ANITA KUSHWAHA versus PUSHAP SUDAN

Citation: [2016] 9 S.C.R. 560 · Decided: 19-07-2016 · Supreme Court of India · Bench: T.S. THAKUR · Disposal: Directions issued
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Judgment (excerpt)

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[2016] 9 S.C.R. 560 
ANITA KUSHWAHA 
v. 
PUSHAP SUDAN 
(Transfer Petition (C) No. 1343 of2008) 
JULY 19, 2016 
[T.S. THAKUR, CJI, FAKKIR MOHAMED IBRAHIM 
KALIFULLA, A.K. SIKRI, S.A. BOBDE AND 
R. BANUMATHI, JJ.] 
Constitution .of India: 
Arts.32, 142 - Transfer petition - Whether Supreme Court 
has power to transfer a civil or cri111inal case pending in any court 
in the State of Jam111u and Kash111ir to a Court outside that State and 
vice versa - Held: The provisions of s.25, CPC and that of s.406, 
D . Cr.P.C. as applicable to the rest of India, cannot be invoked by any 
litigant seeking transfer of any case to or from the State of Jam111u 
and Kashmir - It is equally true that Jammu and Kashmir Code of 
Civil Procedure, 1977 and Jammu and Kashmir Code of Criminal 
Procedure, 1989 also do not have any provision empowering the 
Supreme Cou/"t to direct transfer 'of any case civil or criminal from 
E 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 - The fact that there is no such enabling provision for 
transfer from or to the State of Jammu and Kashmir does not detract 
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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 - If acr;:ess to justice is a facet of the right to life 
guaranteed under Art.21, a violation actual or threatened of that 
right would justify the invocation of poivers under Art.32 - Any 
such exercise would be legitimate, as it would prevent the violation 
G of the fundamental right of the citizens guaranteed under Art. 21 -
Apart from that, even Art. 142 can be invoked to direct transfer of 
a case from one court to the other where the Court is satisfied that 
denial of an order of transfer from or to the Court in the State of 
Jammu and Kashmir will deny the citizen his/her right of access to 
iustice - The provisions of Arts. 32, 136 and 142 are, therefore, 
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ANITA KUSHWAHA v. PUSHAP SUDAN 
wide enough to empower Supreme Court to direct such transfer in 
appropriate situations - Code of Civil Procedure, 1908 - s.25 - · 
Code of Criminal Procedure, 1973 - s.406. 
Arts.14, 21 - Access tojustice - Held: ls .inc!eed a facet of 
right to life guaranteed under Art. 21 ~Access to justice may as 
well be the facet of the right guaranteed under Art. 14 which 
guarantees equality before law and equal protection of laws to 110t 
only citizens but non-citizens also - Citizens inability to access 
courts or any other adjudicato'ry mechanism provided for 
determination of rights .and obligations is bound to result in denial 
of the guarantee contained in Art.14 both in relation to equality 
before law as well as equal protection of laws. 
Access tojustice - Principles of - Held: State must provide 
an effective adjudicatory mechanism; the mechanism so provided 
must /;Je reasonably accessible in terms of distance; the process of 
adjudication must be speedy; and the litigants access to the 
adjudicatory process must be affordable. 
Code of Civil Procedure, 1908: s.1 - Code of the Criininal . 
Procedure, 1973 - s.l - General application of CPC and Cr.P.C to 
the State of Jammu and Kashmir - Held: CPC and also Cr.P.C, as 
applicable to the rest of the country specifically exclude the 
application thereof to the State of Jammu and Kashmir. 
Answering the reference, the ~ourt 
HELD: 1.1. The concept of 't1ccess to .iustice' as an 
invaluable human right, also recognized in most constitutional 
democn.cies as a fundamental right, has its origin in common law 
as much as in the Magna Carta. The Universal Declaration of 
Rights drafted in the year 1948 gave recognition to two rights 
pertaining to 'access to justice'. To the same effect is Clause 3 of 
Article 2 oflnternational Covenant on Civil and PoHtical Rights, 
1966 which provides that each State party to the Covenant shall 
undertake that every person whose rights or freedom as 
recognised is violated, shall have an effective remedy and to 
ensure that any person claiming such a remedy shall have his 
right thereto determined by competent judicial, administrative 
or legislative authorities, and the State should also ensure to 
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SUPREME COURT REPORTS 
[2016) 9 S.C.R. 
A develop the possibilities of judicial remedies. [Paras 9, 10 and
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