Article-142 Constitution of India: A Double-Edged Sword:
Article 142 provides a unique power to the Supreme Court, to do "complete
justice" between the parties, where at times law or statute may not provide a
remedy i.e. it is conceived to meet situations which cannot be effectively
tackled by the existing provisions of law.
Article 142 provides for the "Enforcement of decrees and orders of the Supreme
Court and orders as to discovery".
The said Article is reproduced hereunder for readily reference:
"Enforcement of decrees and orders of Supreme Court and orders as to discovery,
- 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, and any decree so passed or order so made
shall be enforceable throughout the territory of India in such manner as may
be prescribed by or under any law made by Parliament and, until provision in
that behalf is so made, in such manner as the President may by order
- Subject to the provisions of any law made in this behalf by Parliament,
the Supreme Court shall, as respects the whole of the territory of India,
have all and every power to make any order for the purpose of securing the
attendance of any person, the discovery or production of any documents, or
the investigation or punishment of any contempt of itself."
Object behind Article 142
Article 142 of the Constitution of India provides a special and
extraordinary power to the Hon'ble Supreme Court to do complete justice to the
litigants who have suffered traversed illegality or injustice in the
Reason to incorporate Article 142
The framers of the Constitution felt that this provision is of
utmost significance to those people who have to suffer due to the delay in
getting their necessary reliefs due to the disadvantaged position of the
judicial system.. This Article gives almost unlimited powers to the Hon'ble
Article 142 confers plenary powers on the Hon'ble 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.
These powers are inherent in the Court and are complementary to those powers
which are conferred on the court by various statutes.
It was held in the case of Delhi Development Authority (DDA) v Skipper
Construction Co. P Ltd
(1996) that the fact that this unique power is
conferred only on the apex court, is itself gives the assurance that it will be
used with due restraint and circumspection, keeping in view the ultimate object
of doing complete justice between the parties.
The Hon'ble Supreme Court held in Supreme Court Bar Association vs Union of
(1998) that powers provided under Article 142 are supplementary,
complementary, and residuary to the powers particularly bestowed on the Supreme
Court, which may very well be exercised as long as it is equitable and just to
use it, and also, in particular, to make sure the strict adherence of due
process of law, to do complete justice between both the parties while
administering justice as per law.
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
it was held that the Hon'ble 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. Also, it was held in A.R. Antulay v. R.S.
Nayak 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.
Even in the Siddiq v. Mahant Suresh Das
popularly known as the Ayodhya
dispute, the Supreme Court had exercised the powers mentioned under Article 142
of the Constitution. It first refused to make two divisions of the land and it
entirely handed over 2.77 Acre of land to Hindus. But the court felt that it
would be an 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. Also, 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.
The Apex court of the country while considering the safety of people has invoked
its power under Article 142 for banning the sale of alcohol and to ensure that
liquor vends are not visible or directly accessible from the highway within a
stipulated distance of 500m from the outer edge of the highway, or from a
service lane along the highway. Such a decision was taken to avoid accidents
caused due to drink and drive.
Article 142 vis-a-vis PMLA:
The Hon'ble Supreme Court has invoked its plenary powers under
Article 142 while forming the single member committee to protect the interest of
the investors at large even in the PMLA Case namely; National Stock Exchange
Ltd. The Hon'ble Supreme Court observed that they are concerned with the
investors' money and properties remaining attached simplicitor cannot be a
solution for the investors' money for which decrees have been passed and thus,
only if those properties are liquidated, would the concerned Court be able to
distribute the monies.
In other words, the Hon'ble Supreme Court has exercised
its powers under Article 142 of the Constitution of India with the objective of
attaining a holistic solution for speedy recovery of the outstanding amounts to
be distributed to investors.
In view of the above, the Hon'ble Supreme Court has acted within the ambit of
plenary powers granted under Article 142 of the constitution of India in the
present PMLA case which is equitable and justified.
Article 142 of the Constitution of India is supplementary in nature and cannot
supplant the substantive provisions, though they are not limited by the
substantive provisions in the statute. It is a power that gives preference to
equity over law. It is a justice-oriented approach as against the strict rigours
of the law.
It is true that Article 142 has been invoked for the purpose of doing tremendous
good to large sections of the population and indeed to the nation as a whole.
The Supreme Court has perceived its role as one which would require it to 'wipe
away every tear from every eye', but perhaps it is time that the use of this
vast, unlimited power included checks and balances.