Neeraj Rohmetra
Jammu, July 19: In a judgement of far-reaching consequences for the State of Jammu and Kashmir, the Supreme Court today categorically stated that it has sufficient powers to direct for transfer of cases (civil or criminal) being adjudicated in the border State to other States or vice versa.
Citing several important judgements, the Constitutional Bench headed by Chief Justice of India (CJI), Justice Tirath Singh Thakur explained in details the provisions, which empowered the Apex Court to intervene and issue suitable directions, to do complete justice to the litigants engaged in legal proceedigns in any Court within or outside the State of Jammu and Kashmir in getting a fair and reasonable opportunity to access justice by transfer of their cases to or from that State.
The directions were issued by a Constitutional Bench comprising CJI, Justice Fakkir Mohamed Ibrahim Kalifulla, Justice A K Sikri, Justice S A Bobde and Justice R Banumathi, while hearing 13 transfer petitions -of which 11 were seeking transfer of civil cases from and to the State of Jammu and Kashmir while the remaining two were seeking transfer of criminal cases from the State to Court outside that State.
While pronouncing the historic judgement, the Bench remarked, “there is no prohibition against use of power under Article 142 to direct 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 there is no enabling provision”.
“However, the absence of an enabling provision 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. What is equally important is to see whether there is any fundamental principle of public policy underlying any such prohibition. No such prohibition nor any public policy can be seen in the cases at hand much less a public policy based on any fundamental principle”, says the judgement, which is in possession of EXCELSIOR.
Elaborating further on the important legal point, the Bench remarked, “the extraordinary power available to this 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 citizen his right of access to justice. The provisions of Articles 32, 136 and 142 are, therefore, wide enough to empower this Court to direct such transfer in appropriate situations, no matter Central Code of Civil and Criminal Procedures do not extend to the State nor do the State Codes of Civil and Criminal Procedure contain any provision that empowers this court to transfer cases.”
The Bench said, “what is significant is that while in the rest of the country the Courts deal with applications for transfer of civil/criminal cases under the provisions of the CPC 31 and the Cr.P.C. the fact that there is no such enabling provision for transfer from or to the State of Jammu and Kashmir does not detract from the power of a superior court to direct such transfer, if it is of the opinion that such a direction is essential to sub serve the interest of justice”.
“In other words, even if the provision empowering courts to direct transfer from one court to other were to stand deleted from the statute, the superior courts would still be competent to direct such transfer in appropriate cases so long as such courts are satisfied that denial of such a transfer would result in violation of the right to access to justice to a litigant in a given situation”, said the Bench.
The Apex Court added, “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 Court’s 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.”
Reacting to the judgement, State Government’s Standing Counsel in Supreme Court, Sunil Fernandes said, “the Apex Court clearly accepted our position that Central CrPC and Central CPC does not apply to the State of J&K”, adding, “however, holding “right to access to justice” an integral part of Right to Life (Article 21), they have permitted petitions to be filed under Article 32 (writs) and Article 136 (SLP) of the Constitution of India, which provisions anyway apply to the State of J&K”.
“The standard or bar of entertaining writ petitions is much higher than transfer petitions, which are statutory in nature. In writ petitions, the petitioners from cases registered in the State will have to demonstrate violation of fundamental rights along with exceptional hardships. Therefore even with this judgment, it will still not be easy for transfer of cases out of the State of J&K, compared to other States”.
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