[2016] 9 S.C.R. 560

ANITA KUSHWAHA

PUSHAP SUDAN

(Transfer Petition (C) No. 1343 of2008)

JULY 19, 2016

[T.S. THAKUR, CJI, FAKKIR MOHAMED IBRAHIM

KALIFULLA, A.K. SIKRI, S.A. BOBDE AND

R. BANUMATHI, JJ.]

Constitution .of India:

Arts.32, 142 - Transfer petition - Whether Supreme Court has power to transfer a civil or cri111inal case pending in any court in the State of Jam111u and Kash111ir to a Court outside that State and vice versa - Held: The provisions of s.25, CPC and that of s.406, D . Cr.P.C. as applicable to the rest of India, cannot be invoked by any litigant seeking transfer of any case to or from the State of Jam111u and Kashmir - It is equally true that Jammu and Kashmir Code of Civil Procedure, 1977 and Jammu and Kashmir Code of Criminal Procedure, 1989 also do not have any provision empowering the Supreme Cou/"t to direct transfer 'of any case civil or criminal from E 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 - The fact that there is no such enabling provision for transfer from or to the State of Jammu and Kashmir does not detract

F 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 - If acr;:ess to justice is a facet of the right to life guaranteed under Art.21, a violation actual or threatened of that right would justify the invocation of poivers under Art.32 - Any such exercise would be legitimate, as it would prevent the violation G of the fundamental right of the citizens guaranteed under Art. 21 - Apart from that, even Art. 142 can be invoked to direct transfer of a case from one court to the other 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 iustice - The provisions of Arts. 32, 136 and 142 are, therefore, H 560

wide enough to empower Supreme Court to direct such transfer in appropriate situations - Code of Civil Procedure, 1908 - s.25 - Code of Criminal Procedure, 1973 - s.406.

Arts.14, 21 - Access tojustice - Held: ls .inc!eed a facet of right to life guaranteed under Art. 21 ~Access to justice may as well be the facet of the right guaranteed under Art. 14 which guarantees equality before law and equal protection of laws to 110t only citizens but non-citizens also - Citizens inability to access courts or any other adjudicato'ry mechanism provided for determination of rights .and obligations is bound to result in denial of the guarantee contained in Art.14 both in relation to equality before law as well as equal protection of laws.

Access tojustice - Principles of - Held: State must provide an effective adjudicatory mechanism; the mechanism so provided must /; Je reasonably accessible in terms of distance; the process of adjudication must be speedy; and the litigants access to the adjudicatory process must be affordable.

Code of Civil Procedure, 1908: s.1 - Code of the Criininal .

Procedure, 1973 - s.l - General application of CPC and Cr.P.C to the State of Jammu and Kashmir - Held: CPC and also Cr.P.C, as applicable to the rest of the country specifically exclude the application thereof to the State of Jammu and Kashmir.

Answering the reference, the ourt

HELD: 1.1. The concept of 't1ccess to .iustice' as an invaluable human right, also recognized in most constitutional democn.cies as a fundamental right, has its origin in common law as much as in the Magna Carta. The Universal Declaration of Rights drafted in the year 1948 gave recognition to two rights pertaining to 'access to justice'. To the same effect is Clause 3 of Article 2 oflnternational Covenant on Civil and PoHtical Rights, 1966 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

A develop the possibilities of judicial remedies. [Paras 9, 10 and

11)(572-G, H; 573-F; 574-A-B)

Judicial Review of Administrative Action (5'h Ed., 1995) by De Smith; Access to Justice' (Volume I) by Prof M Cappelletti Rabel - referred to.

1.2. 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 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. [Para 26)(581-E-G)

1.3. 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 E 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.

Therefore, access to justice is indeed a facet of right to life guaranteed under Article 21 of the Constitution. Access to justice may as well be the facet of the right guaranteed .under Article 1.4

F of the Constitution, which guarantees equality before law and equal protection of laws to not only citizens but non-citizens also.

