Fundamental Right; Anita Kushwaha Vs. Pushap Sudan [Supreme Court of India, 19-07-2016]

Constitution of India – Article 32, 136 & 142 – Transfer Petition – Jammu and Kashmir – Whether Supreme 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 ?

Held, there is 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 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.

Right to seek transfer of a Case

AIR 2016 SC 3506 : (2016) 8 SCC 509 : JT 2016 (8) SC 268 : 2016 (7) Scale 235 : 2016 AIR (SCW) 3506 : 2016 (3) R.C.R.(Criminal) 852 : 2016 (4) Recent Apex Judgments (R.A.J.) 472 : 2016 (3) R.C.R.(Civil) 921 : 2016 (3) Law Herald (SC) 2228 : 2016 DNJ 751 : 2016(3) KLT 799 : 2016 (2) SCC (L&S) 463 : 2016 CriLJ 4151 : 2016 (6) All WC 5962 : 2016 (3) SCC(Cri) 530

IN THE SUPREME COURT OF INDIA

T.S. Thakur, CJI, Fakkir Mohamed Ibrahim Kalifulla, A.K. Sikri, S.A. Bobde and R. Banumathi, JJ.

July 19, 2016

Transfer Petition (C) No. 1343 of 2008 Anita Kushwaha – Appellant Versus Pushap Sudan – Respondent With Transfer Petition (Crl.) No. 116 of 2011. Ajay Kumar Pandey – Appellant Versus State of J&K & Anr. – Respondents Transfer Petition (C) No. 562 of 2011. Supriya – Appellant Versus Pankaj Dhar – Respondent Transfer Petition (C) No. 1161 of 2012. Rakhee Chowdhary Baldotra – Appellant Versus Yogesh Kumar Baldotdra – Respondent Transfer Petition (C) No. 1294 of 2012. Sonali Pimple @ Sonali More & Ors. – Appellants Versus C.K. More – Respondent Transfer Petition (C) No. 1497 of 2012. Kalpana Tiwari – Appellant Versus Rajni Kant Tiwari – Respondent Transfer Petition (C) No. 1573 of 2012. Geeta Bhatia – Appellant Versus Madhav Bhatia – Respondent Transfer Petition (C) No. 426 of 2013. Bhavika Bharti – Appellant Versus Nakul Mahajan – Respondent Transfer Petition (C) No. 1773 of 2013. Neha – Appellant Versus Sandeep Vaishnavi – Respondent Transfer Petition (C) No. 1821 Of 2013. Gunjan Wazir – Appellant Versus Vivek Wazir – Respondent Transfer Petition (Crl.) No. 99 of 2014. Gunjan Wazir – Appellant Versus Vivek Wazir & Ors. – Respondents Transfer Petition (C) No. 1845 of 2013. Tamana Sodi – Appellant Versus Tilak Chowdhary – Respondent Transfer Petition (C) No. 14 of 2014. Manju Bala – Appellant Versus Vinod Kumar – Respondent

For the Appellants :- Ms. Mona K. Rajvanshi, Abhishek Atrey, R.C. Kaushik, Himanshu Shekhar, Yash Pal Dhingra, Sunil Kumar Verma, Ms. Madhu Moolchandani, Rajender Mathur, Shailendra Bhardwaj, Ms. Jaspreet Gogia, Debasis Misra, Ms. Kaveeta Wadia, Advocates.

For the Respondents :- Rajesh Srivastava, Ms. Pragya Baghel, Ramesh Babu M.R., D.K. Sinha, Rabin Majumdar, S.N. Terdol, Bimal Roy Jad, C.D. Singh, Venkita Subramonium T.R., Ms. Laxmi Arvind, Ashok Mathur, Sunil Fernadese, Advocates.

JUDGMENT

T.S. Thakur, CJI.

A three-judge bench of this Court has, by an order dated 21st April, 2015, referred these Transfer Petitions 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. Out of thirteen Transfer Petitions placed before us, pursuant to the reference order, eleven seek transfer of civil cases from or to the State of Jammu and Kashmir while the remaining two seek transfer of criminal cases from the State to Courts outside that State.

