Constitution of India

Article 139A- “Transfer of certain cases.

The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next Article in the series on constitutional provisions in order to aid our readers in understanding them.

139A. “Transfer of certain cases.—(1) Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or an application made by the Attorney-General for India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself:

Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment.

(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.”

Where the High Court can itself dispose of a petition in the light of the previous decisions of the Supreme Court, the application for transfer of cases to the Supreme Court cannot be entertained. No man should suffer because of the mistake of the court. No man should suffer a wrong by technical procedure or irregularities. Rules of procedure are the hand-maids of justice and not the mistress of the justice. Ex debito justitiae, the court must do justice to him. If a man has been wronged, so long as it lies within the human machinery of administration of justice, that wrong must be remedied. The Supreme Court is not competent to transfer a case to a High Court judge which is triable by a special judge only. Article 139A is not intended to whittle down powers under Articles 136 or 142.

Article 139A was introduced as part of the scheme of the 42nd Constitutional Amendment. That Amendment proposed to invest the Supreme Court with exclusive jurisdiction to determine the constitutional validity of central laws. Article 139A enabled the litigants to approach the Apex Court for transfer of proceedings if the conditions envisaged in that Article were satisfied. It was not intended, nor did it operate, to whittle down the existing wide powers under Articles 136 and 142 of the Constitution. To the extent power of withdrawal and transfer of cases to the Apex Court is, in the opinion of the Court, necessary for the purpose of effectuating the high purpose of Articles 136 and 142(1), it must be held not to exhaust the power of withdrawal and transfer. Article 139A(2) empowers the Supreme Court to transfer any case pending before any High Court to any other High Court. A matrimonial case can be transferred by the Supreme Court in exercise of its powers under Article 139A of the Constitution to a court having no jurisdiction under the Hindu Marriage Act.

Source: Dr Subhash C Kashyap: Constitutional Law of India


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