Cases can be shifted out of J&K, rules Supreme Court

In a significant ruling, the Supreme Court on Tuesday held that it has the power to transfer civil and criminal cases in trial courts of Jammu and Kashmir to other states notwithstanding the special status enjoyed by the state, which has its own laws and Constitution.

Giving this ruling, a five-judge constitution bench, comprising Chief Justice T.S. Thakur and Justices Ibrahim Kalifulla, A.K. Sikri, S.A. Bobde and R. Banumathi, said access to justice is and has been recognised as a part and parcel of right to life in India under Article 21 of the Constitution 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. Even under Article 14 (right to equality) no discrimination can be made and such a right cannot be denied.

A bunch of matrimonial, civil and criminal cases were referred to the constitution bench as it was contended on behalf of J&K that since it has its own Constitution, laws and codes of procedure, both civil and criminal, the apex court has no jurisdiction to transfer the case. In disputes involving Jammu and Kashmir residents and those from other states, the litigants from J&K wanted the trial to continue within their state.

Rejecting the contention, the CJI, who wrote the judgment, said “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 bench pointed out that the extraordinary power available to the apex court under Article 142 of the Constitution to do substantial justice, 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. The provisions of Articles 32, 136 and 142 are, therefore, wide enough to empower this court to direct such transfer in appropriate situations.