This is 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 G where law is applied and justice administered. The Citizen's inability to, access courts 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 eqilal protectio!i oflaws.· Absence of any adjudicatory mechanism or the inadequacy of such

' - • •_' ' t :._ . ' . ... - . . ' . . . ' .

ANJTA KUSHWAHA v. PUSHAP SUDAN 563

mechanism 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. [Para 28)[583-A-E]

2. Four main facets that constitute the essence of access to justice are :

(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.

(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.

(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. ·

(iv) The process. of adjudication must be affordable to the disputants:

Access to justice will again be no more tban an illusi11n 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 prootes a laudable objective of providing legal aid ·

t.o nee4y litigants and obliges the State to make. access to justice H

A affordable for the less fortunate sections of the society. [Para 30)

(583-G; 584-B-C, D-G; 585-G-H; 586-A) .

3. 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 Code of Civil Procedure or B 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 c 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 D 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 E empowering courts to direct transfer from one court to other were to stand deleted from the statute, the superior courts would still be 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. [Para 32J[587-B-E]

Keshav Singh AIR 1965 SC 745 : 1965 SCR 413; L. Chandra Kumar '" Union of India (1997) 3 SCC 261:1997 (2) SCR 1186; Hussainara Khatoon v. State of Bihar (1980) 1 SCC 81 : 1979 (3) SCR 169; lmtiyaz Ahmad v. State of Uttar Pradesh & Ors. (2012) 2 SCC 688 : 2012 (1) SCR 779; Brij Mohan Lal v. Union of India and Ors. (2012) 6 SCC 502 : 2012 (5) SCR 305; Tamilnad Mercantile Bank Shareholders Welfare Association v. S.C. Sekar and Ors. (2009) 2 SCC 784 : .2008 (17) SCR 85; Maneka Gandhi '" Union of India • (1978) .1 SCC 248 : 1978 (2) SCR 621; Sun ii Batra v.

ANlTA KUSHWAHA v. PUSHAP SUDAN

Delhi Administration (1978) 4 SCC 494 : 1979 (1) SCR 392; Charles Sobhraj v. Suptd. Central Jai1 (1978) 4 ·

SCC 104 : 1979 (1) SCR 512; Khatri 11 v. State of Bihar (1981) 1 SCC 627 : 1981 (2) SCR 408; Prem Shankar Shukla v. Delhi Administration (1980). 3 SCC 526 : 1980 (3) SCR 855; Ruda/ Shah v. State of Bihar

(1983) 4 SCC 141: 1983 (3) SCR 508; Sheela Barse

v. Union of India (1988) 4 SCC 226 : 1988 (2) Suppl.

SCR 643; Parmanand Katara v. Union of India (1989) 4 SCC 248; Chameli SinJ?h v. State of U.P. (1996) 2 SCC 549 : 1995 (6) Suppl. SCR 827; Shantistar Builders

v. Narayan Khimalal Totame (1990) 1 SCC 520; M.C.

Meh{a v. Union qf India (1997) 1 SCC 388; Lata Singh v.· State of U.P. (2006) 5 SCC 475 : 2006 (3) Suppl.

SCR 350; Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1; Sukhwant Singh v; State of Punjab (2009) 7 SCC 559; Subramanian

amy v. Union qf India W.P (Crl.) No.184 of 2014; D.K. Basu 1t State of West Bengal (2015) 8 SCC 774 : 2015 (6) SCR 1002; Madhav Hayawadanrao Hoskot

v. State Qf Maharashtra (1978) 3 SCC 544 : 1979 (1) SCR 192; D.K. Basu v. State of West Bengal (2015) 8 SCC 744 : 2015 (7) SCR 814 - relied on.

4. Now if access to justice is a facet of the right to life guaranteed under Article 21 of tlie Constitution, a violation actual or threatened of that right would justify the invocaticm 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 unde.r Article 21. of the Constitution. That apart from Article 32 even Article 142 of tile Constitution can be invoked to direct transfer of a case from one court to the other. 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. There is no enabling provision as such.

