IMPORTANT POINTS
Resort to the Central or State Codes of Civil and Criminal Procedures for directing transfer of cases to or from the State is ruled out.
‘Access to justice’ is a facet of right to life guaranteed under Article 21 as well as a facet of the right guaranteed under Article 14.
Facets constituting essence of ‘access to justice’ are effective mechanism, accessibility in terms of distance, Speedy process, and affordability.
Access to justice being a facet of the right to life guaranteed under Article 21 of the Constitution, a violation actual or threatened thereof would justify invocation of Supreme Court’s powers under Article 32 or 136 or 142 can be invoked for such transfer.
Ordinary statutes cannot control powers under Article 32, 136 and 142.
Absence of enabling provision cannot be construed as a prohibition.

Headnote:(a) Code of Civil Procedure, 1908 – Section 25 r/w Section 406, Code of Criminal Procedure, 1973 and Article 139-A, Constitution of India – Jammu and Kashmir Code of Civil Procedure, 1977 and the Jammu and Kashmir Code of Criminal Procedure, 1989 – “Central Codes” specifically excluding application thereof to State of Jammu and Kashmir – These provisions cannot be invoked for transfer of any case to or from the State of Jammu and Kashmir – Jammu and Kashmir Code of Civil Procedure, SVT.1977 and Jammu and Kashmir Code of Criminal Procedure SVT.1989 also not having any provision empowering Supreme Court to direct transfer of any case 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. (Para 4, 5, 6)
       (b) Constitutional law – Fundamental right – ‘Access to justice’ – Including right of a citizen to move the court – A valuable constitutional right recognised by Article 32 of the Constitution as fundamental right by itself – Relatable to Article 21 of the Constitution – Rule of law, independence of judiciary and access to justice are conceptually interwoven – Article 21 guarantees to the citizens the rights to expeditious and fair trial – An aggrieved person cannot be left without the remedy – Article 34 of the South African Constitution expressly makes ‘access to justice’ a fundamental right – Commission for Review of the Constitution recommending similar provision as Article 30A – ‘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. (Para 15, 17, 19, 20, 21, 22, 23, 24, 26)
       AIR 1965 SC 745; (1997) 3 SCC 261; (1980) 1 SCC 81; (2012) 2 SCC 688; (2012) 6 SCC 502; (2009) 2 SCC 784 – Relied upon
       AIR 1926 Bom 551; AIR 1943 Nagpur 26 – Cited with approval
       (1993 [4] All ER 539 – Referred
       (c) Constitution of India – Article 21 – Court giving expansive meaning and interpretation to the word ‘life’ appearing in Article 21 – Covering all rights considered incidental and/or integral to the right to life – Access to justice already held as being a part and parcel of the Article 21 – Held, access to justice is a facet of right to life guaranteed under Article 21 – It may as well be the facet of the right guaranteed under Article 14 – Guarantees of equality before law and equal protection of laws to not only citizens but non-citizens also. (Para 27, 28)
       (1978) 1 SCC 248; (1978) 4 SCC 494; (1978) 4 SCC 104; (1981) 1 SCC 627; (1980) 3 SCC 526; (1983) 4 SCC 141; (1988) 4 SCC 226; (1989) 4 SCC 248; (1996) 2 SCC 549; (1990) 1 SCC 520; (1997) 1 SCC 388; (2006) 5 SCC 475; (2009) 9 SCC 1; (2009) 7 SCC 559; W.P (Crl.) No.184 of 2014 – Relied upon
       (d) Constitution of India – Article 21 – Access to justice – Facets constituting essence of ‘access to justice’ – Effective mechanism, accessibility in terms of distance, Speedy process, and affordability – Delays – Poor judge population and judge case ratio – Article 39A – Legal aid programme. (Para 30, 31)
       (2015) 8 SCC 774; (1978) 3 SCC 544 – Relied upon
       (e) Code of Civil Procedure, 1908 – Section 25 r/w Section 406, Code of Criminal Procedure, 1973; and Article 32 and 142, Constitution of India – Jammu and Kashmir Code of Civil Procedure, 1977 and the Jammu and Kashmir Code of Criminal Procedure, 1989 – Central and State Codes not empowering Supreme Court to transfer cases to or from the State of Jammu and Kashmir – Nevertheless, Court can direct transfer if such a direction is essential to subserve the interest of justice – Access to justice being a facet of the right to life guaranteed under Article 21 of the Constitution, a violation actual or threatened thereof would justify invocation of Supreme Court’s powers under Article 32 – Even Article 142 can be invoked for such transfer – Ordinary statutes cannot control powers under Article 32, 136 and 142. (Para 32, 33, 34, 35)
       (1991) 4 SCC 584 – Relied upon
       (f) Interpretation of statutes – Absence of enabling provision – Cannot be construed as a prohibition – Prohibition if any, should not be prohibition simplicitor – Instantly no prohibition against transfer of cases from a Court in the State of Jammu and Kashmir to a Court outside the State or vice versa – Provisions of Articles 32, 136 and 142 wide enough to empower Supreme Court to direct such transfer in appropriate situations, notwithstanding Central Codes not extending to the State, or Central and State Codes not containing any provision empowering Supreme court to transfer cases – Referred question answered in the affirmative. (Para 36)
       Facts of the case:
       A three-judge bench has 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, 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.
       Finding of the Court:
       Supreme Court, in exercise of powers under Articles 32, 136 and 142, can transfer cases to or from the State of Jammu and Kashmir.
       Result: Referred question answered in the affirmative.

JUDGMENT :

T.S. Thakur, CJI.

1. A three-judge bench of this Court has, by an order dated 21st 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 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 42nd 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 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 of non-extension of the Constitution 42nd 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 sha