Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL/CRIMINAL ORIGINAL JURISDICTION

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

1

Page 2 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

2

Page 3 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

3

Page 4 J U D G M E N T

T.S. THAKUR, CJI.

1.A three-judge bench of this Court has, by an order

dated 21

st

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

4

Page 5 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 42

nd

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

5

Page 6 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

6

Page 7 of non-extension of the Constitution 42

nd

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

7

Page 8 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)

8

Page 9 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

9

Page 10 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

10

Page 11 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

11

Page 12 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.

12

Page 13 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

13

Page 14 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 (5

th

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

Page 15 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

15

Page 16 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:

16

Page 17 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.”

17

Page 18 16.Reference may also be made to P.K. Tare v. Emperor

(AIR 1943 Nagpur 26). That was a case where the petitioner

had participated in the Quit India Movement of 1942. The

detention was challenged on the ground of being vitiated on

account of refusal of permission by the authorities to allow

them to meet their counsel to seek legal advice or approach

the court in person. The State opposed that plea based on

Defence of India Act 1939, which, according to it, took away

right of the detenu to move a habeas corpus petition under

Section 491 of the Cr.P.C., 1898. Rejecting the contention

and relying upon the observation of Lord Hailsham in

Eshugbayi v. Officer Administering the Govt. of

Nigeria, the court held that such fundamental rights,

safeguarded under the Constitution with elaborate and

anxious care and upheld time and again by the highest

tribunals of the realm in language of utmost vigour, cannot

be swept away by implication or removed by some sweeping

generality. Justice Vivian Bose, giving the leading opinion of

the court explained that the right to move the High Court

18

Page 19 remained intact notwithstanding the Defence of India Act,

1939. He further held that although courts allow a great

deal of latitude to the executive and presumptions in favour

of the liberty of the subject are weakened, those rights do

not disappear altogether. The Court ruled that the attempt to

keep the applicants away from the Court under the guise of

these rules was an abuse of the power and warranted

intervention. Justice Bose emphasized the importance of the

right of any person to apply to the court and demand that he

be dealt with according to law. He said:

“… … …the right is prized in India no less highly than

in England, or indeed any other part of the Empire,

perhaps even more highly here than elsewhere; and

it is zealously guarded by the courts.”

17.Decisions of this Court too have unequivocally

recognised the right of a citizen to move the court as a

valuable constitutional right recognised by Article 32 of the

Constitution as fundamental right by itself. [See In re under

Article 143, Constitution of India [Keshav Singh case]

(AIR 1965 SC 745) and L. Chandra Kumar v. Union

of India (1997) 3 SCC 261 ].

19

Page 20 18.In Hussainara Khatoon v. State of Bihar (1980) 1

SCC 81 this Court declared speedy trial as an integral and

essential part of the fundamental right to life and liberty

enshrined in Article 21. It also pointed out that Article 39A

made free legal service an inalienable element of

reasonable, fair and just procedure and that the right to

such services was implicit in the guarantee of Article 21.

19.In Imtiyaz Ahmad v. State of Uttar Pradesh & Ors.

(2012) 2 SCC 688, a two-Judge Bench of this Court to which

one of us (Thakur J.) was also a party, this Court examined

the correctness of an interlocutory order passed by a learned

Single Judge of the High Court of Allahabad, whereby, the

Single Judge had stayed the order passed by the Additional

Chief Judicial Magistrate, directing registration of a case

against the respondents. Since the matter had remained

pending before the High Court, and was not heard for a long

time of over six years or so and since several other cases in

different High Courts in India were similarly pending in

which the proceedings before the Trial Court had been

stayed, no matter the cases involved commission of heinous

20

Page 21 offences like murder, rape, kidnapping and dacoity etc., this

Court enlarged the scope of the proceedings and directed

the Registrar Generals of the High Courts to furnish a report

containing statistics of cases pending in the respective

Courts in which the proceedings had been stayed at the

stage of registration of FIR, and framing of charges in

exercise of powers under Article 226 of the Constitution or

Section 482 or 397 of the Code of Criminal Procedure. On

the basis of the statistics so furnished by the High Courts,

this Court held that administration of justice was facing

problems of serious dimensions. This Court also noticed, on

the basis of the material made available by the High Courts,

that unduly long delay was being caused in the disposal of

the cases resulting in a blatant violation of the rule of law

and the right of common man to seek access to justice.

