Cases can be moved out of J-K, Centre tells SC

New Delhi: The Centre today maintained before a 5-member Constitution Bench headed by Chief Justice TS Thakur that the Supreme Court had the power to transfer cases in trial courts of Jammu and Kashmir to other states despite the special status enjoyed by the border state.

R Sedhuraman

Legal Correspondent

New Delhi, February 8

The Centre today maintained before a 5-member Constitution Bench headed by Chief Justice TS Thakur that the Supreme Court had the power to transfer cases in trial courts of Jammu and Kashmir to other states despite the special status enjoyed by the border state.

The apex court had extraordinary powers under Article 142 which enabled it to pass any order for ensuring complete justice in any case or matter pending before it, Solicitor General Ranjit Kumar pleaded.

The Centre made the statement after being asked by the Bench to clarify the legal position to enable it to adjudicate about a dozen cases involving the question of transfer of trial from Jammu and Kashmir to other states. The other members of the Bench were Justices FMI Kalifula, AK Sikri, SA Bobde and R Banumathi.

The cases were referred to the Constitution Bench by several smaller Benches, which had initially held the hearing, as Jammu and Kashmir has its own Constitution, laws and codes of procedure, both civil and criminal. In disputes involving Jammu and Kashmir residents and those from other states, the litigants from the border state want the trial to continue within their state but that has been opposed by others.

Beginning the hearing on the issue, the Bench said it would have to see the rights of the J&K residents to have the trial under the special state laws and of the other parties from outside the state to decide the issue.

Advocate BR Jad, who appeared in a divorce case, opposed the plea of a separated woman for the transfer of her case to Ludhiana. He contended that his client was a resident of Jammu, where the marriage had taken place, and as such had the right to fight the case under the state laws, not under national or any other state laws. Advocates representing their clients in other cases were also equally divided on the issue of transfer of trial. After assessing their stand, the Bench said it would have a detailed hearing before coming to a conclusion on the issue.

Solicitor General Ranjit Kumar noted that Supreme Court Rule 39 also allowed the court to transfer cases from one state to another. He also explained Article 370 under which Jammu and Kashmir had special status and Articles 1, 133-35 and 139(a)(2). The arguments will continue on February 12.