Holding that the geographical boundaries drawn by the Executive cannot limit the human right of access to justice, the Supreme Court, in a historic judgment, held that the highest court of the land has the power to transfer civil and criminal cases, including matrimonial disputes, out and into Jammu and Kashmir where central laws like Civil Procedure Code and Criminal Procedure Code do not apply.
In a cause for cheer to the Valley State which has seen violent agitations, a Constitution Bench led by Chief Justice T.S. Thakur held that justice should be equally accessible to all and the Supreme Court is empowered to use its extraordinary powers to attain this purpose for the common people of J&K.
“Equality before and equal protection of laws is not limited to the realm of executive action that enforces the law,” Chief Justice Thakur wrote in the judgment for the Bench.
“An aggrieved person cannot be left without a remedy and that access to justice is a human right and in certain situations even a fundamental right... Access to justice is indeed a facet of right to life guaranteed under Article 21 of the Constitution,” the apex court observed.
Absence of any adjudicatory mechanism or the inadequacy of such mechanism should not stifle the right of a citizen in Jammu and Kashmir to attain justice. If so, the guarantee before laws or equal protection of laws would be reduced to a “mere teasing illusion”, the court held.
The five-judge Bench, also comprising Justices F.M.I. Kalifulla, A.K. Sikri, S.A.Bobde and R. Banumathi, rejected the contention of the State that the court cannot interfere as neither Section 25 of the CPC nor Section 406 of the Code of Criminal Procedure, which empowers the apex court to transfer cases from one State to another, is applicable there. Neither do local laws of Jammu and Kashmir contain provisions allowing the Supreme Court to transfer cases out of Kashmir.
Undeterred, the Bench banked on its extraordinary power under Article 142 of the Constitution to do justice.
It observed that Article 142 can be invoked in a situation when “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”.