A The absence of an enabling provision, however, cannot be construed as a prohibition against 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 B 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 C in the State of Jammu and Kashmir will deny the citizen his/her

rigt 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 Civii and Criminal Procedures do not extend to the State nor

0 do the State Codes of Civil and Criminal Procedure contain any provision that empowers this court to transfer cases. [Paras 33, 34 and 36)(587-F-H; 589-G-H; 590-A-C] _ ... -

Union Carbide Corporation v. Union of India (1991) 4 SCC 584: 1991 (1) Suppl. SCR 251 - relied on.

E R v. Secretary of State for Home Dept., ex p Leech 1993 (4) All ER 539; Llewelyn Evans AIR 1926 Bom 551; P.K .. Tare v. Einperor AIR 1943 Nagpur 26; Delcourt v. Belgium 1970 ECHR 1 - referred to.

F 1993 (4) All ER 539

AIR 1926 Bom 551

AIR 1943 Nagpur 26 .

1965 SCR 413

G 1997 (2) SCR 1186

1979 (3) SCR 169

2012 (1) SCR 779

1970 ECHR 1 H

Case Law Reference

referred to

referred to

referred to

relied on

relied on

relied on

relied on

referred to

Para 14

Para 15

Para 16

Para 17

Para 17

. Para 18

Para 19

Para20.

2012 (5) SCR 305 relied on Para 21 A

2008 (17) SCR 85 relied on Para 22

1978 (2) SCR 621 relied on Para 27 .

1979 (1) SCR 392 relied on Para27

1979 (1) SCR 512 relied on Para 27 B

1981 (2) SCR 408 relied on Para27

1980 (3) SCR 855 relied on Para 27

1983 (3) SCR 508 relied on Para27

1988 (2) Suppl. SCR 643 relied on Para27 c

(1989) 4 sec 248 relied on Para27

1995 (6) Suppl. SCR 827 relied on Para27

1996 (10) Suppl. SCR 12 relied on Para27

(1997) 1 sec 388 relied on Para 27 D 2006 (3) Suppl. SCR 350 relied on Para27

c2009) 9 sec 1 relied on Para27

c2009) 1 sec 559 relied on Para 27

W.P (Crl.) No.184 of 2014 relied on Para27 E

2015 (6 ) SCR 1002 relied on Para27

1979 (1) SCR 192. relied on Para27

1991 (1) Suppl. SCR 251 relied on Para 27

2015 (7) SCR 814 relied on Para JO

CIVIL/CRIMINAL ORIGINAL JURISDICTION: Transfer F

Petition (Civil) No. 1343 of2008

WITH

T. P. (Crl.) No. 116 of201 l

T. P. (C) No. 562 of2011 G

T. P. (C) Nos. 1161, 1294, 1497 and I 573 of2012 T. P. {C) Nos. 426, 1773, 1821 and 1845 of2013 T. P. (Crl.) No. 99 of2014

T. P. (C) No. 14 of2014.

A Ranjit Kumar, SG, P. S. Patwalia, ASG, Vivek K. Tankha, B. H.

Marlapalla, Sr. Advs,, Ms. Rash mi Malhotra, Ms. Su sh ma Suri. Pradeep

Kumar Mittal, Anurag Kashyap, Arunav Tiwari, Ms. Shikha Srivastva, Ms. Mona K. Rajvanshi, Arvind Kumar, Pradeep Kumar Mathur, Mrs.

Poonam Prasad, Mrs. Laxmi Arv ind, Ashwin Yaish, Vinod Pandey, Nitin B Kumar Thakur, Vibhakar Mishra, Shariq Ahmed, Tariq Ahmed, Sunil Kr. Verma, Vipin Gogia, Mrs. Jaspreet Gogia, Ms. Kaveeta Wadia, Shashank Tripathi, Sudhir Walia, Sachin Pujari, Parth Tiwari, Abhishek Atrey, Ms. NiharikaAhluwalia, Ms. Pragya Wazir, Ms. S. Janani, Sunando Raha, Anupam Raina, Ms. Madhu Moolchandani, Abhay Prakash Sahay, Jamnesh Kumar, Himanshu Sehkhar, Ujjal Singh, J. P. Singh, R. C.

