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Article 142 to the Rescue

The seat of justice is often referred to as the seat of God. Supreme power must be used by the state while rendering justice. This paper will attempt to highlight on the plenary powers exercised by the Supreme Court in order to bloom the term ‘complete justice' as mentioned under Article 142 of the Indian Constitution. It will emphasize on the purpose of conferring such power to the Supreme Court. The objective of the paper is to analyze the nature and scope of this extraordinary power. Furthermore, it will be dealing with varying instances of paramount importance wherein such powers have been exercised giving blood and life to the dry skeleton of the statute.

During the recent years, Supreme Court has been foraying into the areas which had earlier been forbidden by the Judiciary in the name of ‘separation of powers.' This paper has also attempted to bring out the instances saying that there needs to be introspection on the usage of this Article as an independent source of power which needs regulation.

It is discussed as to how this Article is supplementary in nature and cannot be supplanted by the substantive provisions, even though there is no limit on it as such. This Article is repository of unlimited powers whose aim is solely to render complete justice. Finally it will furnish us with the necessity of this Article in the contemporary world with a blend of few personal opinions as well.

Introduction
Justice should be given supremacy over injustice for which the judicial system was entrenched. There is sometimes a contradiction between the constitutional and statutory provisions, which is the consequence of rare circumstances wherein the extraordinary powers conferred on the Supreme Court has been in contradiction with the legal statute. Supreme Court being the apex court in our country is entrusted with supervisory jurisdiction on lowers courts and tribunals to ensure that any judgement given by them is in accordance with justice, equity and equality. Such power to Supreme Court has been given under Article 142 of the Indian Constitution, in a view to grant ‘complete justice' to its citizens.

It is the enforcement of decrees and order of the Supreme Court in the exercise of the jurisdiction as necessary for doing complete justice. It is considered as a tool which strikes a balance between the contrasting interests and ultimately ensures that the righteous always succeeds. The right is to not to be used in a very casual manner but only to meet the ends of justice, by bridging the gap generated by insufficient laws, if any. It prioritizes equity over law and is a step towards justice orientation which is against the strict provisions of law[1].

It has to be kept in mind that while exercising such corrective powers; it is their duty to thrive on the constitutional principles. In our country where judges play a very crucial role, it is the duty of the judiciary to infuse life and blood into the skeleton of the legislative provisions[2]. Yet there may be certain distinctive aspects which may be intrinsic to the notion of complete justice and that the justice must be analogous to fairness[3].

Power Of Supreme Court Under Article 142

Article 142 confers plenary powers on the Supreme Court which empowers it to pass such decree or make such order, in the exercise of its jurisdiction, as is necessary for doing complete justice in any cause or matter pending before it and those decrees or orders shall be enforceable throughout the country in such manner as may be prescribed by or under any law made by the Parliament[4]. This implies that the Supreme Court can act, under Article 142, in such matters, where there is some manifest illegality or where some palpable injustice has resulted and the grant of relief is beyond the parameters of the statutory law.

It also encompasses a power of equity which is employed when the strict application of the law is inadequate to produce a just outcome. The demands of justice require a close attention not only to positive law but also to the silences of positive law to find within its interstices, a solution that is equitable and just. The legal enterprise is premised on the application of generally worded laws to the specifics of a case before courts[5].

Even where positive law is clear, the deliberately wide amplitude of the power under Article 142 empowers a court to pass an order which accords with justice as it is the foundation which brings home the purpose of any legal enterprise and on which the legitimacy of the rule of law rests. The equitable power under Article 142 brings to fore the intersection between the general and specific. Courts may find themselves in situations where the silences of the law need to be infused with meaning or the rigours of its rough edges need to be softened for law to retain its humane and compassionate face[6].

In Union Carbide Corporation v. Union of India[7], the Supreme Court had stated that in exercising powers under Article 142 and in assessing the needs of complete justice of a cause or matter, the apex Court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the powers of the Court under Article 142, but only to what is or is not complete justice of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power.

Purpose Of Conferring Such Power To Supreme Court

The purpose of conferring such power to the Supreme Court is to do complete justice in areas where the statutory legislations are unable to step in and, thereby, leading the litigants deprived of appropriate remedy even after multifarious legal proceedings in all the courts across the country.

