article 142 case study

Scope and issues related to SC’s power to do complete justice (Article 142)

Last Updated on Nov 3, 2023

Context: The Supreme Court, while using its extraordinary power under Article 142, ordered the appointment of a citizen as a postal assistant on a probationary basis in order to ensure complete justice for someone who had fought for it for nearly three decades.

Article 142

Enforcement of decrees and orders of Supreme Court and orders 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 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 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 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.

In simple terms, Article 142 empowers the Supreme Court (SC) to issue such orders or decrees as needed to achieve complete justice. This is a special and exclusive power granted to the SC by the constitution, which even the high courts do not possess.

Need of Article 142

The Constitution's framers believed this provision was crucial for those suffering due to judicial system delays.

To Fill the Legislative vacuum:

When there's a legal void for certain offenses, as seen in the Bhanwari Devi case in 2002, where there was no law addressing workplace sexual harassment , the SC introduced the Vishaka guidelines to ensure justice.

To Correct the Executive non-compliance:

The executive's non-compliance in Bihar during trials resulted in a high number of undertrials, leading to the SC’s intervention in the 1979 Hossainara Khatoon Case, the first Public Interest Litigation (PIL) in India .

About Supreme Court’s Power Under Article 142

These are SC's plenary powers for ensuring complete justice are inherent and complement its other constitutional and statutory powers.
These powers are of wide amplitude and are supplementary in nature.
No independent proceeding or procedure is required before the court seeking the application of such powers.
The application of such powers depends upon the discretion of the apex court.
The application of these powers cannot be done while ignoring or overriding the existing statutory or constitutional provisions .
These constitutional powers cannot, in any way, be controlled by any statutory provisions.

Article 142: Source of Judicial Legislation

Judicial legislation is the process by which judges create or modify laws. This can be done through the interpretation of law, or the issuance of judicial decrees.

Article 142 of the Indian Constitution gives the SC the power to issue any order or decree that it deems necessary to do complete justice, even if it is not specifically mentioned in the law.

Environmental Protection:

The SC issued directions to ensure green belts and open spaces, emphasising the importance of ecological balance in M C Mehta case of 1996.
Prohibited stone-crushing activities near residential complexes to safeguard public health in M C Mehta case of 1992.

Indigenous Rights:

Earmarked a portion of reserved forests for Adivasis to ensure their habitat and means of livelihood, recognising the importance of protecting indigenous communities in the Banwasi Seva Ashram case of 1993.

Public Health:

Compelled the municipal authorities of the Delhi Municipal Corporation to perform their statutory obligations for protecting the health of the community in B. L. Wadhera case of 1996.

Cultural Heritage:

Issued directions to regulate the level of air pollution around the Taj Mahal, recognising the need to protect cultural heritage sites in M. C. Mehta case of 1997.

Legislative Void Filling and Criminal Justice Reforms:

Filled legislative gaps in various areas such as inter-country adoption, sexual harassment at workplaces, ensuring the independence and autonomy of the Central Bureau of Investigation (CBI) in Vineet Narain case of 1998, arrest procedures, treatment of undertrials, and advance directives.

Women's Rights:

Addressed issues of sexual harassment at workplaces, thereby enhancing the protection of women's rights in the workplace. (Vishaka judgement)

Public Interest Litigation:

Emergence of PIL allowed the judiciary to play a pivotal role in safeguarding public interest, environmental conservation, human rights, and administrative accountability, often resulting in the government giving direction, forming guidelines etc.

Appointment and encroachment in executive domain:

Provided a procedure of the appointment of Election Commissioner of India and held that ECI shall be appointed by a committee in Anoop Baranwal case of 2023.

Issue with Judicial Legislation

Lack of Expertise: The Court is composed of judges who are experts in law, but they may not have the same expertise in policy or other areas that are relevant to law-making.
Lack of Legitimacy: Laws made by the Court are not subject to the same scrutiny and debate as laws passed by Parliament. This raises concerns about the legitimacy of judicial legislation.
Uncertainty: When the Court makes new laws or modifies existing ones, it can be difficult for people to know what the law is leading to uncertainty and confusion among citizens.
Hurts the doctrine of separation of power: Encroachment in the areas of legislative and executive domains create imbalance in the power of three organs of government and impact doctrine of separation of power.
Lack of accountability: The Constitution under collective responsibility makes the executive accountable to people’s mandate. Courts while legislating bypass such responsibility.

