Thursday, December 1, 2022

SC can transfer cases out of J&K

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The Supreme Court, today, gave a ruling that highlights yet another aspect of Article 21—the Right to Life includes Right to Justice. The court held that the Right to Justice extends to allowing transfer of cases from the jurisdiction of a court in one state to a court in another state, if required. This includes Jammu and Kashmir as well, despite the state’s special status under Article 370. The court passed this landmark judgment while hearing a batch of 13 petitions seeking transfer of their cases out of J&K.

Section 25 of the Indian Civil Procedure Code gives Supreme Court the power to transfer a case from the jurisdiction of a high court or civil court in one state to the jurisdiction of a high court or civil court in another state if, on the application of a party to the case, the court upon examining the issues finds it expedient in the interests of justice to do so.

Section 406 of the Indian Criminal Procedure Code also provides for transfers of criminal cases if it is necessary in the interest of justice. However, the Civil Procedure Code and the Criminal Procedure Code are not applicable to Jammu and Kashmir.

Many of the petitions being heard before the bench of five Supreme Court judges related to matrimonial disputes. One related to alleged assault and alleged illegal arrest of a person by a CRPF battalion in 1990. He is still missing.

Transfers of cases are frequently sought in matrimonial disputes when it becomes burdensome for one party to follow proceedings initiated at an inconvenient distance from his or her current place of residence. Sometimes it becomes difficult for a party to attend proceedings in a court due to distance and cost involved, and this is used as an instrument of harassment. At other times, a place of convenience for both parties is sought in order to end the litigation as soon as possible.

The concerned petitions were opposed on the ground that the Civil Procedure Code and Criminal Procedure Code do not apply to Jammu and Kashmir. It was also argued that the Jammu and Kashmir civil and criminal procedure codes do not have provision for such transfers. Of course, Article 370 was invoked against the applicability of transfer provisions.

In the ensuing vacuum which was coming in the way of obtaining justice for parties seeking transfer of their cases, a five-judge bench of the Supreme Court found that the answer lies in the constitutional provision for the Right to Life enforced via Article 136 of the Constitution which gives litigants “special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India” or through Article 142 which empowers the Supreme Court to pass a decree or make an order for doing complete justice in any matter before it.

Moreover, if fundamental rights are affected then the petitioner would have the right to approach the Supreme Court directly under Article 32.

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