2. The transfer petitions are opposed by the respondents, inter alia, on the ground that the provisions of Section 25 of the Code of Civil Procedure and Section 406 of the Code of Criminal Procedure, 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 Jammu and Kashmir and cannot, therefore, be invoked to direct any such transfer. The Transfer Petitions are also opposed on the ground that the Jammu and Kashmir Code of Civil Procedure, 1977 and the Jammu and Kashmir Code of Criminal Procedure, 1989 do not contain any provision empowering the Supreme Court to direct transfer of any case from that State to a Court outside the State or vice versa. It is also contended on behalf of the respondents that, in the absence of any provision empowering this Court to direct transfer of civil or criminal cases from or to the State of Jammu and Kashmir, no such power can be invoked or exercised by this Court. It is further urged that the provisions of Article 139-A of the Constitution which empowers this Court to transfer a case pending before one High Court to itself or to another High Court also has no application to the cases at hand as the Constitution 42nd Amendment Act, 1977 which inserted the said provision itself has no application to the State of Jammu and Kashmir. It is argued that in the absence of any enabling provision in the Code of Civil and Criminal Procedure or in the Constitution of India or the State Constitution for that matter, a litigant has no right to seek transfer of a civil or a criminal case pending in the State of Jammu and Kashmir to a Court outside the State or vice versa.

3. On behalf of the petitioners, it was, on the other hand, submitted that while Sections 25 of the Code of Civil Procedure and 406 of Code of Criminal Procedure as applicable to the rest of the country have no application to the State of Jammu and Kashmir, there was no specific or implied prohibition in the said two codes against the exercise of power of transfer by the Supreme Court under the Constitution or under any other provision of the law whatsoever. It was urged that inapplicability of the Central Civil and/or Criminal Procedure Code to the State of Jammu and Kashmir or the absence of an enabling provision in the State Code of Civil and/or 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 Constitution. So also, the inapplicability of Article 139-A to the State of Jammu and Kashmir by reason of non-extension of the Constitution 42nd Amendment Act to that 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.

4. The Code of Civil Procedure, 1908 and so also the Code of Criminal Procedure, 1973 (hereinafter referred to as “Central Codes”) as applicable to the rest of the country specifically exclude the application thereof to the State of Jammu and Kashmir. This is evident from Section 1 of Code of Civil Procedure, 1908 which deals with short title, commencement and extent reads :

1. Short title, commencement and extent. – (1) This Act may be cited as the Code of Civil Procedure, 1908.

(2) It shall come into force on the first day of January, 1909.

[2][(3) It extends to the whole of India except-

(a) the State of Jammu and Kashmir;

(b) the State of Nagaland and the tribal areas :

Provided that the State Government concerned may, by notification in the Official Gazette, extend the provisions of this Code or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications as may be specified in the notification.

Explanation-In this clause, “tribal areas” means the territories which, immediately before the 21st day of January, 1972 were included in the tribal areas of Assam as referred to in paragraph 20 of the Sixth Schedule to the Constitution.

(4) In relation to the Amindivi Islands, and the East Godavari, West Godavari and Visakhapatnam Agencies in the State of Andhra Pradesh and the Union territory of Lakshadweep, the application of this Code shall be without prejudice to the application of any rule or regulation for the time being in force in such Islands, Agencies or such Union territory, as the case may be, relating to the application of this Code.”

(emphasis supplied)

5. To the same effect is Section 1 of the Code of Criminal Procedure, 1973 which reads as under:-

“Short title extent and commencement.

1. Short title extent and commencement. – (1) This Act may be called the Code of Criminal Procedure, 1973.

(2)  It extends to the whole of India except the State of Jammu and Kashmir:

Provided that the provisions of this Code, other than those relating to Chapters VIII, X and XI thereof, shall not apply-

(a) to the State of Nagaland,

(b) to the tribal areas, but the concerned State Government may, by notification, apply such provisions or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, with such supplemental, incidental or consequential modifications, as may be specified in the notification.

Explanation.-In this section, “tribal areas” means the territories which immediately before the 21st day of January, 1972, were included in the tribal areas of Assam, as referred to in paragraph 20 of the Sixth Schedule to the Constitution, other than those within the local limits of the municipality of Shillong.”

