# ANITA KUSHWAHA v. PUSHAP SUDAN

- **Citation:** [2016] 9 S.C.R. 560
- **Court:** Supreme Court of India
- **Decided:** 2016-07-19
- **Bench:** T.S. Thakur, Fakkir Mohamed Ibrahim Kalifulla, A.K. Sikri, S.A. Bobde, R. Banumathi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anita-kushwaha-v-pushap-sudan-31476
- **Pages:** 31

## Headnote

Constitution .of India:
Arts.32, 142 - Transfer petition - Whether Supreme Court
has power to transfer a civil or cri111inal case pending in any court
in the State of Jam111u and Kash111ir to a Court outside that State and
vice versa - Held: The provisions of s.25, CPC and that of s.406,
D . Cr.P.C. as applicable to the rest of India, cannot be invoked by any
litigant seeking transfer of any case to or from the State of Jam111u
and Kashmir - It is equally true that Jammu and Kashmir Code of
Civil Procedure, 1977 and Jammu and Kashmir Code of Criminal
Procedure, 1989 also do not have any provision empowering the
Supreme Cou/"t to direct transfer 'of any case civil or criminal from
E 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 - The fact that there is no such enabling provision for
transfer from or to the State of Jammu and Kashmir does not detract
F
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 - If acr;:ess to justice is a facet of the right to life
guaranteed under Art.21, a violation actual or threatened of that
right would justify the invocation of poivers under Art.32 - Any
such exercise would be legitimate, as it would prevent the violation
G of the fundamental right of the citizens guaranteed under Art. 21 -
Apart from that, even Art. 142 can be invoked to direct transfer of
a case from one court to the other 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
iustice - The provisions of Arts. 32, 136 and 142 are, therefore,
H
560
ANITA KUSHWAHA v. PUSHAP SUDAN
wide enough to empower Supreme Court to direct such transfer in
appropriate situations - Code of Civil Procedure, 1908 - s.25 - ·
Code of Criminal Procedure, 1973 - s.406.
Arts.14, 21 - Access tojustice - Held: ls .inc!eed a facet of
right to life guaranteed under Art. 21 ~Access to justice may as
well be the facet of the right guaranteed under Art. 14 which
guarantees equality before law and equal protection of laws to 110t
only citizens but non-citizens also - Citizens inability to access
courts or any other adjudicato'ry mechanism provided for
determination of rights .and obligations is bound to result in denial
of the guarantee contained in Art.14 both in relation to equality
before law as well as equal protection of laws.
Access tojustice - Principles of - Held: State must provide
an effective adjudicatory mechanism; the mechanism so provided
must /;Je reasonably accessible in terms of distance; the process of
adjudication must be speedy; and the litigants access to the
adjudicatory process must be affordable.
Code of Civil Procedure, 1908: s.1 - Code of the Criininal .
Procedure, 1973 - s.l - General application of CPC and Cr.P.C to
the State of Jammu and Kashmir - Held: CPC and also Cr.P.C, as
applicable to the rest of the country specifically exclude the
application thereof to the State of Jammu and Kashmir.
Answering the reference, the ~ourt
HELD: 1.1. The concept of 't1ccess to .iustice' as an
invaluable human right, also recognized in most constitutional
democn.cies as a fundamental right, has its origin in common law
as much as in the Magna Carta. The Universal Declaration of
Rights drafted in the year 1948 gave recognition to two rights
pertaining to 'access to justice'. To the same effect is Clause 3 of
Article 2 oflnternational Covenant on Civil and PoHtical Rights,
1966 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, admini

## Text

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[2016] 9 S.C.R. 560
ANITA KUSHWAHA
v.
PUSHAP SUDAN
(Transfer Petition (C) No. 1343 of2008)