Emphasizing the importance of access to justice and

recognizing the right as a fundamental right relatable to

Article 21 of the Constitution of India, this Court observed:

“……

25. Unduly long delay has the effect of bringing

about blatant violation of the rule of law and adverse

impact on the common man’s access to justice. A

person’s access to justice is a guaranteed

21

Page 22 fundamental right under the Constitution and

particularly Article 21. Denial of the right undermines

public confidence in the justice delivery system and

incentivises people to look for shot cuts and other

fora where they feel that injustice will be done

quicker. In the long run, this also weakens the

justice delivery system and poses a threat to the

rule of law.

26. It may not be out of place to highlight that

access to justice in an egalitarian democracy must

be understood to mean qualitative access to justice

as well. Access to justice is, therefore, much more

than improving an individual’s access to courts, or

guaranteeing representation. It must be defined in

terms of ensuring that legal and judicial outcomes

are just and inequitable [see United Nations

Development Programme, Access to Justice –

Practice Note (2004)]

27. The present case discloses the need to reiterate

that “access to justice” is vital for the rule of law,

which by implication includes the right of access to

an independent judiciary. It is submitted that the

stay of investigation or trial for significant periods of

time runs counter to the principle of rule of law,

wherein the rights and aspirations of citizens are

intertwined with expeditious conclusion of matters.

It is further submitted that delay in conclusion of

criminal matters signifies a restriction on the right of

access to justice itself, thus amounting to a violation

of citizen’s rights under the Constitution, in

particular under Article 21.”

20.The Court held that rule of law, independence of

judiciary and access to justice are conceptually interwoven.

The Court also referred to the International Covenant on

Civil and Political Rights and the statute of the International

Criminal Court. It also referred to Article 47 of the Charter

22

Page 23 of Fundamental Rights of European Union, 2007 and

European Convention on Human Rights and Fundamental

Freedom, 1950. Reliance was placed upon the European

Court of Human Rights decision in Delcourt v. Belgium ,

1970 ECHR 1 to hold that access to justice was a valuable

human and fundamental right relatable to Article 21 of the

Constitution of India. Having said that, this Court issued

directions for better maintenance of the Rule of Law and

better administration of Justice by the High Courts. It also

directed the Law Commission of India to undertake a study

and submit its recommendations in relation to measures that

need to be taken by creation of additional courts and other

allied matters including rational and scientific methods for

elimination of arrears to help reduce delay and speedy

clearance of the backlog of cases.

21.In Brij Mohan Lal v. Union of India and Ors. (2012)

6 SCC 502 this Court declared that Article 21 guarantees to

the citizens the rights to expeditious and fair trial. The Court

observed:

“137. Article 21 of the Constitution of India takes in

its sweep the right to expeditious and fair trial. Even

Article 39-A of the Constitution recognises the right

23

Page 24 of citizens to equal justice and free legal aid. To put

it simply, it is the constitutional duty of the

Government to provide the citizens of the country

with such judicial infrastructure and means of access

to justice so that every person is able to receive an

expeditious, inexpensive and fair trial. The plea of

financial limitations or constraints can hardly be

justified as a valid excuse to avoid performance of

the constitutional duty of the Government, more

particularly, when such rights are accepted as basic

and fundamental to the human rights of citizens.”

22.In Tamilnad Mercantile Bank Shareholders

Welfare Association v. S.C. Sekar and Others (2009) 2

SCC 784, this Court declared that an aggrieved person

cannot be left without the remedy and that access to justice

is a human right and in certain situations even a

fundamental right.

23.In order that the juristic content and basis of access to

justice as a fundamental right is not provided only by judicial

pronouncements, the Commission for Review of the

Constitution has recommended that access to justice be

incorporated as an express fundamental rights as in the

South African Constitution, 1996. Article 34 of the South

African Constitution reads:

“ Art.34: Access to Courts and Tribunals and

speedy justice.

24

Page 25 (1) Everyone has the right to have any dispute

that can be resolved by the application of law

decided in a fair public hearing before a Court or

tribunal or forum or where appropriate, another

independent and impartial Court, tribunal or

forum.

(2) The right to access to Courts shall be

deemed to include right to reasonably speedy

and effective justice in all matters before the

Courts, tribunals or other forum and the State

shall take all reasonable steps to achieve that

object.”