C Kaushik, Kunal Cheema, Ajit Wagh, Apoorv Shukla, Aditya Gaggar, Vilas Giri, Yogesh Ahirrao, Yash Pal Dhingra, Mrs. Mona K. Rajvanshi, Sun ii Kumar Verma, Rajinder Mathur, Shailendra Bhardwaj, Debasis Misra, Ms. Kaveeta Wadia, C. D. Singh, Ms. Sakshi Kakkar, Venkita Subramanian T .. R., Rahat Bansal, Anup Kumar, Venkata Krishna

0 Kundiru, Nitin Sangra, Ms. Pragya Baghel, Amo I Chitale, Asem Sawhney, D. K. Sinha, Ms. Ranjana Narayan, Ms. Binu Tamta, Gaurav Sharma, Sunil Fernandes, Ms. Astha Sharma, Puneeth K. G., Bimal Roy Jad, Naresh Kumar, Manjeet Singh, Mrs. Vivekta Singh, Rajesh Srivastava, Raghvendra Pratap Singh, Suresh Kumar, Shreekant N. Terdal, Ms.

L1,1xmi Arvind, Ashok Mathur, Rabin Majumder, Ramesh Babu M. R., E Advs. for the appearing parties.

The Judgment of the Court was delivered by

T. S. THAKUR, CJI 1. A three-judge bench of this Court has, by an order dated 21" 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 Jam mu and Kashmir while the remaining two seek transfer of criminal cases G from the State to Courts outside that State.

2. The transfer petitions are opposed by the respondents, inter a/ia, 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 fo direct transfer of civil and criminal cases

[T. S. THAKUR, CJI]

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 vel'sa. 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 42"d 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 behalfofthe 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 42"d 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 cohle into force on the first day of January. 1909. [2][(3J It extends to the whole o(India except- (a) the State ofJammu and Kashmir.· {b) the State of Nagaland C 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 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)

S. To the same effect is Section I of the Code of Criminal o 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.

[T. S. THAKUR, CJ!)

(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)

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, I 9n as applicable to the rest oflndia, 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 unexceptionale.

7. The question, however, is whether jndependent of the provisions contained in the Codes of Civil and Criminal Procedure is there a source of power which this Court can 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 for.ensic 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 State or vice versa. It was strenuously argued that Article 142 of the Constitution oflndia 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 includingjustice 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, F are well-traversed by judicial pronouncements of this Court as well as those of Courts in 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 G 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 H

ANITA KUSHWAHA v. PUSHAP SUDAN 573

[T. S. THAKUR, CJ!)

Magna Carta lays the foundation for the basic right of access to courts A in the following words:

'Wo freeman shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send agaimt 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 denv or delay right to justice.

Moreove1; 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 lay111en, as far as pertains to the111 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 folloFing 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. I 0: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial

A 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 which provides that each

State party to the Covenant shall undertake that every person whose B rights or freedom as recog11ised 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. c

12. De Smith's book on Judicial Review of Administrative Action (5•h 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 D statute"

13. Prof. M. Cappelletti Rahel a noted jurist in his bo.ok 'Access to Justice' (Volume I) explained the importance of acces 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 hy 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.

14. Courts in England have over the centuries post Magna Carta G developed fundamental principles of common law which are enshrined as !he basic rights of all humans. These principles were over a period of tiine recognised in the form of Bill ofRights and Constitutions of various ' countries which acknowledged the Roman maxim 'Ubi Jus !bi '~

Remedium' i.e. every right when it is breached must be provided with a right to a remedy. Judicial pronouncements have delved and elaborated

[T. S. THAKUR, CJI]

on the concept of access to justice to include among other aspects the State's obligation to make available to all its dtizens the means for a just and peaceful settlement of disputes between them as to thei~ respective legal rights. In R v. Secretary of State for Home Dept., exp Leeclt (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 inyolved 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 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.