Article 142 read with Article 144 marks a restriction on the legislative power to undo the effect of the decree or order and thus, if a legislative enactment seeks to make unenforceable the decree or order of the Supreme Court in relation to the cause and the parties between whom it was made, such law would be void for contravening Article 142[8]. The directions issued under Article 142 can widely be interpreted as a relief and also as the declaration of law.

The article is also different and a step ahead of article 136 which is restricted to the limitations under the specific provisions of the law for appeal while under article 142 any enforceable decree or order can be passed as is necessary for doing 'complete justice' in any matter or for meeting myriad situations created by human ingenuity of cause or result of operation of statute law or law declared under Articles 32, 136 and 141 of the Constitution[9].

The Constituent Assembly during its debates modified it as “The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it”. It is this draft which was finally adopted as Article 142.

The necessity for incorporating such an article into the Constitution was spelt out in the Constituent Assembly, which spoke, through Shri Thakur Das Bhargava[10], that the natural justice, in the words of the Privy Council, is above law, and the Supreme Court will also be above law, in the sense that, it shall have full right to pass any order which it considers just. This is a very important section and gives almost unlimited powers. Therefore, the Supreme Court shall exercise these powers and will not be deterred from doing justice by the provision of any rule or law, executive practice or executive circular or regulation etc. Thus the Supreme Court will be, in this sense, above law[11].

It was also more aptly put by Shri H.V. Pataskar[12] that the Supreme Court is intended in this country to serve the functions of the King in some other countries where he is the fountain-head of all justice[13].

In University of Kerala v/s. Council, Principals Colleges, Kerala[14], it was held that the conferment of judicial power under Articles 141, 142, 32 and 226 has been plenary and very wide and enable the Supreme Court to declare the law which shall be binding on all the courts within the territories of India and Article 142 enables the Supreme Court to pass such order as is required to do complete justice in the case.


Supreme Court had expressed its view on the significance of such an absolute power in Golak Nath v. State of Punjab[15], by stating that the law declared by this Court is the law of the land. To deny this power to this Court on the basis of some outmoded theory that the Court only finds law but does not make it, is to make ineffective the powerful instruments of justice placed in the hands of the highest judiciary of this country.

As this power is exercised only in rare situations when the facts of the case warrants such action by the Supreme Court, the matters decided in such a fashion cannot be taken as a judicial precedent in normal circumstances and should not be quoted either as an approving or overruling authorities to substantiate such cases. The apex Court has also clarified, in Union of India v. State of Maharashtra[16], that this article cannot be applied to encroach upon the field reserved for the legislature.

The Supreme Court has exercised this essential power in various instances to ensure complete justice by focussing on the greater public interest. Through this the Supreme Court has ensured that not only justice must be done but also be seen to be done.

Instances Where Supreme Court Has Invoked Its Plenary Powers Under Article 142

The expression used in Article 142 is to endeavour ‘complete justice' and its ambit was explained in the case of Manohar Lal Sharma v. Principal Secretary[17] wherein the Supreme Court can deal with exceptional circumstances interfering with the larger interest of the public in order to fabricate trust in the rule of law. In the case of A.R. Antulay v. R.S. Nayak[18], it was held that any discretion which is given by the court should not be arbitrary or in any way be inconsistent with provisions of any statute laid down. In Laxmi Devi v. Satya Narayan[19], Supreme Court had ordered the accused, under Article 142, to award compensation to the victim with whom he had sexual intercourse with a promise to marry and had later retracted with his promise. It was also made clear that the accused should not be convicted of rape.

Because of the blunt language of the statute, various interpretations have been formulated and sometimes it has experienced little injustice in the name of achieving complete justice. There was misuse of this power in State of Tamil Nadu v. K. Balu[20] wherein there was ban on sales of alcohol in state and national highways. The Central Government through a notification had put a ban on national highways only, but without any similar notification from the State Government the ban had been extended to the State highways as well.

It was done to minimize the drunk and drive cases. There were thousands of people who had lost employment because of this including the closure of hotels, bars and various restaurants situated in the highways. Moreover it was the Supreme Court which told that the right to employment is a basic right under Article 21 of the Constitution. Nowhere had it mentioned about the people losing their jobs. In order to achieve complete justice against the drunk and drive cases it had merely forgotten in granting justice to the workers. This very contradiction was highlighting the point that there has been a misuse of the power given to them.

