2016 (7) TMI 1684 - SC - Indian Laws

Power of Court 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 - Section 25 of the Code of Civil Procedure and Section 406 of the Code of Criminal Procedure - HELD THAT - This Court has by a long line of decisions given an expansive meaning and interpretation to the word 'life' appearing in Article 21 of the Constitution. In MANEKA GANDHI VERSUS UNION OF INDIA 1978 (1) TMI 161 - SUPREME COURT , this Court declared that the right to life does not mean mere animal existence alone but includes every aspect that makes life meaningful and liveable, (to be checked). In SUNIL BATRA VERSUS DELHI ADMINISTRATION 1978 (8) TMI 228 - SUPREME COURT the right against solitary confinement and prison torture and custodial death was declared to be a part of right to life. 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 fact situation. One of the questions that fell for consideration in that case was whether this Court could in exercise of its powers under Articles 136 and 142 withdraw a case pending in the lower court and dispose of the same finally even when Article 139A does not empower the court to do so. Answering the question in the affirmative, this Court held that the power to transfer cases is not exhausted Under Article 139A of the Constitution. This Court observed that Article 139A enables the litigant to seek transfer of proceedings, if the conditions in the Article are satisfied. The said Article was not intended to nor does it operate to affect the wide powers available to this Court under Articles 136 and 142 of the Constitution. In the cases at hand, 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 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. 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 - 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. We accordingly answer the question referred to us in the affirmative. The transfer petitions shall now be listed before the regular bench for hearing and disposal on merits.

Summary

Issues Involved:
1. Whether the Supreme Court has the power to transfer civil or criminal cases pending in any court in the State of Jammu and Kashmir to a court outside that state and vice versa.
2. Whether access to justice is a fundamental right under Article 21 of the Constitution of India.
3. Whether Articles 32 and 142 of the Constitution of India empower the Supreme Court to issue directions for the transfer of cases in the absence of enabling provisions in the Code of Civil Procedure and the Code of Criminal Procedure.

Detailed Analysis:

1. Power to Transfer Cases:
The Supreme Court examined if it could transfer cases from or to Jammu and Kashmir despite the inapplicability of Section 25 of the Code of Civil Procedure and Section 406 of the Code of Criminal Procedure to the state. The Court noted that the Jammu and Kashmir Code of Civil Procedure, 1977, and the Jammu and Kashmir Code of Criminal Procedure, 1989, lack provisions empowering the Supreme Court to direct such transfers. The Court concluded that while the Central and State Codes do not provide for such transfers, this does not imply a prohibition against the Supreme Court exercising such power if it can be traced to another constitutional provision.

2. Access to Justice as a Fundamental Right:
The Court extensively discussed the concept of access to justice, tracing its origins to common law and the Magna Carta, and recognizing it as an invaluable human right. The Court cited international declarations and covenants, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which emphasize the right to an effective remedy and a fair public hearing. Judicial pronouncements in India have also recognized access to justice as a fundamental right under Article 21 of the Constitution. The Court held that access to justice is indeed a facet of the right to life guaranteed under Article 21, encompassing the need for an effective adjudicatory mechanism, reasonable accessibility, speedy adjudication, and affordability.

3. Empowerment under Articles 32 and 142:
The Court analyzed whether Articles 32 and 142 of the Constitution empower it to direct transfers in the absence of enabling provisions in the procedural codes. It concluded that Article 32, which guarantees the right to constitutional remedies, and Article 142, which allows the Supreme Court to pass any order necessary to do complete justice, provide sufficient authority for the Court to direct transfers. The Court referenced the Union Carbide Corporation case, which affirmed that Article 139A does not exhaust the power of the Supreme Court to transfer cases and that Article 142 can be invoked to ensure complete justice. The Court held that the absence of an enabling provision in the procedural codes does not prohibit the Supreme Court from directing transfers if it is necessary to protect the right of access to justice.

Conclusion:
The Supreme Court affirmed its power to transfer cases from or to the State of Jammu and Kashmir under Articles 32 and 142 of the Constitution, recognizing access to justice as a fundamental right under Article 21. The transfer petitions were to be listed before the regular bench for hearing and disposal on merits.