JULY 19, 2016
[T.S. THAKUR, CJI, FAKKIR MOHAMED IBRAHIM
KALIFULLA, A.K. SIKRI, S.A. BOBDE AND
R. BANUMATHI, JJ.]
Constitution .of India:
Arts.32, 142 - Transfer petition - Whether Supreme Court
has power to transfer a civil or cri111inal case pending in any court
in the State of Jam111u and Kash111ir to a Court outside that State and
vice versa - Held: The provisions of s.25, CPC and that of s.406,
D . Cr.P.C. as applicable to the rest of India, cannot be invoked by any
litigant seeking transfer of any case to or from the State of Jam111u
and Kashmir - It is equally true that Jammu and Kashmir Code of
Civil Procedure, 1977 and Jammu and Kashmir Code of Criminal
Procedure, 1989 also do not have any provision empowering the
Supreme Cou/"t to direct transfer 'of any case civil or criminal from
E 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 - The fact that there is no such enabling provision for
transfer from or to the State of Jammu and Kashmir does not detract
F
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 - If acr;:ess to justice is a facet of the right to life
guaranteed under Art.21, a violation actual or threatened of that
right would justify the invocation of poivers under Art.32 - Any
such exercise would be legitimate, as it would prevent the violation
G of the fundamental right of the citizens guaranteed under Art. 21 -
Apart from that, even Art. 142 can be invoked to direct transfer of
a case from one court to the other 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
iustice - The provisions of Arts. 32, 136 and 142 are, therefore,
H
560
ANITA KUSHWAHA v. PUSHAP SUDAN
wide enough to empower Supreme Court to direct such transfer in
appropriate situations - Code of Civil Procedure, 1908 - s.25 - ·
Code of Criminal Procedure, 1973 - s.406.
Arts.14, 21 - Access tojustice - Held: ls .inc!eed a facet of
right to life guaranteed under Art. 21 ~Access to justice may as
well be the facet of the right guaranteed under Art. 14 which
guarantees equality before law and equal protection of laws to 110t
only citizens but non-citizens also - Citizens inability to access
courts or any other adjudicato'ry mechanism provided for
determination of rights .and obligations is bound to result in denial
of the guarantee contained in Art.14 both in relation to equality
before law as well as equal protection of laws.
Access tojustice - Principles of - Held: State must provide
an effective adjudicatory mechanism; the mechanism so provided
must /;Je reasonably accessible in terms of distance; the process of
adjudication must be speedy; and the litigants access to the
adjudicatory process must be affordable.
Code of Civil Procedure, 1908: s.1 - Code of the Criininal .
Procedure, 1973 - s.l - General application of CPC and Cr.P.C to
the State of Jammu and Kashmir - Held: CPC and also Cr.P.C, as
applicable to the rest of the country specifically exclude the
application thereof to the State of Jammu and Kashmir.
Answering the reference, the ~ourt
HELD: 1.1. The concept of 't1ccess to .iustice' as an
invaluable human right, also recognized in most constitutional
democn.cies as a fundamental right, has its origin in common law
as much as in the Magna Carta. The Universal Declaration of
Rights drafted in the year 1948 gave recognition to two rights
pertaining to 'access to justice'. To the same effect is Clause 3 of
Article 2 oflnternational Covenant on Civil and PoHtical Rights,
1966 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
561
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SUPREME COURT REPORTS
[2016) 9 S.C.R.
A develop the possibilities of judicial remedies. [Paras 9, 10 and
B
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11)(572-G, H; 573-F; 574-A-B)
Judicial Review of Administrative Action (5'h Ed., 1995)
by De Smith; Access to Justice' (Volume I) by Prof M
Cappelletti Rabel - referred to.
1.2. 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 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. [Para 26)(581-E-G)
1.3. 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
E
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.
Therefore, access to justice is indeed a facet of right to life
guaranteed under Article 21 of the Constitution. Access to justice
may as well be the facet of the right guaranteed .under Article 1.4
F of the Constitution, which guarantees equality before law and
equal protection of laws to not only citizens but non-citizens also.
This is 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
G where law is applied and justice administered. The Citizen's
inability to,access courts 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 eqilal protectio!i oflaws.·
Absence of any adjudicatory mechanism or the inadequacy of such
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ANJTA KUSHWAHA v. PUSHAP SUDAN
563
mechanism 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. [Para 28)[583-A-E]
2. Four main facets that constitute the essence of access to
justice are :
(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.
(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.
(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.
·
·
(iv) The process. of adjudication must be affordable to the
disputants:
Access to justice will again be no more tban an illusi11n 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 pro~otes a laudable objective of providing legal aid ·
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t.o nee4y litigants and obliges the State to make. access to justice
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564
SUPREME COURT REPORTS
[2016) 9 S.C.R.
A affordable for the less fortunate sections of the society. [Para 30)
(583-G; 584-B-C, D-G; 585-G-H; 586-A)
.