Ambiguity:

In certain cases SC gives direction, change or modify the application of law without clarifying whether it is under article 142 or not.
Subjective application in different cases by the court has created ambiguity, e.g., in NALSA court applied the article but in Sama sex marriage case it refused to apply it.

Judicial Restraints provided by the Court

In Prem Chand Garg Court, it was established that an order to ensure complete justice must align with both constitutional rights and relevant statutory laws.
In certain cases, SC held that it cannot be used to take away any fundamental rights and cannot supersede Article 32.
The possibility of a conflict between powers under article 142 and other provisions of the constitution necessitate application of the rule of harmonious construction.

Case Laws

In Justice K.S.Puttaswamy(Retd) vs Union Of India Court used Article 142 to expand the scope of the right to life and personal liberty to include the right to privacy.
In Vishaka and Others v. State of Rajasthan, Court used Article 142 to lay down guidelines for the prevention of sexual harassment at the workplace.

Way Forward

The primary purpose of Article 142 is to enable judges to alleviate the strict application of the law in situations where doing so is essential for the administration of justice.
In essence this power must always operate within the bounds of constitutional and statutory provisions. Going beyond these limits may lead to injustices rather than the delivery of justice itself.
The exercise of this power places a significant responsibility on the Supreme Court to use it with great care, keeping in mind democratic system and upholding the principles of justice, and constitutional values.

Article 142 should be invoked judiciously and with restraint. It is not a universal remedy for all legal issues. Supreme Court judges must neither become "good men not obeying the law too well," which means they can deviate from strict legal procedures when necessary for justice, nor should they turn into "knights errant roaming at will in pursuit of their own ideal of beauty or goodness," which would be considered an abuse of judicial discretion.

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The evolution of Article 142 and the fate of interim orders

Introduction

Article 142 of the Constitution of India empowers the Supreme Court to pass any decree or order necessary for doing complete justice in any case or matter pending before it. Over the years, the interpretation and applicability of Article 142 have evolved through various precedents. The recent judgment of a five-Judge Constitution Bench of the Supreme Court of India in High Court Bar Association, Allahabad v. the State of U.P. & Ors , (‘ Judgment ’) has brought significant developments to the legal landscape, particularly concerning the interpretation and application of Article 142 of the Constitution. The judgment has overturned the earlier judgment of Asian Resurfacing of Road Agency Pvt. Ltd.& Anr. v. CBI ( ‘Asian Resurfacing’) and has also addressed crucial aspects related to interim orders, apart from issuing new guidelines and laying down principles under Article 142.

The main issues for consideration were the High Court's authority to vacate or modify an interim order and whether an interim order can automatically come to an end upon expiry of a specific time. The apex court had earlier dealt with the same issue in the case of Asian Resurfacing wherein it was held that an interim order, unless extended, automatically comes to an end after a period of six (6) months from the date of such order.

Observations of the Court

The Supreme Court revisited and overturned its dictum laid down in Asian Resurfacing and while doing so it reconsidered certain views expressed by it, specifically in paragraph no.s 36-37 thereof.

The Court has held that the condition of automatic expiry of interim orders upon lapse of time as held in Asian Resurfacing was unsustainable, and hence, overruled the same.

The Court laid down guidelines and principles regarding the scope of exercising its jurisdiction under Article 142 and clarified whether a court can fix any time limit while passing interlocutory orders which are passed in aid of final reliefs. The Court emphasized that the power under Article 142 should not be used to defeat the principles of natural justice or supplant the substantive rights of litigants. It underscored the importance of ensuring complete justice between the parties without overstepping the boundaries of statutory provisions or infringing fundamental rights.

Furthermore, the Court clarified that the jurisdiction under Article 142 should be invoked judiciously and only in extraordinary circumstances to address specific situations requiring immediate attention for the fair and just resolution of disputes. The Court emphasized that the powers conferred by Article 142 are meant to further the cause of justice and secure complete justice and cannot be exercised dehors the principles of natural justice.