24.Insertion of Article 30 A in the Constitution in the

following terms was accordingly proposed by the

Commission:

“30 A: Access to Courts and Tribunals and

speedy justice.

(1)Everyone has a right to have any dispute

that can be resolved by the application of law

decided in a fair public hearing before an

independent court or, where appropriate,

another independent and impartial tribunal or

forum.

(2)The right to access to Courts shall be

deemed to include the right to reasonably

speedy and effective justice in all matters before

the courts, tribunals or other fora and the State

shall take all reasonable steps to achieve the

said object.”

25

Page 26 25.The recommendation has not yet led to the

incorporation of the proposed Article 30 A, but, that does

not in the least matter, for what the proposed article may

have added to the constitutional guarantees already

stands acknowledged as a part of the right to life under

Article 21 of the Constitution by judicial pronouncements

of this Court. The proposed incorporation of Article 30 A,

would have simply formalised what already stands

recognised by Judges and Jurists alike. V. Krishna Iyer J.

has in his inimitable style explained the importance of

access to justice in the following words :

“Access to justice is basic to human rights and

directive principles of State Policy become ropes

of sand, teasing illusion and promise of

unreality, unless there is effective means for the

common people to reach the Court, seek remedy

and enjoy the fruits of law and justice.”

26.To sum up : Access to justice is and has been

recognised as a part and parcel of right to life in India and in

all civilized societies around the globe. The right is so basic

and inalienable that no system of governance can possibly

ignore its significance, leave alone afford to deny the same

26

Page 27 to its citizens. The Magna Carta, the Universal Declaration of

Rights, the International Covenant on Civil and Political

Rights, 1966, the ancient Roman Jurisprudential maxim of

‘Ubi Jus Ibi Remedium’, the development of fundamental

principles of common law by judicial pronouncements of the

Courts over centuries past have all contributed to the

acceptance of access to justice as a basic and inalienable

human right which all civilized societies and systems

recognise and enforce.

27.This Court has by a long line of decisions given an

expansive meaning and interpretation to the word ‘life’

appearing in Article 21 of the Constitution. In Maneka

Gandhi v. Union of India (1978) 1 SCC 248, this Court

declared that the right to life does not mean mere animal

existence alone but includes every aspect that makes life

meaningful and liveable. (to be checked). In Sunil Batra v.

Delhi Administration (1978) 4 SCC 494 the right against

solitary confinement and prison torture and custodial death

was declared to be a part of right to life. In Charles

Sobhraj v. Suptd. Central Jail (1978) 4 SCC 104 the

27

Page 28 right against bar fetters was declared to be a right protected

under Article 21 of the Constitution. In Khatri II v. State

of Bihar (1981) 1 SCC 627, the right to free legal aid was

held to be a right covered under Article 21 of the

Constitution. In Prem Shankar Shukla v. Delhi

Administration (1980) 3 SCC 526 the right against

handcuffing was declared to be a right under Article 21. So

also in Rudal Shah v. State of Bihar (1983) 4 SCC 141

the right to compensation for illegal and unlawful detention

was considered to be a right to life under Article 21 and also

under Article 14. In Sheela Barse v. Union of India

(1988) 4 SCC 226, this Court declared speedy trial to be

an essential right under Article 21. In Parmanand Katara

v. Union of India (1989) 4 SCC 248, right to emergency,

medical aid was declared to be protected under Article 21 of

the Constitution. In Chameli Singh v. State of U.P.

(1996) 2 SCC 549 and Shantistar Builders v. Narayan

Khimalal Totame (1990) 1 SCC 520, right to shelter,

clothing, decent environment and a decent accommodation

was also held to be a part of life. In M.C. Mehta v. Union

28

Page 29 of India (1997) 1 SCC 388, right to clean environment

was held to be a right to life under Article 21. In Lata

Singh v. State of U.P. (2006) 5 SCC 475 , right to

marriage was held to be a part of right to life under Article

21 of the Constitution. In Suchita Srivastava v.

Chandigarh Administration (2009) 9 SCC 1, right to

make reproductive choices was declared as right to life.

While in Sukhwant Singh v. State of Punjab (2009) 7

SCC 559 right to reputation was declared to be a facet of

right to life guaranteed under Article 21. In the recent

Constitution Bench Judgment decision of this Court in

Subramanian Swamy v. Union of India [W.P (Crl.)

