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TMI Blog2016 (7) TMI 1684X X X X Extracts X X X X X X X X Extracts X X X X ..... ial 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hel, Amol Chitale, Asem Sawhney, Dharmendra Kumar Sinha, Ranjana Narayan, Binu Tamta, Gaurav Sharma, Sunil Fernandes, Astha Sharma, Puneeth K.G., Bimal Roy Jad, Naresh Kumar, Manjit Singh, Vivekta Singh, Rajesh Srivastava, Raghvendra Pratap Singh, Suresh Kumar, Shreekant N. Terdal, Ashok Mathur, Rabin Majumder and Ramesh Babu M.R., Advs. JUDGMENT T.S. Thakur, C.J.I. 1. A three-judge bench of this Court has, by an order dated 21st April, 2015, referred these Transfer Petitions 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. Out of thirteen Transfer Petitions placed before us, pursuant to the reference order, eleven seek transfer of civil cases from or to the State of Jammu and Kashmir while the remaining two seek transfer of criminal cases from the State to Courts outside that State. 2. The transfer petitions are opposed by the Respondents, 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 this Court to dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason 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 otherwise be traced to any other source within constitutional framework. 4. The Code of Civil Procedure, 1908 and so also the Code of Criminal Procedure, 1973 (hereinafter referred to as Central Codes ) as applicable to the rest of the country specifically exclude the application thereof to the State of Jammu and Kashmir. This is evident from Section 1 of Code of Civil Procedure, 1908 which deals with short title, commencement and extent reads: 1. Short title, commencement and extent- (1) This Act may be cited as the Code of Civil Procedure, 1908. (2) It shall come into force on the first day of January, 1909. [2][(3) It extends to the whole of India except- (a) the State of Jammu and Kashmir: (b) the State of Nagaland and the tribal areas: Provided that the State Government concerned may, by notification in the Official Gazette, extend the provisions of this Code or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code of Criminal Procedure SVT. 1989 also do not have any provision empowering this Court to direct transfer of any case civil or criminal from any Court in the State to a Court outside that State or vice versa. Resort to the Central or State Codes of Civil and Criminal Procedures for directing transfer of cases to or from the State is, therefore, ruled out. To that extent, therefore, the contentions urged on behalf of the Respondents are well-founded and legally unexceptionable. 7. The question, however, is 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. On behalf of the Petitioners, it was contended that even when the Central Codes of Civil and Criminal Procedure have no applicability to the State of Jammu and Kashmir and even when the State Codes of Civil and Criminal procedure do not contain any provision empowering this Court to direct transfer it does not mean that this Court is helpless in making an order of transfer in appropriate case where such transfer is otherwise called for in the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gin in common law as much as in the Magna Carta. The Magna Carta lays the foundation for the basic right of access to courts in the following words: No freeman shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land. To no man will we sell, to no one will we deny or delay right to justice. Moreover, all those aforesaid customs and liberties, the observance of which we have granted in our kingdom as far as pertains to us towards our men, shall be observed by all our kingdom, as well clergy as laymen, as far as pertains to them towards their men. Wherefore, it is our will, and we firmly enjoin, that the English Church be free, and the men in our kingdom have an hold all the aforesaid liberties, rights and concessions, well as peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in all aspects and in all places for ever, as is aforesaid. An oath, moreover, has been taken, as well on our part as on the part of the barons, that all these conditions aforesaid shall be kept in good faith a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arta developed fundamental principles of common law which are enshrined as the basic rights of all humans. These principles were over a period of time recognised in the form of Bill of Rights and Constitutions of various countries which acknowledged the Roman maxim 'Ubi Jus Ibi Remedium' i.e. every right when it is breached must be provided with a right to a remedy. Judicial pronouncements have delved and elaborated on the concept of access to justice to include among other aspects the State's obligation to make available to all its citizens the means for a just and peaceful settlement of disputes between them as to their respective legal rights. In R. v. Secretary of State for Home Dept., ex p Leech (1993 [4] All ER 539) Steyn LJ was dealing with a prisoner who complained that correspondence with his solicitor concerning litigation in which he was involved or which he intended to launch, was being censored by the prison authorities under the Prisons Rules, 1964. He challenged the authority of the Secretary of State to create an impediment in the free flow of communication between him and his solicitor about contemplated legal proceedings. The court held that access to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds of justice is justice and the spirit of justice is fairness, then each side should have equal opportunity to prepare its own case and to lay its evidence fully, freely and fairly before the Court. This necessarily involves preparation. Such preparation is far more effective from the point of view of justice, if it is made with the aid of skilled legal advice-advice so valuable that in the gravest of criminal trials, when life or death hangs in the balance, the very state which undertakes the prosecution of the prisoner, also provides him, if poor, with such legal assistance. 