TaxTMI 
TaxTMI 
2016 (7) TMI 1684
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.....P. Singh, R.C. Kaushik, Kunal Cheema, Ajit Wagh, Apoorv Shukla, Aditya Gaggar, Vilas Giri, Yogesh K. Ahirrao, Yash Pal Dhingra, Sunil Kumar Verma, Rajinder Mathur, Shailendra Bhardwaj, Debasis Misra, C.D. Singh, Sakshi Kakkar, Venkita Subramoniam T.R., Rahat Bansal, Anup Kumar, Venkatakrishna Kunduru, Nitin Sangra, Pragya Baghel, Amol Chitale, Asem Sawhney, Dharmendra Kumar Sinha, Ranjana Narayan, Binu Tamta, Gaurav Sharma, Sunil Fernandes, Astha Sharma, Puneeth K.G., Bimal Roy Jad, Naresh Kumar, Manjit Singh, Vivekta Singh, Rajesh Srivastava, Raghvendra Pratap Singh, Suresh Kumar, Shreekant N. Terdal, Ashok Mathur, Rabin Majumder and Ramesh Babu M.R., Advs. JUDGMENT T.S. Thakur, C.J.I. 1. A three-judge bench of this Court has, by an order dated 21st April, 2015, referred these Transfer Petitions to a Constitution Bench to examine whether this Court has the power to transfer a civil or criminal case pending in any Court in the State of Jammu and Kashmir to a Court outside that State and vice versa. Out of thirteen Transfer Petitions placed before us, pursuant to the reference order, eleven seek transfer of civil cases from or to the State of Jammu and Kashmir while the re....
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....e 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 139A to the State of Jammu and Kashmir by reason of non-extension of the Constitution 42nd Amendment Act to that State does not constitute a disability, leave alone, a prohibition against the exercise of the power of transfer if such power could otherwise be traced to any other source within constitutional framework. 4. The Code of Civil Procedure, 1908 and so also the Code of Criminal Procedure, 1973 (hereinafter referred to as "Central Codes") as applicable to the rest of the country specifically exclude the application thereof to the State of Jammu and Kashmir. This is evident from Section 1 of Code of Civil Procedure, 1908 which deals with short title, commencement and extent reads: 1. Short title, commencement and extent- (1) This Act may be cited as the Code of Civil Procedure, 1908. (2) It shall come into force on the first day of January, 1909. [2][(3) It extends to the whole of India exc....
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....ns of Section 25 of the Code of Civil Procedure, 1908 and that of Section 406 of the Criminal Procedure, 1973 as applicable to the rest of India, cannot be invoked by any litigant seeking transfer of any case to or from the State of Jammu and Kashmir. It is equally true that Jammu and Kashmir Code of Civil Procedure, SVT. 1977 and Jammu and Kashmir Code of Criminal Procedure SVT. 1989 also do not have any provision empowering this Court to direct transfer of any case civil or criminal from any Court in the State to a Court outside that State or vice versa. Resort to the Central or State Codes of Civil and Criminal Procedures for directing transfer of cases to or from the State is, therefore, ruled out. To that extent, therefore, the contentions urged on behalf of the Respondents are well-founded and legally unexceptionable. 7. The question, however, is whether independent of the provisions contained in the Codes of Civil and Criminal Procedure is there a source of power which this Court can 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 Crimina....
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.... available under an ordinary statute or the Constitution has also been judicially explored by this Court on several earlier occasions. We may deal with the said two aspects ad seriatim. 9. The concept of 'access to justice' as an invaluable human right, also recognized in most constitutional democracies as a fundamental right, has its origin in common law as much as in the Magna Carta. The Magna Carta lays the foundation for the basic right of access to courts in the following words: No freeman shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land. To no man will we sell, to no one will we deny or delay right to justice. Moreover, all those aforesaid customs and liberties, the observance of which we have granted in our kingdom as far as pertains to us towards our men, shall be observed by all our kingdom, as well clergy as laymen, as far as pertains to them towards their men. Wherefore, it is our will, and we firmly enjoin, that the English Church be free, and the men in our kingdom have an hold all t....
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....es mechanisms for their effective protection. Such protection, moreover, is best assured by a workable remedy within the framework of the judicial system. Effective access to justice can thus be seen as the most basic requirement-the most 'basic human right' - of a system which purports to guarantee legal right. 14. Courts in England have over the centuries post Magna Carta developed fundamental principles of common law which are enshrined as the basic rights of all humans. These principles were over a period of time recognised in the form of Bill of Rights and Constitutions of various countries which acknowledged the Roman maxim 'Ubi Jus Ibi Remedium' i.e. every right when it is breached must be provided with a right to a remedy. Judicial pronouncements have delved and elaborated on the concept of access to justice to include among other aspects the State's obligation to make available to all its citizens the means for a just and peaceful settlement of disputes between them as to their respective legal rights. In R. v. Secretary of State for Home Dept., ex p Leech (1993 [4] All ER 539) Steyn LJ was dealing with a prisoner who complained that correspondence w....
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....ice custody. The High Court of Bombay, while referring to Section 340 of the Code of Criminal Procedure, 1898, held that the right under that provision implied that the prisoner should have a reasonable opportunity, if in custody, of getting into communication with his legal adviser for the purposes of preparing his defence. Madgavkar, J., comprising the Bench added that: ....if the ends of justice is justice and the spirit of justice is fairness, then each side should have equal opportunity to prepare its own case and to lay its evidence fully, freely and fairly before the Court. This necessarily involves preparation. Such preparation is far more effective from the point of view of justice, if it is made with the aid of skilled legal advice-advice so valuable that in the gravest of criminal trials, when life or death hangs in the balance, the very state which undertakes the prosecution of the prisoner, also provides him, if poor, with such legal assistance. 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 bein....