The Supreme Court threw light on the constitutional position of the High Courts and observed that the High Courts are not judicially subordinate to the Supreme Court. It further observed that the power of High Courts under Article 227 of the Constitution emphasizes their authority to oversee all courts within their jurisdiction, including the ability to stay their proceedings. It cautioned against issuing blanket directions under Article 142 that could encroach upon the High Court's jurisdiction to grant interim relief. Such constraints could undermine the High Courts' authority under Article 227, which is integral to the constitutional framework.

The Court while overruling the earlier dictum in Asian Resurfacing , observed that the filing of an application to lift a stay order and application of judicial mind by a court is a sine qua non for vacation of a stay order passed under Article 226(3). If this application is not decided within a prescribed period of two weeks, the stay order does not automatically expire. Instead, the stay order remains in effect until the said application for its vacation is disposed of, following principles of natural justice, with reasons.

The Supreme Court also held that courts should not impose rigid timelines for the disposal of cases unless there are exceptional circumstances; recognizing case complexities allows for a flexible approach to serve justice effectively.

Key guidelines and principles

The key principles laid down by the Supreme Court in the judgment are as follows:

(i) Vacation of Interim Orders: Interim orders will not automatically lapse based on time. The court must assess the merits of the case and the litigants' rights before vacating such interim orders to uphold justice and protect rights.

(ii) Parameters for exercising powers under Article 142:

Jurisdiction : The powers under Article 142 can be exercised by the court to do complete justice for the parties before it, but in doing so the court shall not nullify valid judicial orders passed in favour of other litigants in other jurisdictions.

Substantive Rights : The powers of the court under Article 142 should not override substantive law. The court must respect litigants' substantive rights within its jurisdiction, preserving legal integrity.

Natural Justice : The powers of the court under Article 142 must not undermine principles of natural justice. Litigants have a right to be heard before adverse orders are passed, including vacating of stay orders, thus ensuring fairness.

The evolution of Article 142 through this judgment has brought about important changes in the interpretation and its applicability in this era of evolving jurisprudence. The new guidelines and principles set by the Supreme Court emphasize the importance of considering the merits of the case, protecting substantive rights, and upholding the principles of fairness and natural justice. These developments contribute to the ongoing evolution of India's legal system and the pursuit of justice for all.

The judgment sets a precedent for a balanced and nuanced approach to the exercise of judicial powers, emphasizing the need for a meticulous application of legal principles while upholding the core tenets of justice and fairness. However, it is yet to be seen how the infinite operation of stay orders and this judgment impacts the disposal of cases.

About the authors: Ishwar Ahuja is a Principal Associate and Bhairavi SN is a Senior Associate at Saga Legal. Ishaan Aggarwal, Intern, assisted on this article.

Disclaimer: The views and opinions expressed in this article are those of the author(s) alone and are meant to provide the readers with an understanding of the judgment passed in High Court Bar Association, Allahabad v. the State of U.P. & Ors. The contents of the aforesaid article do not necessarily reflect the official position of Saga Legal. The readers are suggested to obtain specific opinions/ advice with respect to their individual case(s) from professionals/ experts and not to use this article in place of expert legal advice.

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Article 142 of the Indian Constitution

The Supreme Court recently directed sale of ancestral property of a man to pay arrears of maintenance of Rs. 1.25 Crores to his wife under its inherent powers under Article 142.

About article 142 of the indian constitution.

It deals with the Supreme Court's power to exercise its jurisdiction and pass an order for doing complete justice in any cause or matter pending before it.
It provides the apex court with a special and extraordinary power and is meant to provide justice to litigants who have suffered traversed illegality or injustice in the course of legal proceedings.
Article 142(1) states that “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 prescribe”.
Article 142 allows the Supreme Court to deliver justice in exceptional cases where existing provisions or laws are not applicable.
If a legislative enactment seeks to make unenforceable the decree or order of the Supreme Court made under Article 142, in relation to the cause and the parties between whom it was made, such law would be void for contravening Article 142[8].
Babri Masjid Case: The article was used in the Ram Janmabhoomi-Babri Masjid land dispute case and was instrumental in the handover of the disputed land to a trust to be formed by the union government.
Bhopal Gas Tragedy: The SC invoked its plenary powers in the Union Carbide vs Union Govt case and intervened to provide compensation to victims of the deadly Bhopal Gas Tragedy.

