What is Article 142 and Important cases

Article 142 is constantly seen in the news in relation to various supreme court judgements. This article briefly points out what is article 142 and various cases that are pronounced based on this article.

What does Constitution say

    • Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc
    • ( 1 ) 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 orders 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 prescribe
    • (2) 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
      1. the purpose of securing the attendance of any person,
      2. the discovery or production of any documents,
      3. or the investigation or punishment of any contempt of itself

Back Ground

    • The interpretation of complete justice has not been consistent.
    • From 1963 to 1989, the interpretation of complete justice was that it cannot be adverted to, to defeat statutory provisions.
    • An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.”
    • Later:
    • This Court’s power under Article 142(1) to do ‘complete justice’ is entirely of different level and of a different quality. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of this Court.
    • Supreme Court Bar Association v. Union of India. It was said therein that the said article could not be used to supplant the existing law, but only to supplement the law.
    • But in Recent Times again lot of times seen in the news.

Important Cases

    • Cleansing of the Taj Mahal
    • Under trials rotting in jails for greater periods than the maximum punishment which could have been inflicted on them, With a single stroke of the pen, thousands of them were released.
    • Union Carbide case — relating to the victims of the Bhopal gas tragedy — where the Court felt a need to deviate from existing law to bring relief to the thousands of persons affected by the gas leak. In this judgment, the Supreme Court, while awarding compensation of $470 million to the victims, went to the extent of saying that to do complete justice, it could even override the laws made by Parliament
    • The coal block allocation case
    • The ban on the sale of alcohol along national and State highways
    • The transfer of cases filed against persons accused in the Babri Masjid demolition case
    • The Supreme Court has ordered against T Shayamkumar Singh, a minister in the Manipur government, against whom disqualification proceedings have been pending with the Speaker since 2017. Besides being removed from the Cabinet, he has been restrained from entering the Legislative Assembly till further orders.
    • Article 212 of the Constitution bars courts from inquiring into proceedings of the Legislature. In this case, however, prompted by the fact that the Speaker’s conduct has been called into question on several occasions, the Court said it was “constrained” to invoke the court’s extraordinary powers under Article 142 of the Constitution.
    • Tenth Schedule and Defection
    • Judgment on Ayodhya case
      • The phrase ‘is necessary for doing complete justice’ is of a wide amplitude and encompasses a power of equity which is employed when the strict application of the law is inadequate to produce a just outcome.
      • Grant divorce in a case of “irretrievable breakdown of marriage”.
        • Currently, Hindu marriage law does not include “irretrievable breakdown of marriage” as a ground for divorce. However, the apex court in a number of cases has provided the said relief using its extraordinary powers that allow it to do “complete justice”.
        • It believed that “not only is the continuity of this marriage fruitless, but it is causing further emotional trauma and disturbance to both the parties”, and “the sooner this comes to an end, the better it would be, for both the parties”.
        • The Law Commission of India has twice recommended that “irretrievable breakdown” of marriage be included as a new ground for granting divorce to Hindus under the provisions of the Hindu Marriage Act and the Special Marriage Act.
    • In 1984, the court set guidelines for adoption of orphans by foreigners.
    • In 1997, the court drafted the Vishaka judgment.
    • A judicial magistrate can order an accused to give his voice samples even against his consent in the course of a criminal investigation.
      • The court also observed that the fundamental right to privacy cannot be construed as absolute and must bow down to compelling public interest.
    • lack of consensus among constitutional authorities in Uttar Pradesh, the Supreme Court invoked its extraordinary powers to assume authority and appoint the State’s Lokayukta.
    • Set up a three-member committee, headed by former Chief Justice of India R.M. Lodha, to oversee the functioning of the Medical Council of India (MCI)

Issues

    • Judiciary cannot be held accountable for its decisions.
      • Lot of issues like EODB, loss of livelihood etc spill over effects not considered.
    • Judicial Over reach and activism.
      • “Judicial censorship“. Judicial censorship is suo motu judicial action restricting the freedom of speech, in the absence of an existing law. In my view, judicial censorship is not contemplated by the Constitution, and judicial orders that engage in this form of censorship are illegal and void. [National Anthem Case]

Way Forward

    • Separation of powers should be respected.
    • Article 142 should be referred to a Constitution Bench of at least five judges so that this exercise of discretion.
    • There must be strong and cogent reasons for exercising powers under Article 142 for complete justice and to fill in lacuna or vacuum in law and not as part of regular exercise of jurisdiction of the court.

Take Away

  • The view that Article 142 is a provision of procedure and therefore the interpretation put on “complete justice” to the effect that statutory provisions may be overridden, is clearly erroneous.
  • Prem Chand Garg v. Excise Commr., U.P., Allahabad
  • “It may be pertinent to point out that the wide powers which are given to this Court for doing complete justice between the parties, can be used by this Court, for instance, in adding parties to the proceedings pending before it, or in admitting additional evidence, or in remanding the case, or in allowing a new point to be taken for the first time. It is plain that in exercising these and similar other powers, this Court would not be bound by the relevant provisions of procedure if it is satisfied that a departure from the said procedure is necessary to do complete justice between the parties.”
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