No.184 of 2014], this Court held reputation to be an

inherent and inseparable component of Article 21.

28.Given the fact that pronouncements mentioned above

have interpreted and understood the word “life” appearing in

Article 21 of the Constitution on a broad spectrum of rights

considered incidental and/or integral to the right to life,

there is no real reason why access to justice should be

considered to be falling outside the class and category of the

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Page 30 said rights, which already stands recognised as being a part

and parcel of the Article 21 of the Constitution of India.

If “life” implies not only life in the physical sense but a

bundle of rights that makes life worth living, there is no

juristic or other basis for holding that denial of “access to

justice” will not affect the quality of human life so as to take

access to justice out of the purview of right to life

guaranteed under Article 21. We have, therefore, no

hesitation in holding that access to justice is indeed a facet

of right to life guaranteed under Article 21 of the

Constitution. We need only add that access to justice may

as well be the facet of the right guaranteed under Article 14

of the Constitution, which guarantees equality before law

and equal protection of laws to not only citizens but

non-citizens also. We say so because equality before law

and equal protection of laws is not limited in its application

to the realm of executive action that enforces the law. It is

as much available in relation to proceedings before Courts

and tribunal and adjudicatory fora where law is applied and

justice administered. The Citizen’s inability to access courts

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Page 31 or any other adjudicatory mechanism provided for

determination of rights and obligations is bound to result in

denial of the guarantee contained in Article 14 both in

relation to equality before law as well as equal protection of

laws. Absence of any adjudicatory mechanism or the

inadequacy of such mechanism, needless to say, is bound to

prevent those looking for enforcement of their right to

equality before laws and equal protection of the laws from

seeking redress and thereby negate the guarantee of

equality before laws or equal protection of laws and reduce it

to a mere teasing illusion. Article 21 of the Constitution

apart, access to justice can be said to be part of the

guarantee contained in Article 14 as well.

29.What then is the sweep and content of that right is the

next question that must be answered for a fuller

understanding of the principle and its significance in real life

situations.

30.Four main facets that, in our opinion, constitute the

essence of access to justice are :

i)The State must provide an effective

adjudicatory mechanism;

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Page 32 ii)The mechanism so provided must be

reasonably accessible in terms of distance;

iii)The process of adjudication must be speedy;

and

iv)The litigant’s access to the adjudicatory

process must be affordable.

(i)The need for adjudicatory mechanism: One of

the most fundamental requirements for providing to

the citizens access to justice is to set-up an

adjudicatory mechanism whether described as a

Court, Tribunal, Commission or Authority or called by

any other name whatsoever, where a citizen can

agitate his grievance and seek adjudication of what

he may perceive as a breach of his right by another

citizen or by the State or any one of its

instrumentalities. In order that the right of a citizen

to access justice is protected, the mechanism so

provided must not only be effective but must also be

just, fair and objective in its approach. So also the

procedure which the court, Tribunal or Authority may

adopt for adjudication, must, in itself be just and fair

32

Page 33 and in keeping with the well recognized principles of

natural justice.

(ii)The mechanism must be conveniently accessible

in terms of distance:

The forum/mechanism so provided must, having

regard to the hierarchy of courts/tribunals, be

reasonably accessible in terms of distance for access

to justice since so much depends upon the ability of

the litigant to place his/her grievance effectively

before the court/tribunal/court/competent authority

to grant such a relief. (See D.K. Basu v. State of

West Bengal (2015) 8 SCC 774.

(iii) The process of adjudication must be speedy.

“Access to justice” as a constitutional value will be a

mere illusion if justice is not speedy. Justice

delayed, it is famously said, is justice denied. If the

process of administration of justice is so time

consuming, laborious, indolent and frustrating for

those who seek justice that it dissuades or deters

them from even considering resort to that process

as an option, it would tantamount to denial of not

only access to justice but justice itself. In Sheela

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Page 34 Barse’s case (supra) this Court declared speedy trial

as a facet of right to life, for if the trial of a citizen

goes on endlessly his right to life itself is violated.