Q1) What is Article 144 of the Constitution of India?

This article empowers the Supreme Court of India as the highest judicial authority in the country and mandates that all civil and judicial authorities within the territory of India must assist and act in conformity with the decisions and orders of the Supreme Court.

Source: [Article 142] Supreme Court Issues Directions For Sale And Attachment Of Assets To Clear Arrears Of Maintenance To Woman Abandoned By Husband

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What is Article 142?

Topics Covered: Indian Constitution- historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

What to study? For Prelims: Overview and applicability of Article 142. For Mains: Need for and significance of these powers for the Supreme Court.

Context : In an extraordinary display of its constitutional powers under Article 142 of the Indian Constitution, the Supreme Court has stripped Manipur Cabinet Minister T. Shyamkumar, who is facing disqualification proceedings for defection, of his office and banned him from entering the Assembly with immediate effect.

What’s the issue?

The apex court took this decision after Speaker Y. Khemchand Singh, even after the one month”s period given by the apex court, failed to decide on the disqualification petition pending against Shyamkumar. Instead, the Speaker sought adjournment for eight weeks on the matter.

Article 142 “provide(s) 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.

Article 142(1) states that “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 prescribe”.

Insta Link:

Prelims Link:

Disqualification of MLAs under 10 th
Exceptions under the schedule.
Examples of invocation of Article 142 by the Supreme Court.
Similar powers to High Courts.
Original vs Appellate jurisdictions.
Judicial review of Speaker’s decisions.

Mains Link:

“The Supreme Court’s use of its vast powers under the Article 142 has done tremendous good to many deprived sections. However, it is time to institute checks and balances.” Discuss.

Sources: the Hindu.

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Explained: What Is Article 142 And The Recent Ruling Of SC On It

The Indian Supreme Court has ruled under Article 142 that lawyers and professionals with a minimum of 10 years of experience can be appointed as President and member of the state consumer commission and district forums.

This decision was made in response to the Bombay High Court's ruling, which rejected the Consumer Protection Rules, 2020, requiring a minimum of 20 and 15 years of professional experience for adjudicating members of State consumer commissions and District forums.

What has SC ruled?

The Court's ruling pertains to the amendment of the Consumer Protection (Qualification for appointment, method of recruitment, procedure of appointment, term of office, resignation and removal of President and Members of State Commission and District Commission) Rules, 2020.

The ruling specifies that the Central and State governments must amend the rules to lower the experience requirement to ten years for the appointment of the President and members of the State Commission and District forums. Currently, the requirement is twenty years and fifteen years, respectively.

The ruling further states that until the amendments are made, lawyers and professionals with a bachelor's degree and ten years of experience in fields such as consumer affairs, law, public affairs, administration, economics, commerce, industry, finance, management, engineering, technology, public health or medicine are eligible for appointment as President and members of the state consumer commission and district forums.

In addition to this, the Court has introduced written exams and viva voce to assess the candidates' performance.

What is Article 142?

Article 142 is a unique provision in the Indian Constitution that grants discretionary power to the Supreme Court of India to pass any order necessary for doing complete justice in any matter or cause before it.

This means that the Supreme Court can pass any order, even if it is not explicitly provided for in the existing laws, to ensure that justice is done in a particular case.

The scope of Article 142 is broad, and it has been used by the Supreme Court to grant relief in various cases where traditional legal remedies were inadequate. This provision has been used in cases of public interest, where the court has had to intervene to bring about systemic change, such as in the cleansing of the Taj Mahal and the protection of the environment.

In the early years of the evolution of Article 142, the Supreme Court invoked this provision to bring about social justice and protect the rights of the underprivileged.

Criticisms of judicial overreach

In recent years, there have been cases where the Supreme Court has been criticized for judicial overreach, where it has encroached on areas traditionally reserved for the executive or legislative branches of government. This goes against the doctrine of "separation of powers" which is a fundamental principle of the Constitution.

One such example of this is the ban on the sale of alcohol along national and state highways.