C 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 fl) All ER 756) Lord Wilberforce described it as a 'basic right'. Even in our unwritten Constitution, it ranks as a constitutio11al right.

In Raymond v. Honey, Lord Wilbelforce 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 Ki/Iowan 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 Tight 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 imptication. "

. .

15. Tne legal position is no different in India. Access to justice has been recognised as a valuable right by courts hi this country long before the commencement of the Constitution. Reference in this regard

may be made to Re: Llewelyn Ev"ns 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 pri1ioner 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. "

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 oflndiaAct 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 Esflugb"yi v. Officer Administering tile 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 ofutmost vigour, cannot be swept away by implication or removed by some sweeping generality.

[T. S. THAKUR, CJI] 577

Justice Vivian Bose, giving the leading opinion of the court explained thatthe right to move the High Court remained intact notwithstanding the Defence of India Act, 1939. He further held that although courts allow a great deal oflatitude to the executive and presumptions in favour of the liberty of the subject are weakened, those rights do not c!isappear 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 th_e 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 /Kesltav Singli case/ (AIR 1965 SC 745) and L. Cltamlra Kumar v. U11ion

of India (1997) 3 SCC261].

18. In Hussainara Kltatoon v. State of Bi/tar (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 ImtiyazA/mwd v. Stttte of Uttttr Pradeslt & 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 .

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 ofCriminal 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 oflaw 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 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 iustice delivery system and poses a threat to the rule of law.

26. It may not be out of place to highlight that access to ; ustice in an egalitarian democracy must be understood to mean qualitative access to justice as well. Access to ; ustice is, therefore, much more than improving an individuals 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 dtscloses the need to reiterate that

[T. S. THAKUR, CJI]

"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 citizens rights under the Constitution, in particular under Article 21."

20. The Court held that rule oflaw, independence of judiciary and access to justice are conceptually interwoven. The Court also referred to the International Covenan-t on Civil and Political Rights and the statute of the International Crimina!Court. It also referred to Article 47 of the Charter ofFundaipental 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 I to hold that access to justice was a valuable human and fundamental right relatable to Article 21 of the Constitution oflndia. 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 Molt"n L"I 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 sw(!ep the right tp expeditious and fair trial. Even Article 39-A of the Constitution recognises the right of citizens to equal justice and free legal aid.

To put it simply, it is the constitutional duty of the Government lo 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 Tami/natl Mercantile Bank Sflareflolders 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 ofaccess 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.

(l)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 iustice in all matters before the Courts, tribunals or other forum and the State shall take all reasonable steps to achieve that object. "

24. Insertion ofArticle 30 A in the Constitution in the following G 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 lmv decided in a fair

[T. S. THAKUR, CJI]

public hearing before an independent court or, where appropriate, another independent and impartiq/ tribunal or forum. .

(2) The right to access to Courts shall be deemed to include the right to reasonably speedy and effective ; ustice in all matters before the courts, tribunals or other fora and the State shall take all reasonable steps to achieve the said object. "

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 I ife 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 n:cognised 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 to its citizens. The Magna Carta, the Universal Declaration of Rights, the lnternatio11al Covenant on Civil and Political Rights, 1966, the ancient Roman Jurisprudential maxim of' Ubi Jus !bi 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 Gandlli v. Union of India (1978) I SCC 248, this Court declared that the right to life does not mean mere animal

A existence alone but includes every aspect that makes life meaningful and liveable. (to be checked). In Sunil Batra v. DellziAdministration

(1978) 4 SCC494 the right against solitary confinement and prison torture and custodial death was declared to be a pa~ ofright to life. In Clzarles Sobliraj v. Supld. Central Jail (1978) 4 SCC 104 the right

against bar fetters was declared to be a right protected under Article 21 of the Constitution. In Klzatri II v. State of Bilzar (1981) 1SCC627, the right to free legal aid was held to be a right covered under Article 21 of the Constitution. In Prem Slumkar Slzukla v. Dellzi Atlmi11istration (198Q) 3 sec 526 the right against handcuffing was declared to be a right under Article 21. So also in Ruda/ Sliali v. Stute of Bilwr (1983) 4 sec 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 S/zeela 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 Intlia (1989) 4 SCC 248, right to emergency, medical aid was declared to be protected under Article 21 D of the Constitution. In Cluzmeli Sillglz v. State of U.P. (1996) 2 SCC