(emphasis supplied)

6. Learned counsel for the respondents, in the light of the above, are perfectly justified in contending that the provisions of Section 25 of the Code of Civil Procedure, 1908 and that of Section 406 of the Criminal Procedure, 1973 as applicable to the rest of India, cannot be invoked by any litigant seeking transfer of any case to or from the State of Jammu and Kashmir. It is equally true that Jammu and Kashmir Code of Civil Procedure, SVT.1977 and Jammu and Kashmir Code of Criminal Procedure SVT.1989 also do not have any provision empowering this Court to direct transfer of any case civil or criminal from any Court in the State to a Court outside that State or vice versa. Resort to the Central or State Codes of Civil and Criminal Procedures for directing transfer of cases to or from the State is, therefore, ruled out. To that extent, therefore, the contentions urged on behalf of the respondents are well-founded and legally unexceptionable.

7. The question, however, is whether independent of the provisions contained in the Codes of Civil and Criminal Procedure is there a source of power which this Court can invoke for directing transfer of a case from the State of Jammu and Kashmir or vice versa. On behalf of the petitioners, it was contended that even when the Central Codes of Civil and Criminal Procedure have no applicability to the State of Jammu and Kashmir and even when the State Codes of Civil and Criminal procedure do not contain any provision empowering this Court to direct transfer it does not mean that this Court is helpless in making an order of transfer in appropriate case where such transfer is otherwise called for in the facts and circumstances of a given case. It was argued with considerable forensic tenacity that access to justice being a fundamental right guaranteed under Article 21 of the Constitution of India, any litigant whose fundamental right to access to justice is denied or jeopardised can approach this Court for redress under Article 32 of the Constitution of India for protection and enforcement of his/her right. This Court can in any such case issue appropriate directions to protect such right which protection may in appropriate cases include a direction for transfer of the case from that State to the Court outside the State or vice versa. It was strenuously argued that Article 142 of the Constitution of India read with Article 32 amply empower this Court to intervene and issue suitable directions wherever such directions were considered necessary to do complete justice to the parties including justice in the matter of ensuring that litigants engaged in legal proceedings in any Court within or outside the State of Jammu and Kashmir get a fair and reasonable opportunity to access justice by transfer of their cases to or from that State, if necessary.

8. 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 of India empower this Court to issue suitable directions for transfer of cases to and from the State of Jammu & Kashmir in appropriate situations. Both these aspects, in our view, are well-traversed by judicial pronouncements of this Court as well as those of Courts in England in which the Courts have had an opportunity to examine the jurisprudential aspect of the Right of Access to Justice and its correlation with the right to life. Availability of Article 142 of the Constitution of India for directing transfer of cases in situations where such power is not stricto sensu available under an ordinary statute or the Constitution has also been judicially explored by this Court on several earlier occasions. We may deal with the said two aspects ad seriatim.

9. The concept of `access to justice’ as 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. The Magna Carta lays the foundation for the basic right of access to courts in the following words:

“No freeman shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land.

To no man will we sell, to no one will we deny or delay right to justice.

Moreover, all those aforesaid customs and liberties, the observance of which we have granted in our kingdom as far as pertains to us towards our men, shall be observed by all our kingdom, as well clergy as laymen, as far as pertains to them towards their men.

Wherefore, it is our will, and we firmly enjoin, that the English Church be free, and the men in our kingdom have an hold all the aforesaid liberties, rights and concessions, well as peaceably, freely and quietly, fully and wholly, for themselves and their heirs, of us and our heirs, in all aspects and in all places for ever, as is aforesaid. An oath, moreover, has been taken, as well on our part as on the part of the barons, that all these conditions aforesaid shall be kept in good faith and without evil intention – Given under our hand – the above named and many others being witnesses – in the meadow which is called Runnymede, between Windsor and Staines, on the fifteenth day of June, in the seventeenth year of our reign.”

10. The Universal Declaration of Rights drafted in the year 1948 gave recognition to two rights pertaining to `access to justice’ in the following words:

“Art.8 : Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the Constitution or by law.

Art.10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations, and of any criminal charge against him.”

11. To the same effect is Clause 3 of Article 2 of International Covenant on Civil and Political Rights, 1966 which provides that each State party to the Covenant shall undertake that every person whose rights or freedom as recognised is violated, shall have an effective remedy and to ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, and the State should also ensure to develop the possibilities of judicial remedies.

