Transfer of Cases from One Court to Another Furthers Access to Justice
September 20, 2016
Transfer of Cases from One Court to Another Furthers Access to Justice
Anita Kushwaha v Pushap Sudan
Transfer Petition (C) No. 1343 Of 2008
With 12 others
Supreme Court of India
Civil/Criminal Original Jurisdiction
T.S. Thakur .C.J.I, F.Mkalifulla S.C.J, A.K. Sikri S.C.J, S.A. Bobde S.C.J & R. Banumathi S.C.J
July 19, 2016
Reported by Linda Awuor & Kakai Toili
Constitutional law – bill of rights – fundamental rights and freedoms – access to justice – whether access to justice was a fundamental right – Constitution of India, articles 14, 21 & 32; International Covenant on Civil and Political Rights, 1966, article 2 (3)
Civil practice and procedure – transfer – transfer of civil cases – transfer of civil cases to or from courts in the states of Jaumu and Kashmir – whether the Supreme Court of India had the power to transfer civil cases from or to the states of Jaumu and Kashmir –Constitution of India, articles 21, 32 & 142; Indian Code of Civil Procedure 1908, sections 1 & 25.
Criminal law - criminal procedure – transfer – transfer of criminal cases – transfer of criminal cases to or from courts in the states of Jaumu and Kashmir – whether the Supreme Court of India had the power to transfer criminal cases from or to the states of Jaumu and Kashmir – Constitution of India, articles 21, 32 & 142; Criminal Procedure Code, 1973 sections 1 & 406.
By an order dated April 21, 2015, a three-judge bench of the Court had referred the Transfer Petitions to a Constitution Bench to examine whether the Court had 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 the Court, pursuant to the reference order, eleven sought transfer of civil cases from or to the State of Jammu and Kashmir while the remaining two sought transfer of criminal cases from the State to Courts outside that State.
i) Whether the transfer of cases furthered access to justice as a fundamental right.
ii) Whether the Supreme Court of India had the power to transfer cases from or to the states of Jammu and Kashmir.
Relevant Provisions of the Law:
Constitution of India
Article 14 – Right to equality
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Article 21 – Protection of life and personal liberty.
No person shall be deprived of his life or personal liberty except according to procedure established by law.
Article 32 – Right to Constitutional Remedies.
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
Article 39 A – Equal Justice And Free Legal Aid
The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
Article 136 – Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.
Article 142 – Enforcement of decrees and orders of Supreme Court and orders as to discovery
(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or Transfer of certain cases order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order1 prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.
Civil Procedure Code 1908 (CPC)
Section 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.
(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, incedental or consequential modifications as may be specified in the notification.
Section 25 -Power of Supreme Court to transfer suits
(1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.
(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.
(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it.
(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.
(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.
Criminal Procedure Code, 1973
Section 406 – Power of Supreme Court to transfer cases and appeals.
1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.
2) The Supreme Court may act under this section only on the application of the Attorney-General of India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney-General of India or the Advocate-General of the State, be supported by affidavit or affirmation.
3) Where any application for the exercise of the powers conferred by this section is dismissed, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider appropriate In the circumstances of the case.
International Covenant on Civil and Political Rights, 1966
Article 2 (3)
Each State Party to the present Covenant undertakes:
(a)To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b)To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c)To ensure that the competent authorities shall enforce such remedies when granted.
- The Indian Code of Civil Procedure, 1908 and the Indian Code of Criminal Procedure, 1973 (hereinafter referred to as Central Codes) were applicable to the rest of the country specifically but excluded the application thereof to the State of Jammu and Kashmir. That was evident from section 1 of Code of Civil Procedure, 1908 and section 1 of the Code of Criminal Procedure, 1973, both of which dealt with commencement and extent.
- Section 25 of the Indian Code of Civil Procedure, 1908 on the power of Supreme Court to transfer suits and Section 406 of the Indian Criminal Procedure, 1973 on the power of Supreme Court to transfer cases and appeals as was applicable to the rest of India, could not have been invoked by any litigant who sought transfer of any case to or from the State of Jammu and Kashmir.