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....cit in the guarantee of Article 21. 19. In Imtiyaz Ahmad v. State of Uttar Pradesh and 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 Constit....
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.... 20. The Court held that Rule of law, independence of judiciary and access to justice are conceptually interwoven. The Court also referred to the International Covenant on Civil and Political Rights and the statute of the International Criminal Court. It also referred to Article 47 of the Charter of Fundamental Rights of European Union, 2007 and European Convention on Human Rights and Fundamental Freedom, 1950. Reliance was placed upon the European Court of Human Rights decision in Delcourt v. Belgium 1970 ECHR 1 to hold that access to justice was a valuable human and fundamental right relatable to Article 21 of the Constitution of India. Having said that, this Court issued directions for better maintenance of the Rule of Law and better administration of Justice by the High Courts. It also directed the Law Commission of India to undertake a study and submit its recommendations in relation to measures that need to be taken by creation of additional courts and other allied matters including rational and scientific methods for elimination of arrears to help reduce delay and speedy clearance of the backlog of cases. 21. In Brij Mohan Lal v. Union of India and Ors. (2012) 6 SCC 50....
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....ir public hearing before an independent court or, where appropriate, another independent and impartial tribunal or forum. (2) The right to access to Courts shall be deemed to include the right to reasonably speedy and effective justice in all matters before the courts, tribunals or other fora and the State shall take all reasonable steps to achieve the said object. 25. The recommendation has not yet led to the incorporation of the proposed Article 30A, but, that does not in the least matter, for what the proposed Article may have added to the constitutional guarantees already stands acknowledged as a part of the right to life Under Article 21 of the Constitution by judicial pronouncements of this Court. The proposed incorporation of Article 30A, 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 C....
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....Shantistar Builders v. Narayan Khimalal Totame (1990) 1 SCC 520, right to shelter, clothing, decent environment and a decent accommodation was also held to be a part of life. In M.C. Mehta v. Union of India (1997) 1 SCC 388, right to clean environment was held to be a right to life Under Article 21. In Lata Singh v. State of U.P. (2006) 5 SCC 475, right to marriage was held to be a part of right to life Under Article 21 of the Constitution. In Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1, right to make reproductive choices was declared as right to life. While in Sukhwant Singh v. State of Punjab (2009) 7 SCC 559 right to reputation was declared to be a facet of right to life guaranteed Under Article 21. In the recent Constitution Bench judgment decision of this Court in Subramanian Swamy v. Union of India [W.P. (Crl.) No. 184 of 2014], this Court held reputation to be an inherent and inseparable component of Article 21. 28. Given the fact that pronouncements mentioned above have interpreted and understood the word "life" appearing in Article 21 of the Constitution on a broad spectrum of rights considered incidental and/or integral to the right to life, th....
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.... ii) The mechanism so provided must be reasonably accessible in terms of distance; iii) The process of adjudication must be speedy; and iv) The litigant's access to the adjudicatory process must be affordable. (i) The need for adjudicatory mechanism: One of the most fundamental requirements for providing to the citizens access to justice is to set-up an adjudicatory mechanism whether described as a Court, Tribunal, Commission or Authority or called by any other name whatsoever, where a citizen can agitate his grievance and seek adjudication of what he may perceive as a breach of his right by another citizen or by the State or any one of its instrumentalities. In order that the right of a citizen to access justice is protected, the mechanism so provided must not only be effective but must also be just, fair and objective in its approach. So also the procedure which the court, Tribunal or Authority may adopt for adjudication, must, in itself be just and fair 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 ....
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.... which is crying for creation of additional courts with requisite human resources and infrastructure to effectively deal with an ever increasing number of cases being filed in the courts and mounting backlog of over thirty million cases in the subordinate courts. While the States have done their bit in terms of providing the basic adjudicatory mechanisms for disposal of resolution of civil or criminal conflicts, access to justice remains a big question mark on account of delays in the completion of the process of adjudication on account of poor judge population and judge case ratio in comparison to other countries. (iv) The process of adjudication must be affordable to the disputants: Access to justice will again be no more than an illusion if the adjudicatory mechanism provided is so expensive as to deter a disputant from taking resort to the same. Article 39A of the Constitution promotes a laudable objective of providing legal aid to needy litigants and obliges the State to make access to justice affordable for the less fortunate Sections of the society. Legal aid to the needy has been recognized as one of the facets of access to justice in Madhav Hayawadanrao H....
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....o 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 Code of Civil Procedure and the Code of Criminal Procedure the fact that there is no such enabling provision for transfer from or to the State of Jammu and Kashmir does not detract from the power of a superior court to direct such transfer, if it is of the opinion that such a direction is essential to subserve the interest of justice. In other words, even if the provision empowering courts to direct transfer from one court to other were to stand deleted from the statute, the superior courts would still be competent to direct such transfer in appropriate cases so long as such courts are satisfied that denial of such a transfer would result in violation of the right to access to justice to a litigant in a given fact situation. 33. Now if access to justice is a facet of the right to life guaranteed Under Article 21 of the Con....
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.... transfer of proceedings if the conditions envisaged in that Article are satisfied. Article 139A was not intended, nor does it operate, to whittle down the existing wide powers under Articles 136 and 142 of the Constitution. 35. Dealing with the question whether a provision contained in an ordinary statute would affect the exercise of powers Under Article 142 of the Constitution, this Court held, that the constitutional power Under Article 142 was at a different level altogether and that an ordinary statute could not control the exercise of that power. Speaking for the majority, Venkatachaliah J., as His Lordship then was, observed: The power Under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers Under Article 142. Such prohibitions or limitations in the statutes might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the court on which conferment or power-limited in some appropriate way-is contemplated. The limitations may not neces....