By Radhika M
Introduction
The Supreme Court of India is empowered to transfer or withdraw cases which are pending in the High Courts under some circumstances. This power is used for preventing the Courts from passing conflicting decisions.
Article 139A empowers the Supreme Court to withdraw cases pending before High Court(s) and try such cases by itself. It also empowers the Court to transfer cases from one High Court to another.
Article 139A was introduced through an amendment to the Constitution of India. The 42nd Amendment Act, 1976 inserted Article 131A, Article 139A and Article 144A intending to invest the Supreme Court with the power to decide the validity of central laws. Later through 44th Amendment Act of 1978, the other two articles were omitted while Article 139A was kept.
Article 139A(1) states that if cases involving same or substantially same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts, the Supreme Court may withdraw such case(s) and dispose the cases by itself.
The withdrawal / transfer is possible only when the Court is satisfied on its own motion or on an application made by the Attorney General or by an interested party to the case that, such cases involve a substantial question of general importance.
After deciding such substantial question of law, the Supreme Court may return the case to the High Court and the High Court shall dispose the case in conformity with the Judgment passed by the Supreme Court.
Therefore in order to transfer a case to the Supreme Court under Article 139A(1), the following conditions must be satisfied.
- Cases involving same substantial question of law must be pending before the Supreme Court and one or more High Courts or before two or more High Courts.
- An application shall be filed by Attorney General or an interested party to the case.
- The Court may transfer or withdraw the case(s) on its own motion.
Article 139A(2) says that the Supreme Court may transfer a case or appeal or any other proceeding from one High Court to another High Court, if it thinks that it is expedient to do so for the ends of justice.
Procedure under Supreme Court Rules
Order XL of Supreme Court Rules, 2013 deals with applications under Article 139A(1). Every application under Article 139A (1) shall be in writing. The application shall be divided into paragraphs. It must contain facts of the case, stage of the proceedings in the High Court, substantial question of law involved etc.
If an application is made by an interested party, an affidavit along with a certificate from the Advocate on Record stating that the case involves a substantial question of general importance shall also be filed. If the application is filed by Attorney General, affidavit is not necessary but the certificate from Advocate on Record is needed.
The application shall be posted for preliminary hearing and if the Court is satisfied that there is a prima facie ground for granting the application, notice shall be sent to concerned parties to show cause why the case must not be transferred. The matter shall also be intimated to High Court and the High Court shall file a report regarding the stage of proceedings within 4 weeks.
After hearing the parties if the Court is satisfied that the case shall be transferred, it may withdraw the case from High Court. On transfer, the case will be registered in the Supreme Court Registry as Transferred Case.
Within 60 days of transferring the case, the petitioner shall file his written brief. It shall contain a short summary of facts essential for deciding the case. It shall also contain propositions of law that is likely to come up during hearing.
Within four weeks of filing of written brief by petitioner, respondent shall also file his statement. No party will be entitled to advance any new proposition of law during the hearing which he did not mention in the written brief.
Order XLI of Supreme Court Rules deals with application under Article 139A(2). Every petition under Article 139A (2) shall be in writing. It must be divided into paragraphs and facts of the case shall be clearly stated.
It shall specify the name of the court to which transfer is sought. The petition shall be supported by an affidavit. The petition shall be posted for preliminary hearing.
If there is a prima facie case, the Court may direct the concerned parties to show cause as to why the case must not be transferred. A copy shall be provided to the High Court also. If there is any opposition, an affidavit to that effect shall also be filed. Then the petition shall be listed for hearing.
Case laws
In the case of Union Carbide Corporation Vs. Union of India[1], the Supreme Court observed that Article 139A was not intended to whittle down the existing powers of the Court conferred under Article 136 and Article 142 of the Constitution.
Article 139A would not exhaust the power of the Court to transfer and withdraw cases. Article 139A enables the litigant to approach the court for transferring proceedings and it will not affect the powers already vested with the Court.
In the case of Sunil Rathee Vs. The State of Haryana[2] the Supreme Court withdrew the cases relating to reservation of economically backward classes which were pending before the Gujarat High Court and Punjab and Haryana High Court. The Court found that there was same substantial question of law involved in both cases and withdrew the case from the High Courts.