3. 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 Code of Civil Procedure or
B 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
c 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
D 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
E 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 such courts are satisfied that denial of such a transfer
would result in violation of the right to access to justice to a litigant
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in a given fact situation. [Para 32J[587-B-E]
Keshav Singh AIR 1965 SC 745 : 1965 SCR 413;
L. Chandra Kumar '" Union of India (1997) 3 SCC
261:1997 (2) SCR 1186; Hussainara Khatoon v. State
of Bihar (1980) 1 SCC 81 : 1979 (3) SCR 169; lmtiyaz
Ahmad v. State of Uttar Pradesh & Ors. (2012) 2 SCC
688 : 2012 (1) SCR 779; Brij Mohan Lal v. Union of
India and Ors. (2012) 6 SCC 502 : 2012 (5) SCR 305;
Tamilnad Mercantile Bank Shareholders Welfare
Association v. S.C. Sekar and Ors. (2009) 2 SCC 784 :
.2008 (17) SCR 85; Maneka Gandhi '" Union of India
• (1978) .1 SCC 248 : 1978 (2) SCR 621; Sun ii Batra v.
'
ANlTA KUSHWAHA v. PUSHAP SUDAN
Delhi Administration (1978) 4 SCC 494 : 1979 (1) SCR
392; Charles Sobhraj v. Suptd. Central Jai1 (1978) 4 ·
SCC 104 : 1979 (1) SCR 512; Khatri 11 v. State of
Bihar (1981) 1 SCC 627 : 1981 (2) SCR 408; Prem
Shankar Shukla v. Delhi Administration (1980). 3 SCC
526 : 1980 (3) SCR 855; Ruda/ Shah v. State of Bihar
(1983) 4 SCC 141: 1983 (3) SCR 508; Sheela Barse
v. Union of India (1988) 4 SCC 226 : 1988 (2) Suppl.
SCR 643; Parmanand Katara v. Union of India (1989)
4 SCC 248; Chameli SinJ?h v. State of U.P. (1996) 2
SCC 549 : 1995 (6) Suppl. SCR 827; Shantistar Builders
v. Narayan Khimalal Totame (1990) 1 SCC 520; M.C.
Meh{a v. Union qf India (1997) 1 SCC 388; Lata Singh
v.· State of U.P. (2006) 5 SCC 475 : 2006 (3) Suppl.
SCR 350; Suchita
Srivastava v. Chandigarh
Administration (2009) 9 SCC 1; Sukhwant Singh v;
State of Punjab (2009) 7 SCC 559; Subramanian
~amy v. Union qf India W.P (Crl.) No.184 of 2014;
D.K. Basu 1t State of West Bengal (2015) 8 SCC 774 :
2015 (6) SCR 1002; Madhav Hayawadanrao Hoskot
v. State Qf Maharashtra (1978) 3 SCC 544 : 1979 (1)
SCR 192; D.K. Basu v. State of West Bengal (2015) 8
SCC 744 : 2015 (7) SCR 814 - relied on.
4. Now if access to justice is a facet of the right to life
guaranteed under Article 21 of tlie Constitution, a violation actual
or threatened of that right would justify the invocaticm 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 unde.r Article 21. of the
Constitution. That apart from Article 32 even Article 142 of tile
Constitution can be invoked to direct transfer of a case from one
court to the other. 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
565
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the State or vice versa. There is no enabling provision as such.
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566
SUPREME COURT REPORTS
[2016] 9 S.C.R.
A 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
B 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
C in the State of Jammu and Kashmir will deny the citizen his/her
rig~t 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 Civii and Criminal Procedures do not extend to the State nor
0
do the State Codes of Civil and Criminal Procedure contain any
provision that empowers this court to transfer cases. [Paras 33,
34 and 36)(587-F-H; 589-G-H; 590-A-C]
_ ... -
Union Carbide Corporation v. Union of India (1991)
4 SCC 584: 1991 (1) Suppl. SCR 251 - relied on.
E
R v. Secretary of State for Home Dept., ex p Leech
1993 (4) All ER 539; Llewelyn Evans AIR 1926 Bom
551; P.K .. Tare v. Einperor AIR 1943 Nagpur 26;
·Delcourt v. Belgium 1970 ECHR 1 - referred to.
F
1993 (4) All ER 539
AIR 1926 Bom 551
AIR 1943 Nagpur 26 .
1965 SCR 413
G 1997 (2) SCR 1186
1979 (3) SCR 169
2012 (1) SCR 779
1970 ECHR 1
H
Case Law Reference
referred to
referred to
referred to
relied on
relied on
relied on
relied on
referred to
Para 14
Para 15
Para 16
Para 17
Para 17
. Para 18
Para 19
Para20.
ANITA KUSHWAHA v. PUSHAP SUDAN
567
2012 (5) SCR 305
relied on
Para 21
A
2008 (17) SCR 85
relied on
Para 22
1978 (2) SCR 621
relied on
Para 27 .
