The Supreme Court on Tuesday said it can transfer cases being adjudicated by the courts in Jammu and Kashmir to other states in pursuance of the right of citizens to access justice under Article 21 of the Constitution.
Holding that access to justice is a part of Article 21, a constitution bench of Chief Justice TS Thakur, Justice Fakkir Mohamed Ibrahim Kalifulla, Justice AK Sikri, Justice SA Bobde and Justice R Banumathi said the Supreme Court, therefore, can transfer the trial of cases from Jammu and Kashmir to other states in exercise of its powers under Article 136.
“The provisions of Articles 32, 136 and 142 (of the constitution) 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,” said Chief Justice Thakur pronouncing the judgment.
The bench said this while examining the issue as to whether the top court, in exercise of its powers under Article 136, transfer the trial of cases outside Jammu and Kashmir or vice-versa in the absence of necessary provisions in Ranbir Penal Code (RPC) which applies to the state.
The constitution bench gave its verdict while answering in affirmative a reference by a three judge bench whether the top court had the power to transfer a civil or criminal case pending in any court in Jammu and Kashmir to a court outside that State and vice versa. The reference was made in April 21, 2015, while court was dealing with 11 transfer petitions involving disputes of civil nature.
Holding that there was 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”, the constitution bench said that there was no enabling provision to do so.
“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,” it said, adding that what is equally important, the court said is to see “whether there is any fundamental principle of public policy underlying any such prohibition”.
“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/her right of access to justice.”