New Delhi, July 19: In a landmark verdict the Supreme Court on Tuesday ruled that it has the power to transfer a case out of Jammu and Kashmir. A Bench headed by Chief Justice TS Thakur held that right to access justice is a fundamental right while also adding that it is a part of right to life.
The Bench further went on to state that it is the fundamental rights of citizens that gives the courts the power to transfer cases from one state to another.
The case being heard by the Bench pertained to whether cases could be transferred out of Jammu and Kashmir as the state enjoyed special status.
The right to transfer cases
In a divorce case, the plea of a separated woman for the transfer of her case from Jammu and Kashmir to Ludhiana was opposed. It was contended that she could not seek a transfer of the case from Jammu.
The advocate argued that the marriage had taken place in Jammu and hence the case ought to be fought under the state laws.
He also contended that the case would be fought under the laws governing Jammu and Kashmir. "No other state or national law can be applicable as J&K enjoyed special status," it was further contended.
The case had gone up before several Benches, which had initially held that since Jammu and Kashmir had its own constitution, separate criminal and civil laws; the case cannot be transferred out of the state. The Benches then referred to the matter to a larger bench of the Supreme Court.
Before the constitutional bench, the government of India contended that the Supreme Court did have the powers to transfer cases in the trial courts of Jammu and Kashmir despite the state enjoying special status.
The Supreme Court has an extraordinary power under Article 142 which enables it to pass any order to ensure complete justice, the government had contended.