SUPREME COURT OF INDIA CIVIL / CRIMINAL ORIGINAL JURISDICTION
TRANSFER PETITION (C) NO.1343 OF 2008
ANITA KUSHWAH APPELLANT
VERSUS
PUSHAP SUDAN RESPONDENT
Bench
T.S. THAKUR (CJI)
FAKKIR MOHAMED IBRAHIM KALIFULLA (SCJ)
A.K. SIKRI (SCJ)
S.A. BOBDE(SCJ)
- BANUMATHI (SCJ)
FACTS OF THE CASE
In this case it was argued that whether the Hon’ble Supreme Court of India has the power or the jurisdiction to transfer cases (Civil/Criminal) pending in the court of Jammu and Kashmir to courts outside the state and vice versa. In the verdict dated 21st April,2015, a three-judge bench referred the transfer petition to the constitutional bench. There were thirteen such transfer petitions placed before the bench, out of which eleven sought transfer of civil cases and the other two sought transfer of criminal cases to the courts outside the state of Jammu and Kashmir.
ARGUMENTS
After a lot of argument, a question arose; if there is a provision or source of power in the Code of Civil Procedure or in the Code of Criminal Procedure which this Court can invoke totransfer petition in the Court outside that state and vice versa.
The transfer petitions were opposed by the respondents on the basis of Section 1(3) of the Code of Civil Procedure and Section 1(2) of the Code of Criminal Procedure which states that this Act shall extend to the whole of India except for the State of Jammu and Kashmir. Section 25 of the CPC and 406 Of the CrPCwhich renders The Hon’ble Supreme Court of India to transfer petitions/suits from one court to another court were feeble to deliver Justice.
From the petitioners’ side it was contended that even when the court is incapable of invoking the above sections, it does not mean that this Court is vulnerable. It was argued that access to justice is a fundamental right provided in Article 21 of the Constitution of India which is guaranteed of the Article 32 of the Indian Constitution. Any person can approach to the court for the enforcement of his/her fundamental right if it is denied or jeopardised. This court can make relevant provisions or direct the transfer of cases to protect such right from one State to another. It was strenuously argued that Article 142 of the Indian Constitution read with Article 32 of Indian Constitution gives immense power to the court to intervene and issue suitable directions wherever such directions are necessary.
ISSUES RAISED
- Whether access to justice is indeed a fundamental right and if so, what is the sweep and content of that right.
- Whether Articles 32 and 142 of the Constitution of India empower this court to issue suitable direction for transfer of cases to and from the state of Jammu and Kashmir in appropriate situations.
Access to justice
The concept of “access to justice” is treated as a valuable human right in most of the constitutional democracy. It has its origin from the common law given in The Magna Carta of 1215.
There are two rights well recognised by The Universal Declaration of Rights drafted in the year 1948 pertaining to “access to Justice”[1].
It is also given in the clause 3 of Article 2 of International Covenant on Civil and Political Rights,1966.The legal position is no different in India as “access to justice” has been recognised as a valuable right in the Indian Courts even before the constitution was made.[2]
Access to justice has indeed become a problem nowadays but this is a part and parcel of right to life in India and in all civilised societies of the world. Every person citizen or not has the right to access justice in all matters. This right is so basic that system of governance can ignore its significance. It is not only modern right but a right advancing from ages. It is a contribution of The Magna Carta 1215, the Universal Declaration of Rights, International Covenant on Civil and Political Rights, 1966, the ancient Roman Jurisprudential maxim of ‘Ubi Jus Ibi Remedium’ to the acceptance of access to justice as basic and inalienable human right.[3]
“Four main Facets that, in our opinion, constitute the essence of access to justice are:
- The State must provide an affective adjudicatory mechanism ;
- The mechanism so provided must be reasonably accessible in terms of distance ;
- The process of adjudication must be speedy and ;
- The litigant’s access to the adjudicatory process must be affordable. ”[4]
Article32 read with Article 142 of the Indian Constitution
The need for transfer of cases from one court to other often arises in several situations. The sections which deals or gives power to this court to transfer the cases from court to court lies in section 25 of CPC and section 406 of the CrPC, which extends to the whole of India except for the states of Jammu and Kashmir.
The petitions seeking transfer from the State Court of Jammu and Kashmir to the other Courts outside that state. For the access to justice which is a facet of the right to life guaranteed under Article 21 of the Constitution of India. The Article 32 of the Indian Constitution can be invoked to direct suitable regulation for the purpose to grant justice.
The Article 142 of the Indian constitution can also be invoked which empowers The Hon’ble Supreme Court Of India to pass such a decree as is necessary for providing complete justice to the aggrieved person. This court can make any regulation with respect to providing justice throughout the territory of India in such a manner this regulation is enforced and backed by punishments.[5]
1.Prof. M. Cappelletti Rabel
[1]Llewelyn Evans AIR 1926 Bom 551
[1] R v. Secretary of State for Home Dept., ex p Leech(1993 [4] All ER 539)
[1]Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509
Held
The provisions of Articles 32, 136 and 142 of the Indian Constitution can be usefully invoked to empower this court to direct such transfer. After numerous arguments the court said that“the transfer petition shall be listed for hearing and disposal on the merits.”
By – Rustam Singh, Student