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

NEW DELHI: 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 bench, which was hearing a batch of petitions on the issue, ordered that the individual matters seeking transfer of cases either out or into the state be decided separately on their merits by respective bench.