- It was equally true that Jammu and Kashmir Code of Civil Procedure, SVT.1977 and Jammu and Kashmir Code of Criminal Procedure SVT.1989 did not have any provision directing the 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 having directed transfer of cases to or from the state was, therefore, ruled out.
- The question, however, was whether independent of the provisions contained in the Indian Codes of Civil and Criminal Procedure there was a source of power which could be invoked for directing the transfer of a case from the State of Jammu and Kashmir or vice versa.
- Two distinct questions fell for consideration, the first involved examination of whether access to justice was indeed a fundamental right and if so, what was the sweep and content of that right, while the second was whether articles 32 on the right to constitutional remedies and 142 on enforcement of decrees and orders of the Supreme Court and orders as to discovery, of the Constitution of India empowered the issuance of suitable directions for transfer of cases to and from the State of Jammu & Kashmir in appropriate situations. Both aspects were well-traversed by judicial pronouncements.
- Availability of article 142 of the Constitution of India on enforcement of decrees and orders of the Supreme Court and orders as to discovery, for directing transfer of cases in situations where such power was not stricto sensu available under an ordinary statute or the Constitution had been judicially explored on several earlier occasions.
- The concept of access to justice as an invaluable human right, was recognized in most constitutional democracies as a fundamental right, had its origin in common law as much as was in the Magna Carta. The Magna Carta laid the foundation for the basic right of access to courts.
- The Universal Declaration of Rights drafted in the year 1948 gave recognition to rights pertaining to access to justice and to the same effect was clause 3 of article 2 of International Covenant on Civil and Political Rights, 1966 .
- Courts in England had over the centuries post magna carta developed fundamental principles of common law which were enshrined as the basic rights of all humans. Those 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.
- Judicial pronouncements in England had delved and elaborated on the concept of access to justice to have included 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.
- Access to justice had been recognised as a valuable right by courts of India long before the commencement of the Constitution. Decisions of the Supreme Court of India had 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.
- Juristic content and basis of access to justice as a fundamental right was not provided only by judicial pronouncements, the Commission for Review of the Constitution had recommended that access to justice be incorporated as an express fundamental rights. The recommendation had not yet led to the incorporation of the proposed article 30 A, but that did not in the least matter, for what the proposed article may have added to the constitutional guarantees already stood acknowledged as a part of the right to life under article 21 of the Indian Constitution on protection of life and personal liberty, by judicial pronouncements. The proposed incorporation of article 30 A, would have simply formalised what already stood recognised by judges and jurists alike.
- Access to justice was and had been recognised as part and parcel of right to life in India and in all civilized societies around the globe. The right was so basic and inalienable that no system of governance could possibly have ignored its significance, leave alone afford to have denied 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 had all contributed to the acceptance of access to justice as a basic and inalienable human right which all civilized societies and systems recognised and enforced.
- By a long line of decisions an expansive meaning and interpretation had been given to the word life appearing in article 21 of the Indian Constitution on protection of life and personal liberty. Given the fact that pronouncements had interpreted and understood the word life appearing in article 21 of the Constitution on a broad spectrum of rights considered incidental and integral to the right to life, there was no real reason why access to justice should have been considered to be falling outside the class and category of the said rights, which already stood recognised as being a part and parcel of the article 21 of the Constitution. If life implied not only life in the physical sense but a bundle of rights that made life worth living, there was no juristic or other basis for holding that denial of access to justice would not have affected the quality of human life so as to take access to justice out of the purview of right to life guaranteed under article 21.
- Access to justice was indeed a facet of right to life guaranteed under article 21 of the Indian Constitution. Access to justice may have as well been a facet of the right guaranteed under article 14 of the Constitution on right to equality, which guaranteed equality before law and equal protection of laws to not only citizens but also to non-citizens.
- Equality before law and equal protection of laws was not limited in its application to the realm of executive action that enforced the law. It was as much available in relation to proceedings before courts and tribunal and adjudicatory fora where law was applied and justice administered.
