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The Centre moved the Supreme Court on December 8 to seek transfer of petitions challenging the constitutional validity of the Citizenship Amendment Act which were pending before various high courts to the apex court. Probably rattled by the scale, intensity and severity of the month long protests against the Citizenship Amendment Act, 2019 and proposed NPR-NRC, the Centre has moved to do what governments always attempt: skip a vital tier of judicial examination and evaluation. After all we have a four tier system for a reason, that appreciation of law and facts needs reasoning as well as mature judicial determination. In these four layers, the higher courts –HC and SC have Constitutional powers to decide on fundamentals of law, and facts.
Today, January 10, the Supreme Court is set to hear the petition on December 10 but the bench comprising of CJI SA Bobde and Justices BR Gavai and Surya Kant have voiced their reservations against it. The bench said, “We are of the prima facie view that high courts should hear petitions challenging CAA and in case there is a conflict we may look into it.”
While the Solicitor General, Tushar Mehtas’ contention was that different high courts will have conflicting views and lawyers will have to move to different courts to attend to each of the hearings. The Court maintained that inconvenience to lawyers due to traveling to different courts was not its priority.
Power of Supreme Court to Transfer
Article 139A was inserted in the Indian Constitution by the 42nd Amendment Act of 1976 – the controversial Emergency related amendments — and speaks about the power granted to the apex court for transfer of certain cases. Among other things, the Article states that cases where substantial question of law is raised are pending before the Supreme Court as well as one or more High Courts and Supreme Court deems that such questions are substantial questions of general importance it may transfer such cases to itself and dispose them of accordingly.
Hence, the power of the Supreme Court to transfer cases from High Courts to itself is not denied but this power is exercised with extreme caution as is usually done in cases where discretion of the court is to be exercised.
The Supreme Court in Maneka Sanjay Gandhi v. Miss Rani Jethmalani (1979 AIR 468),Justice Krishna Iyer had held thus, “Assurance of a fair trial is the firstimperative of the dispensation of justice and the centralcriterion forthe Court toconsider whenmotionfourtransfer is made is not the hypersensitivity or relativeconvenience of a party or easy availability of legalservices or the like minigrievances.” He had held that for the court to exercise it power of transfer of case, the issue has to be substantial, compelling, imperilling from the point of view of public justice and its attendant environment. He held this to be the cardinal principle for deciding cases on transfer petitions.
Power of High Court to consider validity of central laws
The 42nd Amendment Act, 1976 had inserted Article 226A in the Indian Constitution which disabled the power of High Court rule on or adjudicate upon the constitutional validity of central laws in accordance with the powers conferred to it under Article 226.
This article was then repealed by the 43rd Amendment Act, 1977, with a new government in power once the Emergency was lifted. Clearly, the intention of the legislators through the 43rd Constitution Amendment Act was to keep the powers of the High Court intact, in fact to restore them, in terms of deciding constitutional validity of laws whether they are state level or central laws. This was done as Supreme Court was not to become the only court of the land that would have the power of judicial review and to maintain the importance of the High Courts.
The Supreme Court has seldom allowed transfer petitions in its long history of jurisprudence especially in civil cases of non-matrimonial nature. The consideration has mostly been expedient nature of the petitioner’s plea for transfer. The reason behind this is that while filing a suit, the petitioner has chosen the High Court as his court expecting delivery of justice and the High Court has allowed and admitted such suit as it fulfils its requisite for jurisdiction. A transfer petition disturbs this arrangement and the Supreme Court will do so only if it is convinced that it will serve the purpose of justice.
Even in this case where it is to be decided if the CAA is a constitutionally valid law, the Supreme Court, prima facie, is averse to consider the transfer of the case from all the high courts to the Supreme Court. Firstly, the High Courts have the jurisdiction under Article 226 as much as the Supreme Court to consider substantial question of law.
The Supreme Court is expected to exercise extreme caution and follow previously laid out principles while considering transfer petition which is done when it is expedient to do so. Hence, unless the Centre puts forth some compelling arguments to show that the transfer of the case is necessary in the interest of justice, allowing such a petition would amount to undermining the competence of the High Courts and that is not the kind of stand the Supreme Court would prefer taking.
Gujarat 2002 Cases
Even in the famed Gujarat 2002 cases, wherein both the National Human Rights Commission (NHRC) and Citizens for Justice and Peace (CJP) approached the Court urging transfer –making out strong cases for the utter failure of the Constitutional machinery –the Court adopted a cautionary approach. In the BEST Bakery Case, the SC directed the High Court to speedily hear the hurried acquittal by a Vadodara based court (June 2003) and only after the judgement that resulted (January 2004) did it ultimately deliver its historic judgement to transfer the case to Maharashtra (Zahira Habibullah Shaikh v/s State of Gujarat, April 12, 2004). In the other major criminal trials related to the massacres in Gujarat 2002, the Court waited and watched how lower courts handled the trials and only when evidence was filed as to the compromised positions of the entire criminal justice system in the state, did the SC first stay the trials (2003) and then appoint a Special Investigation Team (SIT) in the case in 2008.
CAA 2019 challenged
It is curious that nearly two weeks after the SC issued notice to the Centre on petitions challenging the validity of the Citizenship Amendment Act without granting a stay, and posted the hearing for January 22, the Centre has rushed to try and ensure that it does not have to reply to different petitions filed in various courts that could result in a rich and varied understanding of the intent and purpose of this controversial law.
The Act provides citizenship rights to certain class of refugees who have come to India from Pakistan, Bangladesh and Afghanistan, specifically excluding Muslims. A bench comprising Chief Justice S A Bobde and justices B R Gavai and Surya Kant fixed the pleas, including those filed by the Indian Union Muslim League and Congress leader Jairam Ramesh. The bench issued notice to the Centre on the batch of pleas, seeking stay on the operation of the law as well as on the main petition challenging the constitutional validity of the legislation.
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