Supreme Court asks if civil cases can be transferred out of Jammu-Kashmir

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New Delhi: Can civil cases be transferred out of Jammu and Kashmir courts to other states? That’s a question the Supreme Court is considering at present.

By an order dated 21 April 2015, a three-judge bench of the apex court said that this question had to be heard by a constitution bench of five judges.

On Monday, a bench comprising chief justice T.S. Thakur, justices F.M.I. Kalifulla, A.K. Sikri, S.A. Bobde and R. Banumathi heard the case, which arises out of the special status granted to Jammu and Kashmir under the Indian constitution.

Solicitor general Ranjit Kumar said that the court would have the power to transfer cases irrespective of special laws existing in the state. Jammu and Kashmir has its own constitution, civil procedure code and penal code.

Since different laws apply in the state, one question that came up during the course of hearing was applicability of these laws if the cases were transferred outside.

In other words, how would, for instance, the Allahabad high court apply provisions of the J&K civil procedure code when it wasn’t applicable there.

CJI Thakur observed that this issue could be resolved. “When we transfer the case, jurisdiction (to the court) is conferred by way of that transfer,” he said.

Introducing the issue of access to justice, Thakur observed that it could be grounds for the Supreme Court to intervene. “What about a matrimonial dispute, if you are before a court which is biased? If you’re unable to access justice due to locational disadvantage, then fundamental right to justice under Article 32 (of the Indian constitution) is violated,” he added. In such a situation, the court could give a decision under its powers to do complete justice, which comes from Article 142 of the constitution.

Ranjit Kumar responded in the same vein saying that the apex court’s rights cannot be fettered by J&K’s laws.

Article 32 invokes the apex court’s writ jurisdiction to remedy violation of fundamental rights, like right to equality, life and liberty and freedoms.

“The power under Article 142 cannot be used as a routine measure. It has to be shown that a great injustice will be caused if the power is not exercised,” said Alok Prasanna Kumar, senior resident fellow at Vidhi Centre for Legal Policy, a think tank.

Interestingly, the provision giving courts the power to transfer cases based on the Civil Procedure Code (CPC) 1908 (applicable to the rest of India) stands deleted in the J&K CPC.

In the J&K adaptation order of the Indian Constitution of 1954, Article 139A which grants a similar constitutional power to the Supreme Court has also been omitted.

The apex court was hearing a bunch of transfer petitions, many of which were matrimonial disputes. The hearings will continue on 12 February.