Few people know about Article 139A as it is sparsely used by the Supreme Court but the makers of the Constitution gave wide powers to the Apex Court under this Article.
Article 139A in the Constitution of India 1949 reads as under:
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 of 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the cases itself: Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment (2) The Supreme Court may, if it deems it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.
In a recent judgement dated 23 July, 2020 in the case of Sunil Rathee & Ors. vs The State of Haryana & Ors., the Apex Court had an opportunity to explain the circumstances when cases can be transferred from High Courts to itself under Article 139A of the Constitution of India. The Single member Bench of the Apex court dealt elaborately on the issue while deciding a transfer petition. A writ petition was pending in the Punjab & Haryana High Court concerning the issue of 10 per cent vertical reservation for Economically Weaker Sections in public employment. The petitioner had pleaded the Apex Court for transferring the petition from the Punjab & Haryana High Court to the Supreme Court on the ground that similar petitions concerning identical issues were pending before the Apex Court for adjudication. The transfer plea was opposed by the State of Haryana which contended that it is not mandatory to transfer the matter to the Supreme Court and the matter be kept in abeyance till the Apex Court finally decides the matter.
The Court held that the conditions stipulated in Article 139A for the transfer of cases from the High Court to the Supreme Court stand fulfilled in the present case and accordingly ordered for its transfer to itself. The Court, while ordering the said transfer, held thus:
“The provision of Article 139A of the Constitution relating to withdrawal of a case from a High Court to this Court on the ground of pendency before this Court of a case involving same or similar questions of law contemplates fulfilment of two conditions. First, in the case pending before this Court, the questions of law involved ought to be the same or substantially the same as those involved in the case in the High Court, the withdrawal of which can be asked for. Secondly, this Court, while exercising the jurisdiction vested in it under Article 139A of the Constitution must be satisfied that such questions are substantial questions of general importance. Such satisfaction can be on this Court’s own motion, on an application made by the Attorney General or on the basis of an application made by a party to any such case. One of the key points involved in the appeal of the State of Gujarat in the case of Ms Dulari Mahesh Basagre & Anr (supra) is as to whether the Ordinance involved therein is contrary to the ratio laid down by this Court in the case of Indra Sawhney (supra) or not. The writ petition before the Punjab and Haryana High Court is also anchored on the same authority, in assailing the notification of 27th September 2013. I am also satisfied that the writ petition pending before the Punjab and Haryana High Court as also the appeal in the case of State of Gujarat (supra) involve substantially the same questions of law and these questions are of general importance. The fact that the Gujarat Ordinance was promulgated before coming into effect of the Constitution (One Hundred and Third amendment) Act, 2019 does not have significant distinguishing impact so far as the questions forming the basis of the said Civil Appeal and the Writ Petition pending before the Punjab and Haryana High Court are concerned. I have already referred to the key-point forming the subject of controversy in the said Appeal and the Writ Petition.”
The Court while distinguishing the case of Commissioner of Services Tax vs. Sri Selvaganapathy and Co. [2018(4) SCC 578] held that the said case was given in a different set of circumstances and is not a Precedent for Article 139A. The Court finally held thus:
“Article 139A vests this Court with jurisdiction to direct transfer or withdrawal of a case pending in a High Court to this Court on two grounds, to which I have referred earlier. On satisfaction of these conditions, this Court can make direction in exercise of its discretion for withdrawing the case for disposal of the same by itself. The manner in which such discretion would be exercised would vary from case to case.”
Article 139A can thus be resorted to get the cases pending in different High Courts involving similar substantial questions of law transferred to the Apex Court to contain multiplicity in proceedings and saving the valuable time & energy of the courts for obtaining the final verdict on the substantial questions of Law.
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