There is jurisprudentially no qualitative difference

between denial of speedy trial in a criminal case, on

the one hand, and civil suit, appeal or other

proceedings, on the other, for ought we know that

civil disputes can at times have an equally, if not,

more severe impact on a citizen’s life or the quality

of it. Access to Justice would, therefore, be a

constitutional value of any significance and utility

only if the delivery of justice to the citizen is speedy,

for otherwise, the right to access to justice is no

more than a hollow slogan of no use or inspiration

for the citizen. It is heartening to note that over the

past six decades or so the number of courts

established in the country has increased manifold in

comparison to the number that existed on the day

the country earned its freedom. There is today

almost invariably a court of Civil Judge junior or

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Page 35 senior division in every taluka and a District and

Sessions Judge in every district. In terms of

accessibility from the point of view of distance which

a citizen ought to travel, we have come a long way

since the time the British left the country. However,

the increase in literacy, awareness, prosperity and

proliferation of laws has made the process of

adjudication slow and time consuming primarily on

account of the over worked and under staffed

judicial system, which is crying for creation of

additional courts with requisite human resources

and infrastructure to effectively deal with an ever

increasing number of cases being filed in the courts

and mounting backlog of over thirty million cases in

the subordinate courts. While the States have done

their bit in terms of providing the basic adjudicatory

mechanisms for disposal of resolution of civil or

criminal conflicts, access to justice remains a big

question mark on account of delays in the

completion of the process of adjudication on account

35

Page 36 of poor judge population and judge case ratio in

comparison to other countries.

(iv)The process of adjudication must be

affordable to the disputants:

Access to justice will again be no more than an

illusion if the adjudicatory mechanism provided is

so expensive as to deter a disputant from taking

resort to the same. Article 39-A of the Constitution

promotes a laudable objective of providing legal aid

to needy litigants and obliges the State to make

access to justice affordable for the less fortunate

sections of the society. Legal aid to the needy has

been recognized as one of the facets of access to

justice in Madhav Hayawadanrao Hoskot vs.

State Of Maharashtra (1978) 3 SCC 544 where

this court observed:

“If a prisoner sentenced to imprisonment, is

virtually unable to exercise his

constitutional and statutory right of appeal,

inclusive of special leave to appeal, for want

of legal assistance, there is implicit in the

Court under Art. 142, read with Arts. 21,

and 39A of the Constitution, power to

assign counsel for such imprisoned

individual for doing complete justice. This is

a necessary incident of the right of appeal

conferred by the Code and allowed by Art.

136 of the Constitution. The inference is

36

Page 37 inevitable that this is a State's duty and not

government's charity. Equally affirmative is

the implication that while legal services

must be free to the beneficiary, the lawyer

himself has to be reasonably remunerated

for his services. Surely, the profession has a

public commitment to the people but mere

philanthropy of its members yields short

mileage in the long run. Their

services, especially when they are on behalf

of the State, must be paid for. Naturally,

the State concerned must pay a reasonable

sum that the court may fix when assigning

counsel to the prisoner. Of course, the court

may judge the situation and consider from

all angles whether it is necessary for the

ends of justice to make availale legal aid in

the particular case. In every country where

free legal services are given it is not done in

all cases but only where public justice

suffers otherwise. That discretion resides in

the court.”

31.Affordability of access to justice has been, to an extent,

taken care of by the State sponsored legal aid programmes

under the Legal Service Authorities Act, 1987. Legal aid

programmes have been providing the much needed support

to the poorer sections of the society in the accessing justice

in Courts.

32.That brings us to the second facet of the question

referred to us namely whether Article 32 of the Constitution

of India read with Article 142 empowers the Supreme Court

to direct transfer in a situation where neither the Central

37

Page 38 Code of Civil Procedure or the Central Code of Criminal

Procedure empowers such transfer to/from the State of

Jammu and Kashmir. The need for transfer of cases from

one court to the other often arises in several situations

which are suitably addressed by the courts competent to

direct transfers in exercise of powers available to them

under the Code of Civil Procedure (CPC) or the Code of

Criminal Procedure (Cr.P.C.). Convenience of parties and

witnesses often figures as the main reason for the courts to

direct such transfers. What is significant is that while in the

rest of the country the courts deal with applications for

transfer of civil/criminal cases under the provisions of the

CPC and the Cr.P.C. the fact that there is no such enabling

provision for transfer from or to the State of Jammu and

Kashmir does not detract from the power of a superior court

to direct such transfer, if it is of the opinion that such a

direction is essential to subserve the interest of justice. In

other words, even if the provision empowering courts to

direct transfer from one court to other were to stand deleted

from the statute, the superior courts would still be

38

Page 39 competent to direct such transfer in appropriate cases so

long as such courts are satisfied that denial of such a

transfer would result in violation of the right to access to

justice to a litigant in a given fact situation.