In the case of L.K. Venkat Vs. Union of India[3] an application under Article 139A was filed by the Petitioner before the Supreme Court. He contended that the writ petition filed before Madras High Court by convicts in Rajiv Gandhi Murder case involved the same question of law as in the case of Devendar Pal Singh Bhullar Vs. NCT of Delhi[4]. The later was pending before the Supreme Court of India and it challenged the execution of a death sentence.
Devender Pal Singh Bhullar was awarded with death sentence in 2002 under the provisions of Terrorist and Disruptive Activities Act. Later he filed Mercy Petition before the President of India in 2006 which was rejected only in 2011.
Therefore, he claimed that his death sentence be commuted to imprisonment for life due to the long delay occurred in the disposal of mercy petition.
Apparently, so was the case of convicts in the Rajiv Gandhi Murder case. There was an inordinate delay in disposing their mercy petitions. The cases carried same question of law i.e, whether a death sentence can be commuted to life imprisonment due to the inordinate delay happened in disposing mercy petitions by the President of India.
Since one of such cases was pending before the Supreme Court and the other before High Court of Madras, the Apex Court transferred the later under Article 139A.
In the case of Umesh Chandra Shukla and Anr. Vs. Union of India[5] a Writ Petition was filed before the Supreme Court of India challenging the recruitment conducted for filling vacancies in the Delhi Judicial Services. It was alleged that there were serious irregularities in the exams and viva voce conducted.
Since some candidates filed writ petition before Supreme Court under Article 32 and some others before the High Court of Delhi under Article 226, the Supreme Court withdrew the cases from High Court to itself.
In the case of State of A.P Vs. National Power Thermal Corporation Ltd.[6] the Respondents produced electricity at its thermal power stations in Andhra Pradesh. The State Government of Andhra Pradesh levied duty on the sale of electricity by the Corporation outside the state limits. This was challenged by the Corporation in High Court Judicature at Hyderabad.
The High Court ruled that the levy of duty cannot be permitted, and the amount collected shall be refunded. The state being aggrieved by the order, requested a leave from the High Court to challenge the same before Supreme Court. The High Court in an application for leave ruled that there was a substantial question of law involved in the case and referred the matter to Supreme Court under Article 145 (3).
When the Supreme Court was seized of the Appeal, the Respondents contended that there was a similar issue pending before the High Court of Madhya Pradesh. The government of Madhya Pradesh has allegedly imposed a duty of Rs. 271 Crores on the Respondents for the sale electricity produced in their thermal plants located at Madhya Pradesh.
So, the Corporation filed a transfer petition under Article 139A of the Constitution to transfer the case from Madhya Pradesh High Court which was allowed by the Court.
In the case of Balaji Coke Industry Pvt. Ltd Vs. M/S. Maa Bhagwati Coke[7], Petitioner and Respondent entered into a High Seas Sale agreement for the trading of coal. The agreement was executed in Kolkata and the arbitration clause in the agreement provided that in case of a dispute, the parties shall submit to Kolkata jurisdiction.
But when a dispute arose, the Respondent appointed a retired Judge of Gujarat High Court who was based in Ahmedabad. Also, the Respondent obtained an injunction order against the petitioners from a civil court in Gujarat. So the petitioners filed an application under Article 139A(2) to transfer the proceedings to Kolkata. And the Supreme Court transferred the proceedings to Calcutta High Court and observed that the Respondents violated the contract.
Conclusion
Article 139A prevents conflicting decisions being pronounced by various courts of the land. It also helps the Court to settle a judicial precedent which can prevent further litigations in the same matter.
Also, it gives a right to the interested party to seek an appropriate forum. At various instances, the Court transferred cases to ensure a fair trial.
This power also helps the Court to fulfil its role as nation’s top judicial body. Even so, the Court has always been cautious, so as to not to overstep its boundaries.
- Union Carbide Corporation Vs. Union of India (1991) 4 SCC 584 ↑
- Sunil Rathee Vs. The State of Haryana 2020 SCC Online SC 594 ↑
- L.K. Venkat Vs. Union of India (2012) 5 SCC 292 ↑
- Devendar Pal Singh Vs. State (NCT of Delhi) (2013) 6 SCC 195 ↑
- Umesh Chandra Shukla Anr. Vs. Union Of India 1985 AIR 1351 ↑
- State of A.P Vs. National Power Thermal Corporation Ltd (2002) 5 SCC 203 ↑
- Balaji Coke Industry Pvt. Ltd. Vs. M/S. Maa Bhagwati Coke 2009 (9) SCC 403 ↑
