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Mainstream, VOL LIV No 37 New Delhi September 3, 2016

Let Article 370 of Indian Constitution (on Jammu and Kashmir) Not be Weakened

Monday 5 September 2016, by Rajindar Sachar

The Supreme Court of India, notwithstanding some controversial decisions in the matter of constitutional interpretation, has by far and large contributed to upholding the rights and privileges of the States and individuals.

But with a decision Ajay Kumar Pandey versus State of J&K and Anr. decided by the Constitution Bench on July 19, 2016 there has arisen the apprehension of interfering with the autonomy of J&K, guaranteed under Article 370 of the Constitution of India.

The Constitution Bench has decided that the Supreme 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. It was common case that the provisions of Section 25 of the Code of Civil Procedure and Section 406 of the Code of Criminal Procedure, which empower the Supreme Court to direct transfer of civil and criminal cases respectively from one State to the other, do not extend to the State of Jammu and Kashmir and cannot, therefore, be invoked to direct any such transfer. It was also common 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 viceversa. 

It was common ground that the provisions of Article 139-A of the Constitution which empowers the Supreme Court to transfer a case pending before one High Court to itself or to another High Court also has no application to the cases at hand as the Constitution 42nd Amendment Act, 1977, which inserted the said provision, itself has no application to the State of Jammu and Kashmir.

Thus while accepting that 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., still the Court notwithstanding these formulations went on to answer the question whether independent of all these provisions contained in the Codes of Civil and Criminal Procedure there is still a source of power which the Supreme Court can invoke for directing transfer of a case from the State of Jammu and Kashmir or vice versa. The Court has held that it has such a power invoking the principle of “access to justice” being a fundamental right and secondly the powers given under Article 142 of the Constitution. The court relied on the principle of our law that every Citizen has a right of unimpeded access to a court and referred to

Raymondv. Honey 1983 AC 1 (1982 [1] All ER 756)

where Lord Wilberforce described it as a ‘basic right’. But with respect, the attention of the Supreme Court was not brought to the specific observations of Lord Wilberforce and its affirmation in this very case; emphasising the exception that “a citizen’s right to unimpeded access can only be taken away by express enactment... and we accept that such rights can as a matter of legal principle be taken away by necessary implication”. Here in the present case the provisions mentioned above specifically negative the right of a litigant to have a case transferred out of J&K, but still the Court has held otherwise.

The Supreme Court then dealt with the question, namely, whether Article 142 of our Constitution empowers the Supreme Court to direct transfer in a situation 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 Court thereafter concluded that the powers under Article 142 are wide enough to empower the Supreme Court to direct such a transfer in appropriate situations, no matter whether the Central Code of Civil and Criminal Procedures do not extend to the State nor do the J&K State Codes of Civil and Criminal Procedure contain any provision that empowers this Court to transfer cases. It is unfortunate that the attention of the Court was not drawn to a seven-judge Bench case A.R. Antulay v. R.S. Nayak 1998 (2) SCC 602 where the Court held: “Thirdly, however wide and plenary the language of the article, the directions given by the court should not be inconsistent with, repugnant to or in violation of the specific provisions of any statute. If the provisions of the1952 Act read with Article 139-A and Section 406-407 of the CrPC do not permit the transfer of the case from a Special Judge to the High Court, that effect cannot be achieved indirectly.” 

It is also unfortunate that the attention of the Supreme Court was also not drawn to an earlier five-judge judgment of the Supreme Court (1998) wherein the Court said: “Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly,...........that the Court will take note of the express provisions of any substantive statutory law and regulate the exercise of its power and discretion accordingly. It must be remembered that wider the amplitude of its power under Article 142, the greater is the need of care for this Court to see that the power is used with restraint without pushing back the limits of the Constitution so as to function within the bounds of its own jurisdiction.”

More serious than the concern mentioned above, this judgment has in an indirect manner nullified the mandatory provision of Article 370 of the Constitution. The J&K Legislature has specifically provided that the Court will have no such power to transfer cases from J&K Courts to Courts outside the State. In such a situation to invoke the powers of Article 142 to pass orders contrary to the J&K legislation is a serious breach of Article 370 having grave consequences. I hope the Union of India and State of J & K will seek review of this judgment to avoid serious constitutional and political consequences, so as to assure the people of J&K that there will be no weakening of their autonomy.

The author, a retired Chief Justice of the Delhi High Court, was the Chairperson of the Prime Minister’s high-level Committee on the Status of Muslims and the UN Special Rapporteur on Housing. A former President of the People’s Union for Civil Liberties (PUCL), he is a tireless champion of human rights. He can be contacted at e-mail: rsachar1@vsnl.net/rsachar23 @bol.net.in