news details |
|
|
| 5-judge bench reserves judgement on Apex Court's powers to transfer cases out of J&K | | | Early Times Report
Jammu, Feb 22 (JNF): The 5-judge constitution bench of Supreme Court headed by Chief Justice of India T S Thakur and comprising of Justice A K Sikri, Justice F Ibrahim Kalifulla, Justice S A Bobde and Justice E Bhanumathi has reserved judgment on the point whether SC can transfer cases, civil as well as criminal, out of J&K and vice versa.
This case has direct reference to the special status of J&K and Article 370 of the Constitution of India and relation of the state with Union of India. The marathon arguments were advanced by several lawyers from both sides and Solicitor General Ranjit Kumar on Friday, the last day of hearing. The counsel, who hails from Jammu, appeared for one Nakul Mahajan who has filed a divorce petition in the matrimonial court in Jammu against his estranged wife Bhavika Bharti who has filed a transfer petition in the Apex Court, seeking transfer of the case from Jammu to Delhi.
There are several other cases wherein the parties have filed Transfer Petitions, seeking transfer of their cases from J&K to elsewhere in the country.
The counsel submitted before the constitution bench that J&K could not be compared to other states of the Union of India as it is the only state which enjoys a special status in the country. It has its own constitution, unlike other states; it has its own CPC, CrPC, Penal Code called Ranbir Penal Code and almost all other laws. He said that the state legislature had a term of 6 years while in rest of country, the term of legislature is 5 years; state has its own flag, emblem, official language and above all the Constitution of India in toto is not application to the state. Even 24 seats are kept vacant for the J&K areas in occupation of Pakistan and only elections to 87 seats are held.
He explained that the state had its special status due to historical events and submitted its detailed history from 1846 when it was purchased by Maharaja Gulab Singh vide Amritsar Treaty.
He submitted that prior to 1947, J&K was not a part of the British India but was a princely state ruled by the Dogra Rulers and in 1920 Maharaja Partap Singh brought in the Civil Procedure Code and in 1933, his successor Maharaja Hari Singh brought the Criminal Procedure Code.
Since J&K was a different state, therefore like the Indian CPC and CrPC, there was no power to transfer cases like section 25 and 406 of CPC and CrPC permitting transfer powers from one state to another either to the Governor General or the Privy Council and submitted before the constitution bench that in 1947 when British declared India and Pakistan as two Independent countries, at the same time princely states like J&K also got independence. Now, since J&K has adopted its own constitution and decided its fate to join India and to make J&K as an integral part of India but retaining its own autonomy had a unique and special status in India governed by Article 370 of the constitution. Though the chapter of Fundamental Rights including Article 32 of the Constitution of India and Article 142 applies to the state, it was only in 1954 when the President by the Constitution Order 1954 with the concurrence of the State government extended the Appeal powers of SC. In the first bench of SC which was held at Srinagar in 1954 under then Chief Justice of India, Justice Mehar Chand Mahajan, 18 appeals were decided which by then were decided by the Board of Judicial Advisors.
Till then the Supreme Court never exercised jurisdiction over J&K even by Article 32 of the Constitution of India, he submitted.
With the extension of chapter V - Articles 136, 142 over J&K, SC's powers of Appeals, Criminal and Civil and Special Leave Petition were extended to the state, but never the powers under Article 139 A, dealing with the transfer of cases from one High Court to another by SC were extended to the State of J&K. He submitted that section 25 CPC and 406 CrPC were never amended even till now by the legislature or by Constitutional Amended Order issued by President of India, thus making it clear that there was a deliberate commission of the said powers. He said that Article 32 can only be an exception where Fundamental Rights are violated and not a matter of rule, where ordinarily cases are transferred on the basis of general convenience. He said 226 and 32 are extraordinary powers and to be used sparingly and not for the convenience of the parties and for convenience there is separate section of Transfer of cases, which cannot be pressed for J&K. He submitted that cases under Article 32 or for access of justice or fair justice can be transferred in extra ordinary situations but not in ordinary situations like these. He also submitted the principle of "what cannot be done directly cannot be done indirectly", therefore he opposed the plea of transfer of cases. The Solicitor General of India argued and submitted that SC could exercise powers of transfer of cases under Article 32 and 142 of the Constitution India.
Sunil Fernandas, standing counsel for J&K, earlier opposed the transfer of cases but said that transfers could be made under Article 32 and 142 but in deserving cases. The bench, after hearing the marathon arguments for several days, reserved its judgment.
|
|
|
|
|
|
|
|
|
|
|
|
|
| |
| |
|
|
|
|
 |
|
|
|
|
STOCK UPDATE |
|
|
 |
| BSE
Sensex |
 |
| NSE
Nifty |
|
|
| |
CRICKET UPDATE |
|
|
|
|
| |
| |
|
|
| |
|
|
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