- The citizen’s inability to access courts or any other adjudicatory mechanism provided for determination of rights and obligations was bound to have resulted in denial of the guarantee contained in article 14 of the Indian Constitution on right to equality 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 was bound to have prevented those looking for enforcement of their right to equality before laws and equal protection of the laws from having sought redress and thereby negating the guarantee of equality before laws or equal protection of laws and reduced it to a mere teasing illusion. Access to justice could be said to be part of the guarantee contained in article 14 as well.
- The four main facets that constituted the essence of access to justice were that:
a) The state must have provided an effective adjudicatory mechanism.
b)The mechanism so provided must have been reasonably accessible in terms of distance.
c)The process of adjudication must have been speedy.
d) The litigant’s access to the adjudicatory process must have been affordable.
- One of the most fundamental requirements for having provided to the citizens access to justice was 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 could have agitated his grievance and have sought adjudication of what he may have perceived 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 was protected, the mechanism so provided must have not only been effective but must have also been just, fair and objective in its approach. The procedure which the court, tribunal or authority may have adopted for adjudication must have in itself been just and fair and in keeping with the well-recognized principles of natural justice.
- The mechanism must have been conveniently accessible in terms of distance. The forum or mechanism so provided must have, having regard to the hierarchy of courts or tribunals, been reasonably accessible in terms of distance for access to justice since so much depended upon the ability of the litigant to have placed his or her grievance effectively before the court or tribunal or a competent authority to have granted such a relief.
- The process of adjudication must have been speedy. Access to justice as a constitutional value would have been a mere illusion if justice had not been speedy. Justice delayed, it was famously said, was justice denied. If the process of administration of justice was so time consuming, laborious, indolent and frustrating for those who sought justice that it dissuaded or deterred them from even considering resort to that process as an option, it would have been tantamount to denial of not only access to justice but justice itself.
- There was 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. Civil disputes could at times have had an equally, if not, more severe impact on a citizen’s life or the quality of it. Access to Justice would therefore have been a constitutional value of any significance and utility only if the delivery of justice to the citizen was speedy, for otherwise, the right to access to justice was no more than a hollow slogan of no use or inspiration for the citizen.
- The increase in literacy, awareness, prosperity and proliferation of laws had made the process of adjudication slow and time consuming primarily on account of the over worked and under staffed judicial system, which was crying for creation of additional courts with requisite human resources and infrastructure to have effectively dealt with the ever increasing number of cases that were being filed in the courts and mounted backlog of over thirty million cases in the subordinate courts. While the States had done their bit in terms of providing the basic adjudicatory mechanisms for disposal of resolution of civil or criminal conflicts, access to justice remained a big question mark on account of delays in the completion of the process of adjudication on account of poor judge population and judge case ratio in comparison to other countries.
- The process of adjudication must have been affordable to the disputants. Access to justice would have been no more than an illusion if the adjudicatory mechanism provided was so expensive as to have deterred a disputant from taking resort to the same. Article 39-A of the Indian Constitution on equal justice and free legal aid, promoted a laudable objective of having provided legal aid to needy litigants and obliged the state to make access to justice affordable for the less fortunate sections of the society.
- Affordability of access to justice had been, to an extent, taken care of by the state sponsored legal aid programmes under the Legal Service Authorities Act, 1987. Legal aid programmes had been providing the much needed support to the poorer sections of the society in the accessing justice in Courts.
- The need for transfer of cases from one court to the other often arose in several situations which were suitably addressed by the courts competent to direct transfers in exercise of powers that were 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 figured as the main reason for the courts to have directed such transfers. What was significant was that while in the rest of India, the courts dealt with applications for transfer of civil or criminal cases under the provisions of the CPC and the Cr.P.C, the fact that there was no such enabling provision for transfer from or to the State of Jammu and Kashmir did not detract from the power of a superior court to have directed such transfer if it was of the opinion that such a direction was essential to have sub served the interest of justice.
- If the provision that empowered courts to direct transfer from one court to another were to stand deleted from the Code of Civil Procedure or the Code of Criminal Procedure, the superior courts would still have been competent to have directed such transfer in appropriate cases so long as such courts were satisfied that denial of such a transfer would have resulted in violation of the right to access to justice to a litigant in a given fact situation
- If access to justice was a facet of the right to life guaranteed under article 21 of the Indian Constitution on protection of life and personal liberty, a violation actual or threatened of that right would have justified the invocation of the powers under article 32 of the Constitution on right to constitutional remedies.
