The Constitution Bench of the Supreme Court has held that Supreme Court can, by invoking Article 32, 136 and 142 of the Constitution is empowered to transfer a case from a Court in the State of Jammu and Kashmir to a Court outside the State or vice versa. The five Judges Bench comprising of Chief Justice of India Dr. T.S. Thakur, Justices Fakkir Mohamed Ibrahim Kalifulla, A.K. Sikri, S.A. Bobde, and R. Banumathi further made an important observation that Access to Justice is guaranteed to citizens by Article 14 and Article 21 of the Constitution of India.
The Constitution Bench was answering reference to it, which arose from Transfer Petitions, eleven seeking 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.
SC EMPOWERED TO TRANSFER CASES FROM COURTS IN JAMMU AND KASHMIR TO OUTSIDE AND VICE VERSA
The Court 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. All that can be said is that there is no enabling provision because of the reasons which we have indicated earlier. 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 or 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.”
Read the Judgment here.