1979 (1) SCR 392
relied on
Para27
1979 (1) SCR 512
relied on
Para 27
B
1981 (2) SCR 408
relied on
Para27
1980 (3) SCR 855
relied on
Para 27
1983 (3) SCR 508
relied on
Para27
1988 (2) Suppl. SCR 643
relied on
Para27
c
(1989) 4 sec 248
relied on
Para27
1995 (6) Suppl. SCR 827
relied on
Para27
1996 (10) Suppl. SCR 12
relied on
Para27
(1997) 1 sec 388
relied on
Para 27
D
2006 (3) Suppl. SCR 350
relied on
Para27
c2009) 9 sec 1
relied on
Para27
c2009) 1 sec 559
relied on
Para 27
W.P (Crl.) No.184 of 2014
relied on
Para27
E
2015 (6 ) SCR 1002
relied on
Para27
1979 (1) SCR 192.
relied on
Para27
1991 (1) Suppl. SCR 251
relied on
Para 27
2015 (7) SCR 814
relied on
Para JO
CIVIL/CRIMINAL ORIGINAL JURISDICTION: Transfer
F
Petition (Civil) No. 1343 of2008
WITH
T. P. (Crl.) No. 116 of201 l
T. P. (C) No. 562 of2011
G
T. P. (C) Nos. 1161, 1294, 1497 and I 573 of2012
· T. P. {C) Nos. 426, 1773, 1821 and 1845 of2013
T. P. (Crl.) No. 99 of2014
T. P. (C) No. 14 of2014.
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SUPREME COURT REPORTS
[2016] 9 S.C.R.
A
Ranjit Kumar, SG, P. S. Patwalia, ASG, Vivek K. Tankha, B. H.
Marlapalla, Sr. Advs,, Ms. Rash mi Malhotra, Ms. Su sh ma Suri. Pradeep
Kumar Mittal, Anurag Kashyap, Arunav Tiwari, Ms. Shikha Srivastva,
Ms. Mona K. Rajvanshi, Arvind Kumar, Pradeep Kumar Mathur, Mrs.
Poonam Prasad, Mrs. Laxmi Arv ind, Ashwin Yaish, Vinod Pandey, Nitin
B Kumar Thakur, Vibhakar Mishra, Shariq Ahmed, Tariq Ahmed, Sunil
Kr. Verma, Vipin Gogia, Mrs. Jaspreet Gogia, Ms. Kaveeta Wadia,
Shashank Tripathi, Sudhir Walia, Sachin Pujari, Parth Tiwari,Abhishek
Atrey, Ms. NiharikaAhluwalia, Ms. Pragya Wazir, Ms. S. Janani, Sunando
Raha, Anupam Raina, Ms. Madhu Moolchandani, Abhay Prakash Sahay,
Jamnesh Kumar, Himanshu Sehkhar, Ujjal Singh, J. P. Singh, R. C.
C Kaushik, Kunal Cheema, Ajit Wagh, Apoorv Shukla, Aditya Gaggar, Vilas
Giri, Yogesh Ahirrao, Yash Pal Dhingra, Mrs. Mona K. Rajvanshi, Sun ii
Kumar Verma, Rajinder Mathur, Shailendra Bhardwaj, Debasis Misra,
Ms. Kaveeta Wadia, C. D. Singh, Ms. Sakshi Kakkar, Venkita
Subramanian T .. R., Rahat Bansal, Anup Kumar, Venkata Krishna
0
Kundiru, Nitin Sangra, Ms. Pragya Baghel, Amo I Chitale, Asem Sawhney,
D. K. Sinha, Ms. Ranjana Narayan, Ms. Binu Tamta, Gaurav Sharma,
Sunil Fernandes, Ms. Astha Sharma, Puneeth K. G., Bimal Roy Jad,
Naresh Kumar, Manjeet Singh, Mrs. Vivekta Singh, Rajesh Srivastava,
Raghvendra Pratap Singh, Suresh Kumar, Shreekant N. Terdal, Ms.
L1,1xmi Arvind, Ashok Mathur, Rabin Majumder, Ramesh Babu M. R.,
E Advs. for the appearing parties.
The Judgment of the Court was delivered by
T. S. THAKUR, CJI 1. A three-judge bench of this Court has,
by an order dated 21" 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 Jam mu
and Kashmir while the remaining two seek transfer of criminal cases
G from the State to Courts outside that State.
H
2. The transfer petitions are opposed by the respondents, inter
a/ia, 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 fo direct transfer of civil and criminal cases
ANITA KUSHWAHA v. PUSHAP SUDAN
[T. S. THAKUR, CJI]
respectively from one State to the other, do not extend to the State of
Jammu and 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 vel'sa. 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"d
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 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 behalfofthe 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 of non-extension of the Constitution 42"d 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.
