Cases can be shifted out & into J&K for access to justice: SC

In a path-breaking verdict, the Supreme Court today held that it can transfer civil and criminal cases including matrimonial disputes out and into Jammu and Kashmir, where central laws like CPC and CrPC do not apply, to ensure "right of access of justice" to litigants.
A five-judge Constitution bench headed by Chief Justice T S Thakur rejected the contention of the State that it cannot interfere as neither Section 25 of the Code of Civil Procedure nor Section 406 of the Code of Criminal Procedure, which empower this court to direct transfer cases from one state to another, are applicable on it.

The state had further said that local laws like Jammu and Kashmir Code of Civil Procedure and the Jammu and Kashmir Code of Criminal Procedure also do not contain any provision empowering the Supreme Court on the issue.
"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 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.

"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...," the bench also comprising justices FMI Kalifulla, A K Sikri, S A Bobde and R Banumathi said.

The verdict came on over a dozen pleas seeking transfer of
cases either into or out of Jammu and Kashmir in view of a peculiar situation where the central laws did not apply on it and the local laws do not empower the apex court to transfer cases.

The apex court though acknowledged the prevailing legal situation and termed the arguments as "justified", but said that the access to justice is a key right and the apex court can exercise its "extraordinary" constitutional power to ensure that everybody gets it.
"Two distinct questions fall for consideration in the context of what is argued at the Bar. The first involves examination of whether access to justice is indeed a fundamental right and if so, what is the sweep and content of that right, while the second is whether Articles 32 and 142 of the Constitution empower this court to issue suitable directions for transfer of cases to and from Jammu & Kashmir in appropriate situations," it said.

"Access to justice is and has been recognised as a part and parcel of right to life in India and in all civilised 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 International Covenant on Civil and Political Rights, 1966, the ancient Roman Jurisprudential maxim of 'Ubi Jus Ibi Remedium', the development of fundamental principles of common law by judicial pronouncements of the courts over centuries past have all contributed to the acceptance of access to justice as a basic and inalienable human right which all civilised societies and systems recognise and enforce," it said.

The bench then dealt with Article 21 (right to life) under the Constitution and the question as to whether the access to justice can be part of the key fundamental right.
(Reopens LGD 36)
Dealing with the width of the right to life, the bench said, "...We have no hesitation in holding that access to justice is indeed a facet of right to life guaranteed under Article 21 of the Constitution. We need only add that access to justice may as well be the facet of the right guaranteed under Article 14 of the Constitution, which guarantees equality before law and equal protection of laws to not only citizens but non-citizens also.

"We say so because equality before law and equal protection of laws is not limited in its application to the realm of executive action that enforces the law. It is as much available in relation to proceedings before courts and tribunal and adjudicatory fora where law is applied and justice administered.
"The citizen's inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before law as well as equal protection of laws."
The bench said even if the power of court to transfer cases is deleted, it can still transfer them if it is convinced that denial of such transfer would violates the right to access to justice.

"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," it said.