549 and Slzantistur Builders v. Narayan Klzima/a/ Totame (1990) 1 sec 520, right to shelter, clothing, decent environment and a decent accommodation was also held to be a part of life. ln M.C. Melita v.

Union of India (1997) 1 SCC 388, right to clean environment was E held to be a right to life under Article 21. In Lata Singli v. Sllzte of U.P. (200(i) 5 sec 475, right to marriage was held to be a part of right to life under Article 21 ohhe Constitution. In Suc/1itllSrivastava v.

Cliandigarlt Administration (2009) 9 SCC 1, right to make reproductive choices was declared as right to life. While in Suk/1want F Singli v. State of Punjab (2009) 7 SCC 559 right to reputation was declared to be a facet ofrightto 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 of2014], 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

ANITA KUSHWAHA v. PUSHAP SUDAN 583

(T. S. THAKUR, CJI]

of the said rights, which already stands recognised as being a part and A parcel of the Article 21 of the Constitution oflndia.

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 ofright to life guaranteed under Article 21. We have, therefore, no hesitation in holding that access to justice is indeed a facet ofrightto life guaranteed under Artile 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 Jaw and equal protection oflaws is not limited in its application to the realm of exec.utive action that enforces the law. It is as much available in relation to proceedings before Courts and tribunal and adjudicatory fora where Jaw is applied and justice administered.

The Citizen's inability to access courts or any other adjudicatory mechanism provided for determination ofrights and obligations is bound to result in denial of the guarantee contained in Article 14 both in relation to equality before Jaw 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 Jaws from seeking redress and thereby negate the guarantee of equality before laws orequal 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;

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 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

fn 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. (ee D.K. B"su !' St(lte f West Ben1:"l (2015) 8 SCC 744.

(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. )fthe 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 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

[T. S. THAKUR, CJ!]

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 ha,_ye 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 ifthe delivery of justice to the citizen is speedy, for otherwise, the right to access to justice is no more than a hollow slogan ofno use or inspiration forthe 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 junioror 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 com1s. While the States have done their bit in terms of providing the basic adjudicatory mechanisms for disposal ofresolution of civil or criminal conflicts, access to justice remains a big question mark on account of delays in the completion of the process of adjuditation on account 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 adjudicato.ry 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 Madlwv Hayawadanrao Hoskot vs.

State Of Mallaraslltra ( 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. J.12. 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 inevitable that this is a States duty and not governments 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 paidfo1: 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 ; ustice 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 iustice 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

ANITA KUSHWAHA v. PUSHAP SUDAN 587

[T. S. THAKUR, CJI]

Service Authorities Act, 1987. Legal aid programmes have been A providing the much needed support to the poorer sections of the society in the accessingjustice 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 B where neither the Central 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 ciyil/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 wou Id still be 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 ifaccess 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 UlliOll

Carbide Corporation v. Union of btdia (1991) 4 SCC 584. One of the questions 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 comt and dispose of the same finally even when Article 139-A does not empower the court to do so. Answering the question in the affinnative, 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 litigantto seek transfer of proceedings, ifthe 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 exte/1/ 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 1101 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 C.onstitution Forty-second Amendment. That amendment proposed to invest the Supreme Court with exclusive jurisdiction to determine the constitutional 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 G ordinary statute would affect the exercise of powers un, der 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:

H "'The power under Article 142 is at an entirely different

[T. S. THAKUR, CJI]

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 lm11, 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 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 outside1he 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 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.

37. The transfer petitions shall now be listed before the regular D bench for hearing and disposal on merits keeping in view what has been observed above.

Devika Gujral Referred question answered.