569
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SUPREME COURT REPORTS
[2016) 9 S.C.R.
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4. The Code of Civil Procedure, 1908 and so also the Code of
B
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 cohle into force on the first day of January. 1909.
[2][(3J It extends to the whole o(India except- (a) the
State ofJammu and Kashmir.· {b) the State of Nagaland
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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
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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 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)
S. To the same effect is Section I of the Code of Criminal
o Procedure, 1973 which reads as under:-
H
"Short title extent and commencement.
1. Short title extent and commencement.
(1) This Act may be called the Code of Criminal
Procedure, 1973.
ANITA KUSHWAHA v. PUSHAP SUDAN
[T. S. THAKUR, CJ!)
(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)
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, I 9n as applicable to the rest oflndia, 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 unexceptiona~le.
7. The question, however, is whether jndependent of the provisions
contained in the Codes of Civil and Criminal Procedure is there a source
of power which this Court can 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
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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
for.ensic 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 State or vice versa. It
was strenuously argued that Article 142 of the Constitution oflndia 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 includingjustice 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, ·
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are well-traversed by judicial pronouncements of this Court as well as
those of Courts in 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
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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
H
ANITA KUSHWAHA v. PUSHAP SUDAN
573
[T. S. THAKUR, CJ!)
Magna Carta lays the foundation for the basic right of access to courts
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in the following words:
'Wo freeman shall be taken or imprisoned or disseised
or outlawed or exiled or in any way ruined, nor will we
go or send agaimt him, except by the lawful judgment
of his peers or by the law of the land.
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To no man will we sell, to no one will we denv or delay
right to justice.
Moreove1; 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 lay111en,
as far as pertains to the111 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
folloFing 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.
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Art. I 0: Everyone is entitled in full equality to a fair
and public hearing by an independent and impartial
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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 which provides that each
State party to the Covenant shall undertake that every person whose
B rights or freedom as recog11ised 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.
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12. De Smith's book on Judicial Review of Administrative Action
(5•h 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
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statute"
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13. Prof. M. Cappelletti Rahel a noted jurist in his bo.ok 'Access
to Justice' (Volume I) explained the importance of acce~s 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 hy 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. Courts in England have over the centuries post Magna Carta
G developed fundamental principles of common law which are enshrined
as !he basic rights of all humans. These principles were over a period of
tiine recognised in the form of Bill ofRights and Constitutions of various '
countries which acknowledged the Roman maxim 'Ubi Jus !bi
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Remedium' i.e. every right when it is breached must be provided with a
right to a remedy. Judicial pronouncements have delved and elaborated
ANITA KUSHWAHA v. PUSHAP SUDAN .
[T. S. THAKUR, CJI]
on the concept of access to justice to include among other aspects the
State's obligation to make available to all its dtizens the means for a just
and peaceful settlement of disputes between them as to thei~ respective
legal rights. In R v. Secretary of State for Home Dept., exp Leeclt
(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 inyolved 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 communication between him and his solicitor about
contemplated legal proceedings. The court held that access to justice
575
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was a basic right which could not be denied or diluted by any kind of.
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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 fl) All ER 756) Lord
Wilberforce described it as a 'basic right'. Even in our
unwritten Constitution, it ranks as a constitutio11al right.
In Raymond v. Honey, Lord Wilbelforce 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 Ki/Iowan 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 Tight 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
imptication. "
.
.
15. Tne legal position is no different in India. Access to justice
has been recognised as a valuable right by courts hi this country long
before the commencement of the Constitution. Reference in this regard
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may be made to Re: Llewelyn Ev"ns 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 pri1ioner 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. "
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 oflndiaAct 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 Esflugb"yi v. Officer Administering tile 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 ofutmost vigour, cannot
be swept away by implication or removed by some sweeping generality.
ANITA KUSHWAHA v. PUSHAP SUDAN
[T. S. THAKUR, CJI]
577
Justice Vivian Bose, giving the leading opinion of the court explained
thatthe right to move the High Court remained intact notwithstanding
the Defence of India Act, 1939. He further held that although courts
allow a great deal oflatitude to the executive and presumptions in favour
of the liberty of the subject are weakened, those rights do not c!isappear
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 th_e 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 /Kesltav
Singli case/ (AIR 1965 SC 745) and L. Cltamlra Kumar v. U11ion
of India (1997) 3 SCC261].
18. In Hussainara Kltatoon v. State of Bi/tar (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 ImtiyazA/mwd v. Stttte of Uttttr Pradeslt & 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.