IN A FIRST, SC OK’S TRANSFER OF J&K CASES OUT OF STATE

In a landmark verdict, the Supreme Court on Tuesday held that civil and criminal cases tried in Jammu & Kashmir can be transferred in or out of the State to ensure access to justice to every citizen. The judgment came with a rider that only Supreme Court under its extensive Constitutional power can pass such an order.This verdict came as a huge blow to the State’s claim that such cases have to be dealt in local courts

because Jammu & Kashmir has got its own set of Civil and Criminal Procedure Code. Breaching this immunity enjoyed by the State in matters of trying its own cases, the Bench of Chief Justice TS Thakur, Justices FM Ibrahim Kalifulla, AK Sikri, SA Bobde and R Banumathi said, “The absence of an enabling provision cannot be constituted as a prohibition against transfer of cases to or from the State of Jammu & Kashmir…what is important to see is whether there is any fundamental principle of public policy underlying any such prohibition.” The Bench concluded that the prohibition shown by J&K Government had no such fundamental basis of public policy. Instead, the Bench concluded that denial of transfer of cases to and from the State will result in violation of citizen’s right to access to justice which is part of Right to Life (Article 21) and will reduce the guarantee of equality before laws, an integral part of Article 14, into a “mere teasing illusion”.

The Bench was considering a batch of 11 civil transfer petitions and two criminal transfer petitions that demanded transfer of individual cases from J&K to other States and in few cases from other courts to J&K courts.

The five-judge Constitution Bench in one voice said, “Even if the provisions 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 courts are satisfied that denial of such a transfer would result in violation of right to access to justice to a litigant in a given fact situation.”

The petitioners who were litigants were caught in a legal vacuum as the Code of Civil Procedure Section 25 allowing inter-court transfer between two states and similar provision existing in Section 406 of Code of Criminal Procedure does not apply to Jammu and Kashmir. The state has its own Code of Civil Procedure 1977 and Code of Criminal Procedure 1989 that expressly bars Supreme Court to transfer any case outside the state or vice versa. The Court directed the individual cases to be listed afresh before the apex court to consider whether fact situation demands transfer of the case outside the State