Applications for Transfer under Article 139A(1) of the Constitution: Legal Insights and Procedural Guidelines

Introduction

Article 139A(1) of the Indian Constitution provides a significant mechanism for the transfer of cases from one High Court to another or from a High Court to the Supreme Court.

This provision serves as a vital tool in cases where there is a need to ensure fairness, uniformity in law, and convenience for the parties involved.

The procedure for making an application under Article 139A(1) is outlined in Order XL of the Supreme Court Rules, and it involves several steps designed to ensure that the transfer is justified and legally sound.

In this article, we explore the detailed process for applying for the transfer of cases under Article 139A(1), its requirements, and the practical considerations for litigants.

1. Procedure for Filing an Application Under Article 139A(1)

Step 1: Preparing the Application

An application under Article 139A(1) must be in writing and should include the following key components:

• Case Details: The application must specify the facts and particulars of the cases pending before the Supreme Court or High Courts, including the names and addresses of the parties involved.
• Questions of Law: The application must outline the questions of law involved in the case and explain that these questions are substantial and of general importance.
• Affidavit and Certificate: If the application is made by the Attorney-General, no affidavit is required. However, the application should include a certificate from an advocate-on-record stating that the questions involved are substantial and of general importance. If the application is made by a party to the case, it must be accompanied by an affidavit supporting the claim and a similar certificate from an advocate.

Step 2: Preliminary Hearing and Orders for Notice

Once the application is filed, it is posted before the Court for preliminary hearing. During this hearing, the Court evaluates whether a prima facie case for transfer has been made out. If the Court is satisfied, it will issue a notice to the concerned parties to show cause why the case should not be transferred. This notice must be served through the relevant High Court, and the Court will instruct the High Court to report within four weeks on the status of the case.

Step 3: Filing of Affidavits and Service of Notice

After the notice is issued, the parties involved must file their affidavits. These affidavits must be filed at least two weeks before the final hearing. The Attorney-General must file his reply affidavit within two days of the hearing. All affidavits must contain an endorsement of service, confirming that they have been served to the relevant parties.

2. The Process After Transfer is Ordered

If the Supreme Court is satisfied that the transfer application has merit, it will direct the High Court to transfer the case to the Supreme Court once it is ripe for hearing. Upon transfer, the following steps are undertaken:

• Registration as Transferred Case: The case is registered in the Supreme Court as a Transferred Case.
• Preparation of Record: The Registrar of the High Court is responsible for preparing and printing the record of the transferred case. This includes the preparation of twenty copies of the record, which must be sent to the Supreme Court within six months from the date of the transfer order.
  • Costs of Record Preparation: If the case is transferred on the application of a party, the party bears the cost of preparing the record. If the transfer is at the behest of the Union of India or a State Government, the respective government bears the cost. The cost of preparing the record in cases initiated by the Court itself may be governed by the specific orders of the Court.

3. Filing Written Briefs for the Transferred Case

Once the case record is transferred to the Supreme Court, the parties must file written briefs according to the following timeline and guidelines:

• Petitioner’s Brief: The petitioner (or appellant/plaintiff) must file their written brief within sixty days of receiving notice of the transfer. The brief should include:
  • A summary of essential facts.
  • Propositions of law, including references to relevant authorities and texts.
  • A list of relevant dates in chronological order.
• Respondent’s Brief: The respondent (or defendant) must file their brief within four weeks after receiving the petitioner’s brief. The respondent’s brief should address each of the petitioner’s propositions and cite any legal authorities they wish to rely on.
• Attorney-General’s Brief: If necessary, the Attorney-General or Advocate-General for the State may file their brief within four weeks of receiving the briefs from the parties.
• Reply Brief: The petitioner has the right to file a reply brief within one week of receiving the respondent’s or Attorney-General’s brief. This should be concise and directly address any new points raised by the opposition.
• Service of Copies: All briefs must be served on the other parties involved in the case. The briefs are not accepted by the Registry unless they are endorsed with a certificate of service confirming that the opposing parties have received copies.

4. Hearings and Final Orders

Once the written briefs have been filed and served, the case is listed for final hearing before the Court. During the hearing:

• No New Propositions: Parties are not allowed to introduce new arguments or authorities that were not included in the written briefs, unless they have received special permission from the Court.
• Submission of Copies: At least fifteen copies of the briefs must be lodged with the Registry.

Following the hearing, the Court may pass orders on the transfer application and issue appropriate costs orders.

5. Conclusion

The process of filing a transfer application under Article 139A(1) of the Constitution is a structured and detailed procedure that requires adherence to strict timelines and procedural rules. It ensures that cases involving substantial questions of law and general importance can be decided by the Supreme Court when such cases are pending in multiple High Courts.

The application must be meticulously drafted, with due attention to legal provisions, necessary certifications, and proper service of documents. Failure to comply with the procedural requirements may result in dismissal or adverse consequences, including costs or delays in the case. Litigants are advised to seek expert legal guidance to navigate this complex process and ensure that their transfer application is filed in accordance with Order XL and Article 139A(1).

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