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| J&K: Apex court's landmark judgment on its jurisdiction | | Slap on the face of separatists | | Early Times Report
JAMMU, July 20: At a time when Kashmiri separatists were fighting for the communal partition of India and batting for the Pakistani sinister game plan and the so-called mainstream Kashmiri leaders such as NC working president Omar Abdullah were creating additional difficulties for Chief Minister Mehbooba Mufti by issuing pro-separatist and other controversial statements, the Supreme Court of India delivered a historic judgment on J&K. It said it had the right to transfer civil and criminal cases outside the state to other courts in different parts of the country.
"It has the power to transfer civil and criminal cases pending in trial courts of Jammu and Kashmir to other states, though the border state enjoyed a special status with its own laws and Constitution," a five-member Constitution Bench headed by Chief Justice TS Thakur said this while delivering the landmark judgment. "This was possible because the apex court had to ensure that justice was accessible to all which was part and parcel of the right to life guaranteed under Article 21 of the Constitution," the five-member Constitution bench further said.
Justifying the judgment, the Constitution bench further said: "The right is so basic and inalienable that no system of governance could possibly ignore its significance, leave alone afford to deny the same to its citizens. Even under Article 14 (right to equality), no discrimination could be made to deny the right". All the judges were on the same side and they, besides Chief Justice TS Thakur, who hails from Jammu, included Justices Ibrahim Kalifulla, AK Sikri, SA Bobde and R Banumathi.
The operative part of the judgment, which was authored by the CJI himself for the Bench, read: "The absence of an enabling provision, however, cannot be construed as a prohibition against the 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 or any public policy can be seen in the cases at hand, much less a public policy based on any fundamental principle. The apex court enjoys extraordinary powers under Article 142 of the Constitution to do substantial justice, if it found that non-transfer would deny access to justice".
This historic judgment was delivered after several matrimonial, civil and criminal cases were referred to the Constitution Bench as the Jammu and Kashmir Government contended that the apex court had "no jurisdiction to transfer such cases to other states".
The apex court's judgment could be considered a great step forward as far as the process of the state's constitutional integration into India is concerned. It should be also construed as a big slap on the face of Kashmiri separatists and other Kashmiri leaders who want greater autonomy or self-rule for J&K on the ground that it is a Muslim-majority state. Besides, the landmark judgment will help the people of the state get speedy justice.
All in all, the Supreme Court's judgment could be termed as a vindication of those who had been saying since decades that the grant of special status to the state had adversely impacted everyone and every institution in the state. |
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