16. Reference may also be made to P.K. Tare v. Emperor AIR 1943 Nagpur 26. That was a case where the Petitioner had participated in the Quit India Movement of 1942. The detention was challenged on the ground of being vitiated on account of refusal of permission by the authorities to allow them to meet their counsel to seek legal advice or approach the court in person. The State opposed that plea based on Defence of India Act, 1939, which, according to it, took away right of the detenu to move a habeas corpus petition Under Section 491 of the Code of Criminal Procedure, 1898. Rejecting the contention and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judicial Magistrate, directing registration of a case against the Respondents. Since the matter had remained pending before the High Court, and was not heard for a long time of over six years or so and since several other cases in different High Courts in India were similarly pending in which the proceedings before the Trial Court had been stayed, no matter the cases involved commission of heinous offences like murder, rape, kidnapping and dacoity etc., this Court enlarged the scope of the proceedings and directed the Registrar Generals of the High Courts to furnish a report containing statistics of cases pending in the respective Courts in which the proceedings had been stayed at the stage of registration of FIR, and framing of charges in exercise of powers Under Article 226 of the Constitution or Section 482 or 397 of the Code of Criminal Procedure. On the basis of the statistics so furnished by the High Courts, this Court held that administration of justice was facing problems of serious dimensions. This Court also noticed, on the basis of the material made available by the High Courts, that unduly long delay was being caused in the disposal of the cases resulting in a blatant v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 950. Reliance was placed upon the European Court of Human Rights decision in Delcourt v. Belgium 1970 ECHR 1 to hold that access to justice was a valuable human and fundamental right relatable to Article 21 of the Constitution of India. Having said that, this Court issued directions for better maintenance of the Rule of Law and better administration of Justice by the High Courts. It also directed the Law Commission of India to undertake a study and submit its recommendations in relation to measures that need to be taken by creation of additional courts and other allied matters including rational and scientific methods for elimination of arrears to help reduce delay and speedy clearance of the backlog of cases. 21. In Brij Mohan Lal v. Union of India and Ors. (2012) 6 SCC 502 this Court declared that Article 21 guarantees to the citizens the rights to expeditious and fair trial. The Court observed: 137. Article 21 of the Constitution of India takes in its sweep the right to expeditious and fair trial. Even Article 39A of the Constitution recognises the right of citizens to equal justice and free legal aid. To put it simply, it is the constitutional duty of the Government to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the proposed Article 30A, but, that does not in the least matter, for what the proposed Article may have added to the constitutional guarantees already stands acknowledged as a part of the right to life Under Article 21 of the Constitution by judicial pronouncements of this Court. The proposed incorporation of Article 30A, would have simply formalised what already stands recognised by Judges and Jurists alike. V. Krishna Iyer J. has in his inimitable style explained the importance of access to justice in the following words: Access to justice is basic to human rights and directive principles of State Policy become ropes of sand, teasing illusion and promise of unreality, unless there is effective means for the common people to reach the Court, seek remedy and enjoy the fruits of law and justice. 26. To sum UP: Access to justice is and has been recognised as 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. The Magna Carta, the Universal Declaration of Rights, the Internation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1, right to make reproductive choices was declared as right to life. While in Sukhwant Singh v. State of Punjab (2009) 7 SCC 559 right to reputation was declared to be a facet of right to life guaranteed Under Article 21. In the recent Constitution Bench judgment decision of this Court in Subramanian Swamy v. Union of India [W.P. (Crl.) No. 184 of 2014], this Court held reputation to be an inherent and inseparable component of Article 21. 28. Given the fact that pronouncements mentioned above have interpreted and understood the word life appearing in Article 21 of the Constitution on a broad spectrum of rights considered incidental and/or integral to the right to life, there is no real reason why access to justice should be considered to be falling outside the class and category of the said rights, which already stands recognised as being a part and parcel of the Article 21 of the Constitution of India. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty or called by any other name whatsoever, where a citizen can agitate his grievance and seek adjudication of what he may perceive as a breach of his right by another citizen or by the State or any one of its instrumentalities. In order that the right of a citizen to access justice is protected, the mechanism so provided must not only be effective but must also be just, fair and objective in its approach. So also the procedure which the court, Tribunal or Authority may adopt for adjudication, must, in itself be just and fair and in keeping with the well recognized principles of natural justice. (ii) The mechanism must be conveniently accessible in terms of distance: The forum/mechanism so provided must, having regard to the hierarchy of courts/tribunals, be reasonably accessible in terms of distance for access to justice since so much depends upon the ability of the litigant to place his/her grievance effectively before the court/tribunal/court/competent authority to grant such a relief. (See D.K. Basu v. State of West Bengal (2015) 8 SCC 744. (iii) The process of adjudication must be speedy. Access to justice as a constitutional value will be a mere illusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompletion of the process of adjudication on account of poor judge population and judge case ratio in comparison to other countries. (iv) The process of adjudication must be affordable to the disputants: Access to justice will again be no more than an illusion if the adjudicatory mechanism provided is so expensive as to deter a disputant from taking resort to the same. Article 39A of the Constitution promotes a laudable objective of providing legal aid to needy litigants and obliges the State to make access to justice affordable for the less fortunate Sections of the society. Legal aid to the needy has been recognized as one of the facets of access to justice in Madhav Hayawadanrao Hoskot v. State of Maharashtra (1978) 3 SCC 544 where this Court observed: If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional and statutory right of appeal, inclusive of special leave to appeal, for want of legal assistance, there is implicit in the Court Under Article 142, read with Articles 21, and 39A of the Constitution, power to assign counsel for such imprisoned individual for doing complete justice. This is a necessary incident of the right of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 subserve 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 fact situation. 33. 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 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 guar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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-limited in some appropriate way-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. Perh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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