CASE ANALYSIS

ANITA KUSHWAHA V. PUSHAP SUDAN

AIR 2016 SC 1343\

INTRODUCTION:

In our Constitution, Jammu and Kashmir has a very important status. A

legislation passed by Parliament is not applicable to the state of Jammu and
Kashmir. Article 370 makes special status of Jammu & Kashmir. People of Jammu
& Kashmir want themselves to be treated special and whereas the whole nation is
asking to make that state like any other state of India.

Judiciary in various cases has interpreted the validity of transfer of cases by taking
the shield of constitutional provisions. The Hon’ble Court has justified the transfer
of cases under Article 21, Article 39A and various Constitutional Provisions.
Judiciary has even declared Speedy Trial or Delivery of Justice or access to Justice
under Article 21 of the Constitution.

FACTS:

1. A three judge of this court has, by an order dated 21st April 2015, referred
Transfer Petition 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 .
 2. Out of thirteen transfers Petition placed before us, pursuant to the reference
order, eleven seek transfer of civil cases from or to the state Jammu and
Kashmir while the remaining two seek transfer of criminal cases from the
state to courts outside the state.

ISSUES RAISED:

1. Whether the Supreme Court has the power to transfer cases from Jammu &
Kashmir to other states and vice versa.

2. Whether Access to Justice is a fundamental right under Constitution of India.

3. Whether Section 25 of CPC and section 406 of Cr. P.C. prohibits the Supreme
Court from transferring cases from J&K to other states and vice versa under
Article 32 and 142 of the Constitution.

ARGUMENTS:

Petitioner’s argument:

1. The Petitioner submitted that Section 25 of CPC and 406 of Cr. P.C. as
applicable to the rest of the country, have no application to the state of J&K,
there was no implied prohibition in the said two codes against the exercise of
power of transfer by the Supreme Court under the Constitution of India.
 2. It was also submitted that absence of enabling provisions in the state code of
civil and criminal procedure does not necessarily imply that this Court
cannot exercise the power of transfer, if the same is otherwise available
under the provisions of the Constitutions. So, the applicability of Article
139A to the state of J&K by reason of non-extension of the Constitution 42nd
Amendment Act to the 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.

3. The Petitioner has also argued that Access to Justice is a human right
enshrined under Article of UDHR and it can also be construed under Article
21 of the Constitution which is also supported by Article 39A of the
Constitution.

4. It was contented by the Petitioner that just because Central Legislations are
not applicable to the State of J&K doesn’t make Court helpless in making
any order regarding transfer of cases.

Respondent’s Argument:

1. The transfer petition was opposed by the Respondent on the ground that the
provisions of Section 25 of CPC and Section 406 of Cr. P.C, which
empower this court to direct transfer of civil and criminal cases respectively
from one state to the other, do not extend to the State of J&K and cannot be
invoked to direct any such transfer.

2. It was also argued that such claimed transfer is not even permitted by J&K
CPC, 1977 and J&K Cr. P.C., 1989 .
 3. I was also argued that in case of absence of enabling provisions regarding
transfer of cases this court cannot invoke power to transfer cases.

4. It was further urged that the provisions under Article 139A of the
Constitution has no application over the state of J&K.

5. It was submitted that a litigant has no power to transfer the cases from J&K
to other state and vice versa in the absence of any enabling provisions.

JUDGEMENT:

The court observed that Article 139A enables the litigant to seek transfer of
proceedings, if the conditions in this Article are satisfied. The said Article was
neither intended to nor does it operate to affect the wide powers available to this
court under Article 136 and 142 of the Constitution. In the opinion of the court, to
extend the power of withdrawal and transfer of cases to the Apex Court is
necessary for the purpose of effectuating the high purpose of Article 136 and
142(1), the power of Article 139A must be held not to exhaust the power of
withdrawal and transfer.

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, act as prohibitions or limitations in the statutes might embody and reflect
the scheme of particular law, taking into account the nature and status of the
authority or the court on which conferment or power a 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. Perhaps, the
proper way of expressing the idea is that in exercising powers under Article 142
and in assigning the needs of a complete justice of a cause or matter, the apex court
will take note of the express prohibitions in any substantive provision based on
some fundamental principles of public policy and regulate the exercise of its power
and discretion accordingly.

The concept of access to justice and an invaluable human right , also recognized in
most constitutional democracies as a fundamental right has its origin in common
law as much as in the Magna Carta which lays a foundation for basic right of
access to courts .

HELD:

All that can be said is that is no enabling provision because of the reason which
we have indicated earlier. The absence of an enabling provision, however, cannot
be constructed as a prohibition against transfer of cases to or from the state of
J&K. The extraordinary power available to the court under Article 142 of the
constitution can be usefully invoked in a situation where the court is satisfied that
denial of an order or transfer from or to the court in state of J&K will deny citizens
his or her rights of access to justice .The provisions of Article 32, 136, 142 are
wide enough the empower this court to direct such transfer in appropriate
situations ,no matter Central code of civil and criminal procedure do not extend to
the state nor do the state Codes of civil and criminal procedure contain any
provision that empower this court to transfer cases .

MY OPINION:
 As my opinion, even the state of Jammu & Kashmir should be treated as same as
other states and should not be given special treatments. Supreme Court is supreme
authority of law of India. In any of the cases of J&K where justice is not delivered
then the Supreme Court should handle the cases with its supremacy. The remedy of
Article 32 or any other such provisions should also be available to them.