Bhopal Gas Tragedy Case

The Union Carbide case was one of the chief instances where the Supreme Court had exercised Article 142. In Union Carbide Corporation v. Union of India[21], a gas leak took place in Bhopal at the Union Carbide India due to poor maintenance of gas chambers, leading to death of nearly thousands of people. The harmful effect was from methyl isocyanate gas. The rule of parent patriae authorised the Government of India to represent the victims and act on the best interests of them.

It was when the court realised a need to digress from the contemporaneous law in order to bring relief to the people who had been affected in the Bhopal gas tragedy. The court ordered to award compensation to the victims and placed itself in a position above to the Parliamentary laws seeking that such prohibitions and limitations, ipso facto, act as provisions highlighted under Article 142. There was no specific rule which explained the usage of Article 142 by the Supreme Court to achieve complete justice.

Such statement was later toned in the case of Supreme Court Bar Association v. Union of India[22]. This does not authorize the court to construct a new edifice and to ignore the substantive rights of the litigant; as such powers are curative in nature. It is believed that this law fills lacunae in the legal system. Time has arrived to introspect on the usage of Article 142 exercised by the Supreme Court as an independent and ultimate source of power to be regulated through stringent guidelines.

Ayodhya Dispute

In M. Siddiq v. Mahant Suresh Das[23], popularly known as the Ayodhya dispute, the Supreme Court had exercised the powers mentioned under Article 142 of the Constitution in order to achieve complete justice and had passed various orders which had not been originally prayed by the parties. It had done so by putting aside the judgement of the Allahabad High Court. Supreme Court being the final arbiter must conserve the balance by ensuring there is no dominance of freedom or belief of one individual over the other. It refused to make two divisions of the land and it entirely handed over 2.77 Acre of land to Hindus.

The case took a turning when the court felt that it would be injustice to the Muslim parties by dismissing the Sunni Waqf Board's claim as they witnessed an illegal demolition of their mosque in the year 1992. The Central Government was directed by the Supreme Court to grant a five acre land in an alternative site within the purview of the area being acquired by the Central Government. The Supreme Court had earlier dismissed the claims presented by the Nirmohi Akhada in the disputed land. By the virtue of Article 142, it again directed the Central Government to include the Nirmohi Akhada in a body which would further be responsible for the management of the land. They were the ‘Shebaits who were devotees serving the deity.

It was done to grant relief and to include them in the trust which was formed by the Centre under Section 6 of the Ayodhya Act.
The Court felt a need to exercise the extraordinary power of Article 142 in this case because the current laws were not at par with the complexities involved. It felt necessary to do so because of the complex nature involving a combination of history, religious sentiments and property.

It held that the demand of justice requires a very keen and close attention on the positive law where it is very much silent to find a solution which is just and equitable. Its wide amplitude is necessary where the stringent application of law has been inadequate to come up with a just solution.

Manipur Speaker Case

In Keisham Meghachandra Singh v. Hon'ble Speaker, Manipur Legislative Assembly[24], Mr. Shyamkumar Singh was duly elected as a candidate of the Congress Party. When the results were declared, Mr. Singh approached the Governor of the state along with few BJP members seeking to form a BJP led government and he was made the Minister representing BJP party. It was found that there were around 13 disqualification petitions against Mr. Singh which had been pending before the Speaker. Even after giving desirable time to the Speaker in order to look into the matters of disqualifications, he had failed to come up with any decision within the allotted time frame.

In this case, the Supreme Court exercised the extraordinary power and restricted the Manipur BJP MLA and Minister of Forest and Environment, Mr. Shyamkumar Singh from entering the State Assembly and ceasing him to be the Minister. Justice Nariman and Justice Bhatt had passed the order by exercising the Court's jurisdiction under Article 142 of the Indian Constitution. Two major guidelines of utmost significance had been passed. Firstly, the court can determine a time frame within which the Speaker is required to dismiss the disqualification petitions.

The check of Speaker's power under Tenth Schedule for judicial review was a debatable question. Later it was cleared that the judicial review would be restricted to judicial errors viz., any non compliance of rules laid down, violation of Constitutional mandate including any mala fide intention[25].

