Extraordinary Powers of the Supreme Court under Article 142

Introduction

As Marcus Cicero aptly puts it, “Great is our admiration of the orator who speaks with fluency and discretion.” Yet, this admiration comes with a cost and that cost is - a sense of caution – the necessity of restraint. The existence of discretion ought to be balanced against a sense of responsibility that not just defines its scope, but also acts as a guiding principle; that provides directions as to when and how it is to be exercised. Therefore, while tempering justice with mercy, the Court has to be very vigilant that it has to do justice in exact conformity to some obligatory law for the reason that human actions are found to be just or unjust as they are in conformity with or in opposition to the law.

The Court in the exercise of its jurisdiction is entitled to pass any decree, or make any order, as is necessary for doing complete justice in any cause or matter pending before it. This is what Article 142 of the constitution entails. In the light of the invocation of article 142 by the Apex Court frequently, our mind warrants this question that whether the aforementioned article is invoked to pass a decree or order which is in complete contravention of the substantive law. This article also examines the efficacy and necessitous nature of this power in amorphous cases where the provisions of the statute want to solve the coetaneous problems or to do complete justice.

Why is it needed?

A careful arrangement of the decisions invoking article 142(1) reveals that this power is engaged for two purposes-

1)To give a go-by to the procedural technicalities mandated by the statute;

2)To bring finality to a cause or matter at the time of passing the decree.

Some pundits believed that this provision was only used for procedural purposes. However, others believe that is has been practically raised by the Supreme Court as the new begetter of substantive power. In the first category are cases which demonstrate that fidelity to procedural technicalities may have adverse results, and the same can be given a go-by by invoking Article 142. In the second category are those cases where the apex court has passed pertinent orders to fill in the gaps where there is a vacuum in law. The substantive use of inherent power by the Court has met with criticism from all quarters. This assumption of role of ‘super legislature’ or ‘super executive’ is observed as a transgression from the principle of separation of powers. Thus, it becomes cardinal to scrutinize the lineament of Article 142 in both these circumstances to do ‘complete justice’ to this provision

Scope

The jurisdiction and powers of S.C. under article 142 are supplementary in nature. In Supreme Court Bar Association v. UOI[1],

‘the Court held that "the plenary powers under Article 142 are inherent in the Court and are complementary to those powers which are conferred explicitly by various statutes. Article 142 is curative in nature since it means to supplement and not supplant the substantive law. There are two approaches developed by the apex court to justify the open-ended interpretation of the Article 142’.

1). Restrictive Interpretation- Article 142 of the Constitution received its first significant interpretation in a closed, more balanced light. In Prem Chand Garg v. Excise Commissioner[2], U.P., a Constitution bench was faced with the question of whether the Supreme Court could frame a rule or issue an order which would be discordant with any of the fundamental rights. GAJENDRAGADKAR, J. answered the question unambiguously as:

‘though the powers conferred on this Court under Article 142(1) are vast, and the same can be exercised for doing complete justice in any case, this Court cannot even under Article 142(1) make an order plainly inconsistent with the express statutory provisions of substantive law, much less, inconsistent with any Constitutional provision’.

2). Broad Interpretation- The Supreme Court speaking through RANGANATH MISRA, C.J. added a rider circumscribing the power under Article 142 in the following manner:

Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142.

Landmark Judgements regarding the same.

In Delhi Judicial Service Association v. State of Gujarat[3], the Apex Court has observed that its power to do complete justice is entire of a different level and of different quality and that any prohibition or restriction contained in ordinary laws cannot act as a limitation.

Under the Section 6 of the Delhi Special Police Establishment Act, 1946, the power to extend the powers and jurisdiction of the Special Police Establishments to other areas is subject to the requirement of the consent of the Government of that State. Contrary to such statutory limitation, the Supreme Court of India on numerous occasions had found that, under Article 142(1), it could direct the Central Bureau of Investigation to investigate a cognizable offence committed within a State without the consent of the concerned State Government.[4]

In M.C.Mehta v. Kamal Nath[5]. The Court stated that the article cannot be pressed into service in a situation where action under that article would amount to contravention of the specific provisions of the act.

Criminal Justice- In Union Carbide Corporation v. Union of India[6], the S.C. held that under Article 142 coupled with Articles 32 and 136, the S.C. has jurisdiction to quash the criminal proceedings if on admitted facts no charge is made out against the accused, or if the proceedings are initiated on the concocted facts or false evidence, or if the proceedings are initiated for oblique purposes. In Dharma v Nirmal Singh Bitta[7], the Court argued that Article 142 confers power on it to pass any order even if it is against that section 401(3) of Criminal Procedure Code, 1973, until and unless it is doing justice.

Limitations

It is thus clear from the above discussion that there are only three restrictions on the exercise of this power-

(i) it can be exercised only when the Court is otherwise exercising its jurisdiction;

(ii) the order which the Court passes is necessary for doing complete justice in the cause or matter pending before it; and

(iii) an order made under Article 142(1) cannot contravene a constitutional provision though it may by-pass substantive provisions of the relevant statutory laws, if the Court feels it necessary. It has also been said by the Judge O'Connor of the United States SC that the greatest threat to the doctrine of separation of powers is "the constant uprising of the federal judicial power”.

Invoking Article 142 in Matrimonial Disputes

The propensity of the apex court to ignore, or override, the substance of a statute has been visible in a series of judgments relating to granting of divorce on the ground of "irretrievable breakdown of marriage" that found no mention in the Hindu Marriage Act, 1955 at the time of judgment. In a recent decision of the S.C. on 18th December 2019, the judges invoked Article 142 to grant divorce to the parties on the basis of the above mentioned ground and said "We, however, find that there are various judicial pronouncements where this Court, in exercise of its powers under Article 142 of the Constitution of India, has granted divorce on the ground of irretrievable breakdown of marriage; not only in cases where parties ultimately, before this Court, have agreed to do so but even otherwise. There is, thus, the realization of the ineffectuality of a completely failed marriage being continued only on paper".

Conclusion

Our Supreme Court, in pursuit of justice, knows no bounds, but in such pursuit, it must not lose sight of principles of institutional rectitude and judicial process. Of course, the application of law with didactic austerity is neither just nor justifiable, yet the judicial process must be mindful of the existing legal principles while invoking principles of uprightness to strike an accordant balance between the two. At this stage, it is felt pressing to delineate the stance adopted by the author. Article 142 of the Indian Constitution is a unique and dynamic measure that upholds the presence of justice in the Indian legal system. The fundamental importance of such "extraordinary power" is neither in question nor being undermined. The objective is only to examine and analyze the exercise of such extraordinary power, guaranteed by the Constitution of India, in an unconstrained manner.

References

1). AIR 1998 SC 1895

2). AIR 1963 SC 996

3). AIR 1991 SC 2176

4). Mohd Anis v. Union Of India (1994) Supp (1) SCC 145

5). (2000) 6 SCC 213

6). (1991) 4 SCC 584

7). AIR 1996 SC 1136

[Kunwar Bir Singh, a 3 rd year B.A.LL.B.(Hons.) student from University Institute of

Legal Studies, Panjab University, Chandigarh]