33.Now if access to justice is a facet of the right to life

guaranteed under Article 21 of the Constitution, a violation

actual or threatened of that right would justify the invocation

of this Court’s powers under Article 32 of the Constitution.

Exercise of the power vested in the court under that Article

could take the form of a direction for transfer of a case from

one court to the other to meet situations where the

statutory provisions do not provide for such transfers. Any

such exercise would be legitimate, as it would prevent the

violation of the fundamental right of the citizens guaranteed

under Article 21 of the Constitution.

34.That apart from Article 32 even Article 142 of the

Constitution can be invoked to direct transfer of a case from

one court to the other, is also settled by a Constitution

Bench decision of this Court in Union Carbide Corporation

v. Union of India (1991) 4 SCC 584. One of the questions

39

Page 40 that fell for consideration in that case was whether this

Court could in exercise of its powers under Articles 136 and

142 withdraw a case pending in the lower court and dispose

of the same finally even when Article 139-A does not

empower the court to do so. Answering the question in the

affirmative, this Court held that the power to transfer cases

is not exhausted under Article 139-A of the Constitution.

This Court observed that Article 139-A enables the litigant to

seek transfer of proceedings, if the conditions in the Article

are satisfied. The said Article was not intended to nor does

it operate to affect the wide powers available to this Court

under Articles 136 and 142 of the Constitution. The

following two passages from the judgments are apposite in

this regard:

“61. To the extent power of withdrawal and

transfer of cases to the apex Court is, in the

opinion of the Court, necessary for the purpose

of effectuating the high purpose of Articles 136

and 142(1), the power under Article 139-A must

be held not to exhaust the power of withdrawal

and transfer. Article 139-A, it is relevant to

mention here, was introduced as part of the

scheme of the Constitution Forty-second

Amendment. That amendment proposed to

invest the Supreme Court with exclusive

jurisdiction to determine the constitutional

40

Page 41 validity of central laws by inserting Articles

131-A, 139-A and 144-A. But Articles 131-A and

144-A were omitted by the Forty-third

Amendment Act, 1977, leaving Article 139-A

intact. That article enables the litigants to

approach the apex Court for transfer of

proceedings if the conditions envisaged in that

article are satisfied. Article 139-A was not

intended, nor does it operate, to whittle down

the existing wide powers under Articles 136 and

142 of the Constitution.”

35.Dealing with the question whether a provision contained

in an ordinary statute would affect the exercise of powers

under Article 142 of the Constitution, this Court held, that

the constitutional power under Article 142 was at a different

level altogether and that an ordinary statute could not

control the exercise of that power. Speaking for the majority,

Venkatachaliah J., as His Lordship then was, observed:

“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, ipso facto, act

as prohibitions or limitations on the

constitutional powers under Article 142. Such

prohibitions or limitations in the statutes might

embody and reflect the scheme of a particular

law, taking into account the nature and status of

the authority or the court on which conferment

or power – limited in some appropriate way – is

contemplated. The limitations may not

41

Page 42 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 assessing the needs of

“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 proposition does not

relate to the powers of the Court under Article

142, but only to what is or is not ‘complete

justice’ of a cause or matter and in the ultimate

analysis of the propriety of the exercise of the

power. No question of lack of jurisdiction or of

nullity can arise.”

36.In the cases at hand, 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

42

Page 43 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 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. We accordingly

answer the question referred to us in the affirmative.

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Page 44 37.The transfer petitions shall now be listed before the

regular bench for hearing and disposal on merits keeping in

view what has been observed above.

………………………………… CJI.

(T.S. THAKUR)

…………………………… .…..…J.

(FAKKIR MOHAMED IBRAHIM KALIFULLA)

…………………………… .…..…J.

(A.K. SIKRI)

…………………………… .…..…J.

(S.A. BOBDE)

…………………………… .…..…J.

(R. BANUMATHI)

New Delhi

July 19, 2016

44