Secondly, it called for an amendment in the Constitution for disempowering the Speaker from dealing with the disqualification petitions and also nudged the Parliament to find an alternative mechanism for this very purpose. But the latter suggestion may make the system opaque just like the current collegium system in appointing of our Indian Judiciary. This will also shatter the base of democracy which is federal sovereignty as the Centre will have a strong say in the appointment of Speaker.

Divorce On The Ground Of Irretrievable Breakdown Of Marriage

The Supreme Court had noticed the need to pass an order by assuming its powers under Article 142. But this time, it was passed in a civil appeal praying for divorce in Munish Kakkar v. Nidhi Kakkar[26]. The material facts of the case state that the family of the respondent was based in Canada and the marriage between the parties was solemnized at Jalandhar according to Hindu rites. The period of stay of the parties was only for two months, as the respondent left for Canada to be with her family. This was not with the consent of the appellant and the respondent was making an endeavour for immigration of the appellant to Canada, at his behest. The respondent did not return to India and obtained Canadian citizenship.

During this time, no papers were filed with the Canadian authorities for immigration and the appellant was blamed for sending incomplete papers. The parties resided for barely two and a half months together, when a fight broke out between them and the respondent again left the company of the appellant. There was an intervention by the Panchayat which asked them to reside separately from their family, in a rented accommodation, but that too did not last for more than a couple of months. The respondent left the common residence after an altercation and then again left for Canada.

This resulted in the appellant filing a petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 on the ground of cruelty. The Court, after coming to know about this legal battle after a decade, by exercising its jurisdiction under Article 142 of the Constitution of India, granted a decree of divorce and dissolved the marriage by stating that the provisions of Article 142 provide a unique power to the Supreme Court, to do “complete justice” between the parties, i.e., where at times law or statute may not provide a remedy, the Court can extend itself to put a quietus to a dispute in a manner which would befit the facts of the case. It is with this objective that it had found appropriate to take recourse to this provision in this case as the marriage became a dead letter and all endeavours have been made to persuade the parties to live together, which have not succeeded.

The apex Court observed that not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties. The sooner this comes to an end, the better it would be, for both the parties. Though the learned single Judge has observed it as wear and tear of marriage and “inflamed passions”, the wisdom of the Court required it ask what would be a fit case if this is not such a fit case to grant divorce on the ground of irretrievable breakdown of marriage.

It had further opined that this marriage would permit the parties to go their own way in life after having spent two decades battling each other, and there can always be hope, even at this age, for a better life separately, if not together. This necessitated the Court to pass a decree to grant divorce on the ground of irretrievable breakdown of marriage.

Necessity Of Article 142 And Its Nature In The Contemporary World

Justice is an indivisible conception. Supreme Court, being assurer of rights of its citizens is expected to be vested with the sacred duty of doing justice to its citizens. Question certainly arises as to the fact that when the Judiciary is under the obligation to impart justice, then why there is a need of drafting a separate Article, with an undefined jurisdiction to pass any decree or order to do a complete justice.

There is no inherent safety valve in this Article which restricts the court from invoking this power. The answer to the question is indeed that, the usage of this Article is used to meet the situations which cannot be effectively and efficiently tackled by the existing provisions in our country.

In order to secure remedy under this Article, the case must meet the requirement of being exceptional in nature. This does not mean that delivery of justice except for as provided in Article 142 stands incomplete. Whenever the court feels that there is demand for justice, it will reach out to certify that justice is being resorted through such plenary power. One of the celebrated matters in implementing Article 142 was the Taj Trapezium case[27].

The Supreme Court had exercised Article 142 by imposing severe restrictions in Taj Trapezium zone on account of environmental pollution which made the iconic heritage monument, The Taj Mahal degrading. There should be made a clear distinction between ratio decidendi and the directions which has been issued under Article 142. A slight modification was made while taking Article 210 from the Government of India Act, 1935 and as a result Article 118 was finalised, drafted by the Constituent Assembly which is the present Article 142 of the Indian Constitution.