- Exercise of the power under article 21 of the Indian Constitution on protection of life and personal liberty, could have taken the form of a direction for transfer of a case from one court to the other to meet situations where the statutory provisions did not provide for such transfers. Any such exercise would have been legitimate, as it would have prevented the violation of the fundamental right of the citizens guaranteed under article 21 of the Constitution.
- Article 142 of the Indian Constitution on the enforcement of decrees and orders of Supreme Court and orders as to discovery, could have been invoked to direct transfer of a case from one court to the other. Article 139-A on equal justice and free legal aid, was not intended to nor did it operate to affect the wide powers available to the Court under articles 136 on special leave to appeal by the Supreme Court and 142 of the Constitution.
- There was no prohibition against use of power under article 142 of the Indian Constitution on the enforcement of decrees and orders of Supreme Court and orders as to discovery, to direct transfer of cases from a court in the State of Jammu and Kashmir to a court outside the state or vice versa.
- Though there was no enabling provision, the absence thereof could not be construed as a prohibition against transfer of cases to or from the State of Jammu and Kashmir. At any rate, a prohibition simplicitor was not enough. What was equally important was to see whether there was any fundamental principle of public policy underlying any such prohibition. No such prohibition nor any public policy could have been seen in the cases, much less a public policy based on any fundamental principle.
- The extraordinary power that was available under article 142 of the Indian Constitution on the enforcement of decrees and orders of Supreme Court and orders as to discovery, could have been usefully invoked in a situation where the denial of an order of transfer from or to the Court in the State of Jammu and Kashmir would have denied the citizen his or her right of access to justice.
- The provisions of articles 32 on the Right to Constitutional Remedies, 136 on Special leave to appeal by the Supreme Court and 142 on the Enforcement of decrees and orders of Supreme Court and orders as to discovery, were therefore, wide enough to direct such transfer in appropriate situations, no matter that the Central Code of Civil and Criminal Procedures did not extend to the State nor did the State Codes of Civil and Criminal Procedure contain any provision that empowered the court to transfer cases.
Petition allowed, Transfer petitions to be listed before the regular bench for hearing and disposal on merits.
Relevance to Kenyan Position:
The Constitution of Kenya, 2010 under article 48 provides that the state shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.
Kenyan Courts have handled various cases touching on access to justice in considering whether to transfer cases, for instance in Mutia Muindu t/a Mutibra Auctioneers v CFC Stanbic Bank Ltd Garnishee & another, Misc App Cause No. 2 Of 2015 The Employment and Labour Relations Court found that no good cause had been shown by the Applicant as to why the suit would be transferred to Nairobi. The Court went on to hold that transferring this file to Nairobi would not only have delayed the determination of the dispute but it was also very expensive for the respondents. The Court further held that decentralization of the Court was meant to encourage faster disposal of cases and access to justice by bringing service close to people and in order to mitigate on costs of litigation and that transferring the case to Nairobi would militate against the said constitutional obligation to faster disposal of cases and access to justice.
In George Mwongera Mwendameru v Loise Gakii, Miscellaneous Application No 70 of 2015, the High Court held that as a superior court, it had the power to transfer causes from one subordinate court to another for hearing and disposal. The Court went on to hold that the power served an important purpose in law: to attain the ends of and facilitate access to justice. That was why the Court could invoke and exercise the power suo moto.
In Abraham Mwangi Wamigwi v Simon Mbiriri Wanjiku & another  eKLR the Court held that where a suit was instituted before a court having no jurisdiction, such a suit could not have been transferred to a court where it ought to have been properly instituted. The Court stated that the reason was that a suit filed in a court without jurisdiction was a nullity in law and whatever was a nullity in law was in the eyes of the law nothing and that the Court could not have purported to transfer nothing and mould it into something through a procedure known as transfer. The Court further stated that courts could only transfer a cause whose existence was recognized by law.
This case is important to the Kenyan situation as it will go a long way in assisting the Kenyan Courts in handling cases dealing with transfer of cases and access to justice.