the Magna Carta. The Magna Carta lays a foundation for the basic right of access to courts.
The UDHR gave recognition to two rights pertaining to access to justice under Article 8 and 10.
The legal position is no different in India. Access to Justice has been recognised as a valuable right by courts in this country long before the commencement of the Constitution.
Court has recognized Access to Justice in various landmark cases. In P. K. Tare v. Emperor, the court held that courts allow a great deal of latitude to the executive and presumptions in favour of the liberty of the subject are weakened, those rights do not disappear altogether. The Court ruled that the attempt to keep the applicants away from the Court under the guise of these rules was an abuse of the power and warranted intervention. Justice Bose emphasized the importance of the right of any person to apply to the court and demand that he be dealt with according to law.
In Hussainara Khatton v. State of Bihar, this court declared Speedy Trail as an integral part of Article 21 of the Constitution. It was also pointed out that Article 39A made free legal services an inalienable element of reasonable, fair and just procedure and that the right to such services was implicit in the guarantee of Article 21.
In Imtiyaz Ahmed v. State of U.P., the Court has emphasized upon the importance of access to justice and recognizing the right as a fundamental right relatable to Article 21 of the Constitution of India.
In Delcourt v. Belgium, the Court held that access to justice is a valuable human right and fundamental right relatable to Article 21 of the Constitution. Having said that the court issued direction for better maintenance of Rule of law and administration.
In Brij Mohan Lal v. Union of India, this Court declared that Article 21 guarantees to the citizen the right to expeditious and fair trial.
Tamilnadu Mercantile Bank Sharholders Welfare Associations v. S. C. Sekar and Others, the Court declared that an aggrieved person cannot left without the remedy and that access to justice is a human right and in certain situations even a fundamental right.
Now if access to justice is a facet of the right to life guaranteed under Article 21 of the Constitution, a violation actual or threatened of that right would justify the invocation of this Courtas powers under Article 32 of the Constitution. Exercise of the power vested in the court under that Article could take the form of a direction for transfer of a case from one court to the other to meet situations where the statutory provisions do not provide for such transfers. Any such exercise would be legitimate, as it would prevent the violation of the fundamental right of the citizens guaranteed under Article 21 of the Constitution.
Dealing with the question whether a provision contained in an ordinary statute would affect the exercise of powers under Article 142 of the Constitution, this Court held, that the constitutional power under Article 142 was at a different level altogether and that an ordinary statute could not control the exercise of that power. Speaking for the majority, Venkatachaliah J., as His Lordship then was, observed:
The power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142. Such prohibitions or limitations in the statutes might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the court on which conferment or power a limited in some appropriate way a is contemplated. The limitations may not necessarily reflect or be based on any fundamental considerations of public policy.
But we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of a complete justice of a cause or matter, the apex Court will take note of the express prohibitions in any substantive provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the powers of the Court under Article 142, but only to what is or is not complete justice of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise.
That apart from Article 32 even Article 142 of the Constitution can be invoked to direct transfer of a case from one court to the other, is also settled by a Constitution Bench decision of this Court.
In the cases at hand, there is no prohibitions against use of power under Article 142 to dierct transfer of cases from a court in the State of Jammu and Kashmir to a Court outside the State or vice versa. All that can be said is that is no enabling provision because of the reasons which we have indicated earlier. The absence of an enabling provision, however, cannot be construed as a prohibition against transfer of cases to or from the State of Jammu and Kashmir. At any rate, a prohibition simplicitor is not enough. The extraordinary power available to the court under Article 142 of the Constitution can, therefore, be usefully invoked in a situation where the Court is satisfied that denial of an order of transfer from or to the court in the State of Jammu and Kashmir will deny the citizens his or her rights of access to justice. The provisions of Article 32, 136 and 142 are, therefore, wide enough the empower this court to direct such transfer in appropriate situations, no matter Central Code of Civil and Criminal Procedure do not extend to the State nor do the State Codes of Civil and Criminal Procedure contain any provision that empower this court to transfer cases. We accordingly answer the question referred to us in the affirmative.
In my view, even the State of Jammu and Kashmir should not be treated differently from other states. Supreme Court is the law of the land for india including the State of Jammu and Kashmir. Aticle 32 gives an extraordinary opportunity to access the justice in India which has a very wide power. In case of any matter related to J & K in which delivery of justice is not taking place then the doors of Supreme Court should be open to entertain that matter. Special status doesn’t make any state excluded from India. Hence, the remedy of Article 32 or any other such provision should also be available to them.
Edited by Shuvneek Hayer
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Approved & Published – Sakshi Raje