12. De Smith’s book on Judicial Review of Administrative Action (5th Ed., 1995) stated the principle thus:

“It is a common law presumption of legislative intent that access of Queen’s Court in respect of justiciable issues is not to be denied save by clear words in a statute”

13. Prof. M. Cappelletti Rabel a noted jurist in his book `Access to Justice’ (Volume I) explained the importance of access to justice in the following words:

“The right of effective access to justice has emerged with the new social rights. Indeed, it is of paramount importance among these new rights since, clearly, the enjoyment of traditional as well as new social rights presupposes mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement – the most `basic human right’ – of a system which purports to guarantee legal right.

14. Courts in England have over the centuries post Magna Carta developed fundamental principles of common law which are enshrined as the basic rights of all humans. These principles were over a period of time recognised in the form of Bill of Rights and Constitutions of various countries which acknowledged the Roman maxim `Ubi Jus Ibi Remedium’ i.e. every right when it is breached must be provided with a right to a remedy. Judicial pronouncements have delved and elaborated on the concept of access to justice to include among other aspects the State’s obligation to make available to all its citizens the means for a just and peaceful settlement of disputes between them as to their respective legal rights. In R v. Secretary of State for Home Dept., ex p Leech (1993 [4] All ER 539) Steyn LJ was dealing with a prisoner who complained that correspondence with his solicitor concerning litigation in which he was involved or which he intended to launch, was being censored by the prison authorities under the Prisons Rules, 1964. He challenged the authority of the Secretary of State to create an impediment in the free flow of communication between him and his solicitor about contemplated legal proceedings. The court held that access to justice was a basic right which could not be denied or diluted by any kind of interference or hindrance. The court said:

“It is a principle of our law that every citizen has a right of unimpeded access to a court. In Raymond v. Honey 1983 AC 1 (1982 [1] All ER 756) Lord Wilberforce described it as a `basic right’. Even in our unwritten Constitution, it ranks as a constitutional right. In Raymond v. Honey, Lord Wilberforce said that there was nothing in the Prisons Act, 1952 that confers power to `interfere’ with this right or to `hinder’ its exercise. Lord Wilberforce said that rules which did not comply with this principle would be ultra vires. Lord Elwyn Jonesand Lord Russell of Killowan agreed… It is true that Lord Wilberforce held that the rules, properly construed, were not ultra vires. But that does not affect the importance of the observations. Lord Bridge held that rules in question in that case were ultra vires… He went further than Lord Wilberforce and said that a citizen’s right to unimpeded access can only be taken away by express enactment… It seems (to) us that Lord Wilberforce’s observation ranks as the ratio decidendi of the case, and we accept that such rights can as a matter of legal principle be taken away by necessary implication.”

15. The legal position is no different in India. Access to justice has been recognised as a valuable right by courts in this country long before the commencement of the Constitution. Reference in this regard may be made to Re: Llewelyn Evans AIR 1926 Bom 551 in which Evans was arrested in Aden and brought to Bombay on the charge of criminal breach of trust. Evan’s legal adviser was denied access to meet the prisoner. The Magistrate who ordered the remand held that he had no jurisdiction to grant access, notwithstanding Section 40 the Prisons Act, 1894. The question that therefore fell for consideration was whether the right extended to the stage where the prisoner was in police custody. The High Court of Bombay, while referring to Section 340 of the Code of Criminal Procedure, 1898, held that the right under that provision implied that the prisoner should have a reasonable opportunity, if in custody, of getting into communication with his legal adviser for the purposes of preparing his defence. Madgavkar, J., comprising the Bench added that:

“… if the ends of justice is justice and the spirit of justice is fairness, then each side should have equal opportunity to prepare its own case and to lay its evidence fully, freely and fairly before the Court. This necessarily involves preparation. Such preparation is far more effective from the point of view of justice, if it is made with the aid of skilled legal advice – advice so valuable that in the gravest of criminal trials, when life or death hangs in the balance, the very state which undertakes the prosecution of the prisoner, also provides him, if poor, with such legal assistance.”

16. Reference may also be made to