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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

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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

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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

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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 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

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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

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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

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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 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

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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)

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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

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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

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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

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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.

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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

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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 (5th 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.

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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

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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:

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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.”

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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

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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].  

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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

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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

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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

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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

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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.

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(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.”

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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

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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

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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

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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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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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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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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

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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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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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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

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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

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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

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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

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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

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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

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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

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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

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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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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

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