Due to the absence of major Constitutional Debates regarding this Article, it suggests that the founding fathers wanted the Supreme Court to exercise such extraordinary powers depending upon the fact and circumstances of the case. The Supreme Court's approach in this regard can be chronologically divided into three phases: restricted, harmonious and broad interpretations as it may deem fit.

The nature of this power has been summed up in an authoritative manner: “The plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statues. These powers are of very wide amplitude and are in the nature of supplementary powers”[28]. Finally the evolution of the Judicial Activism in our country, as means of justification for overriding the statutory provisions has constantly been under judicial scrutiny before any conclusion is arrived at.

Conclusion
Article 142 of the Constitution of India provides a special and extraordinary power to the Supreme Court to pass an order or decree to do complete justice to the litigants who have traversed through multitude of proceedings tainted with palpable illegality or injustice. This provision, as envisioned by the framers of the Constitution, is of utmost significance to those people who are petrified about the delay in getting their necessary reliefs due to the putrefied condition of reach of law and the disadvantaged position of the judicial system.

It can pass any order which it deems fit in the facts and circumstances of the case. However it must not only be consistent with the fundamental rights guaranteed under the Constitution, but also with the substantive provisions of relevant statutes. The Court should not pass any order that amounts to supplanting substantive laws. Judicial restraint must be exercised in invoking Article 142 and exercising the power merely on the ground of sympathy should not be done as this great plenary power is also a discretionary power which must not be exercised as part of regular exercise of jurisdiction of the Court.

There must be strong and cogent reasons for exercising this discretionary jurisdiction as such powers are meant to be exercised in order to further the needs of justice. This power of plenitude should be used judiciously to make the ends of justice meet to protect against the injustice that is conspicuous before the eyes of the Court and to ensure the role of the Supreme Court as the saviour of justice in this contemporary world.

End-Notes:
  1. State of Punjab v. Rafiq Masih, MANU/SC/0621/2014
  2. Chief Justice Bhagwati's view on ‘Domestic Application of Human Rights norms'
  3. A Theory of Justice, Rawls J., Harvard University Press (1971)
  4. Constitution of India, Article 142
  5. M. Siddiq v. Mahant Suresh Das, (2019) SCCOnline 1440
  6. Id. At 5
  7. Union Carbide Corporation v. Union of India, 1989 S.C.C. (2) 540
  8. Chandra Mohan v. State of Uttar Pradesh, MANU/UP/0048/1969
  9. Ashok Kumar Gupta v. State of Uttar Pradesh, MANU/SC/1176/1997
  10. Hon'ble Member of Constituent Assembly
  11. Volume VIII, Constituent Assembly Debates
  12. Id. At 10
  13. Id. At 11
  14. University of Kerala v. Council, Principals' Colleges, Kerala, MANU/SC/1834/2009
  15. Golak Nath v. State of Punjab, 1967 A.I.R. 1643
  16. Union of India v. State of Maharashtra, MANU/SC/1351/2019
  17. Manohar Lal Sharma v. Principal Secretary, (2014) 2 S.C.C. 532
  18. A.R. Antuley v. R.S. Nayak, (1998) 4 S.C.C. 409
  19. Laxmi Devi v. Satya Narayan, (1994) 5 S.C.C. 545
  20. State of Tamil Nadu v. K. Balu, (2016) SCCOnline S.C. 1487
  21. Id. At 7
  22. Supreme Court Bar Association v. Union of India, (1998) 4 S.C.C. 409
  23. Id. At 5
  24. Keisham Meghachandra Singh v. Hon'ble Speaker, Manipur Legislative Assembly, AIROnline 2020 S.C. 54: (2020) 2 SCALE 329
  25. Kihoto Hollohon v. Zachillhu , A.I.R. 1993 S.C. 412
  26. Munish Kakkar v. Nidhi Kakkar, A.I.R. 2020 S.C. 111
  27. M.C. Mehta v. Union of India, (1987) A.I.R. 1086
  28. Id. At 22

Written By:
  1. Hariharan R, Second Year B.Com.,Ll.B.(Hons.) - Sastra Deemed To Be University, Sastra Deemed To Be University
    Email Id: [email protected]
  2. Yugantara KSecond Year B.Com.,Ll.B.(Hons.) - Sastra Deemed To Be University, Sastra Deemed To Be University
    Email Id: [email protected]

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