Supreme Court empowered under A. 32, 142 to transfer cases to and from J&K [Read judgment]

In a significant pronouncement yesterday, the Supreme Court held that it is empowered under Articles 32 and 142 to direct 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..The judgment was delivered by a Constitution bench comprising Chief Justice TS Thakur and Justices FML Kalifulla, AK Sikri, SA Bobde and R Banumathi..The judgment was delivered in a batch of transfer petitions which were referred to the Constitution Bench by a 3-judge Bench by an order of April 21, 2015. The question that was considered by the Constitution Bench was the following:.“Whether the Supreme 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.”.Contentions by parties .State of J&K.The transfer petitions were opposed by the State of Jammu & Kashmir inter alia, on the ground that the provisions of Section 25 of the Code of Civil Procedure and Section 406 of the Code of Criminal Procedure, which empower the Supreme 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..J&K also contended that the Jammu and Kashmir Code of Civil Procedure, 1977 and the Jammu and Kashmir Code of Criminal Procedure, 1989 do not contain any provision empowering the Supreme Court to direct transfer of any case from that State to a Court outside the State or vice versa. It is also contended that, in the absence of any provision empowering this Court to direct transfer of civil or criminal cases from or to the State of Jammu and Kashmir, no such power can be invoked or exercised by this Court..It was further urged that the provisions of Article 139-A of the Constitution which empowers this Court to transfer a case pending before one High Court to itself or to another High Court also has no application to the cases at hand as the Constitution 42nd Amendment Act, 1977 which inserted the said provision itself has no application to the State of Jammu and Kashmir..Petitioners.On behalf of the petitioners, it was submitted that while Sections 25 of the Code of Civil Procedure and 406 of Code of Criminal Procedure 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 or under any other provision of the law whatsoever. It was urged that inapplicability of the Central Civil and/or Criminal Procedure Code to the State of Jammu and Kashmir or the absence of an enabling provision in the State Code of Civil and/or 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..The petitioners further contended that access to justice is a fundamental right guaranteed under Article 21 of the Constitution. They submitted that any litigant whose fundamental right to access to justice is denied or jeopardised can approach the Supreme Court for redress under Article 32 of the Constitution of India for protection and enforcement of his/her right. They strenuously argued that Article 142 of the Constitution of India read with Article 32 amply empower the Supreme Court to intervene and issue suitable directions wherever such directions are necessary to do complete justice to the parties including ensuring that litigants get a fair and reasonable opportunity to access justice by transfer of their cases to or from that J&K..The judgment.The court narrowed down the issues to the following question:.“…whether independent of the provisions contained in the Codes of Civil and Criminal Procedure is there a source of power which this Court can invoke for directing transfer of a case from the State of Jammu and Kashmir or vice versa.”.It first proceeded to consider whether access to justice is a fundamental right under Article 21. Relying on a catena of earlier decisions and verdicts from around the globe, the court concluded that access to justice is a part and parcel of right to life in India and in all civilized societies around the globe..“The right is so basic and inalienable that no system of governance can possibly ignore its significance, leave alone afford to deny the same to its citizens… If “life” implies not only life in the physical sense but a bundle of rights that makes life worth living, there is no juristic or other basis for holding that denial of “access to justice” will not affect the quality of human life so as to take access to justice out of the purview of right to life guaranteed under Article 21.”.It then considered the most important contention – whether Article 32 of the Constitution of India read with Article 142 empowers the Supreme Court to direct transfer in a situation where neither the Central Code of Civil Procedure or the Central Code of Criminal Procedure empowers such transfer to/from the State of Jammu and Kashmir..Answering said question in the affirmative, it held that if access to justice is a facet of the right to life guaranteed under Article 21 of the Constitution, a violation, whether actual or threatened, of that right would justify the invocation of the 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. .… 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 Union Carbide Corporation v. Union of India (1991) 4 SCC 584.”.It held that though there is no enabling provision for transfer of cases to or from J&K, that will not be a prohibition for transfer of cases unless there is a fundamental principle of public policy underlying such a 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. The extraordinary power available to this Court under Article 142 of the Constitution can, therefore, be usefully invoked….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.”.Read the full judgment below.