While the notification by the central government only prohibited liquor stores along National Highways, the Supreme Court went further and implemented a ban within a distance of 500 meters from the highway by invoking Article 142, which gives the court discretionary powers to pass any order necessary for doing complete justice.

The court also extended this ban to state highways, even in the absence of any similar notification by state governments. This judgment has led to a debate over whether the court is overstepping its bounds and ignoring the principle of federalism, where states have the right to make their own laws.

Critics argue that such judgments have created uncertainty about the discretion vested in the court to invoke Article 142, where even the fundamental rights of individuals are being ignored.

This has led to calls for greater accountability and transparency in the court's decision-making process, and a clearer delineation of the roles and powers of different branches of government to prevent future cases of judicial overreach.

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Article 142 – Complete justice

July 14, 2022

Governance , Indian Polity & Constitution

Context: The futility of the bail order granted by Supreme Court to Mohammed Zubair has bought the focus on Complete Justice as stipulated in Article 142 of Indian Constitution.

Article 142 – It stated that any decree or order passed by the Supreme Court to do complete justice was enforceable throughout the territory of India .

Powers and Challenges of Supreme Court

The Supreme Court of India is regarded as the world’s most powerful top court , on account of its wide power of judicial review .
It has the jurisdiction to issue writs under Article 32 of the Constitution .
It also has the original jurisdiction under Article 131 of the Constitution .
There is also wide appellate power under Articles 132, 133, 134 and 136 of the Constitution.
It has the power to “make such order as is necessary for doing complete justice in any cause or matter pending before it”, as per Article 142 of the Constitution.
Yet, the top court has shown itself to be helpless when issues of individual liberty have been placed before it on very many occasions.
The jail jurisprudence of the executive effectively surpasses the Court’s bail jurisdiction .
The executive is able to register multiple FIRs in different States of India so as to ensure that the dissident is not released from prison even if bail is granted in some of the cases.

Rule by law

The criminal justice system in tough times degenerates into rule by law that replaces rule of law .
The law becomes an effective device in the hands of the Government for the purposes of a witch-hunt and this operates against the opponents of a regime.
Rule by law indicates that decisions are forced upon a citizenry, while Rule of law is to control the unlimited exercise of the power by the supreme lawmaking authority of the land.
A constitutional court should be able to evolve a mechanism of its own to preserve the democratic foundation of the country by intervening in the incremental process of nation’s “deconstitutionalisation”.

Create Judicial Atmosphere

Top court must act as a determined umpire who checks the executive’s excesses .
The Supreme Court’s intervention in the Centre’s COVID-19 vaccine policy and the Pegasus episode illustrates this point.
The need is to expand the latter approach and to create and perpetuate a democratic judicial atmosphere that supports the cause of freedom.
The Indian Supreme Court is constitutionally equipped with the power to invoke its jurisdiction for the larger cause of liberty, even by deviating from the conventional technical route.
The “complete justice” under Article 142 is meant to be used such scenarios
In Delhi Development Authority vs Skipper Construction Company (1996), the top court said that the power under Article 142 should remain “undefined and uncatalogued, so that it remains elastic enough to be moulded to suit the given situation”.

Treating them as a class

It is essential for the Supreme Court of India to treat political prisoners and dissenters facing multiple FIRs and undergoing unjustifiably long incarceration as a class .
It needs jurisprudence at the normative level to tackle the technical arguments that create a false notion of rule of law
The Court should immediately ensure that vindictive incarceration does not continue even for a day.

The present case is one that demonstrates the juridical deficits of today’s Supreme Court. It is, therefore, an imperative to evolve an effective jurisprudence of “complete justice” by focusing on personal liberty, and thus preserving the country’s democratic legacy.

Source: The Hindu

Previous Year Question

Q.1) With reference to the Constitution of India, prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following? (2020)

The decisions taken by the. Election Commission of India while discharging its duties cannot be challenged in any court of law.
The Supreme Court of India is not constrained in the exercise of its powers by the laws made by Parliament.
In the event of grave financial crisis in the country, the President of India can declare Financial Emergency without the counsel from the Cabinet.
State Legislatures cannot make laws on certain matters without the concurrence of Union Legislature.

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Rationalising “Complete Justice” under Article 142

by Ninad Laud†

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This article traces the origins of Article 142 of the Constitution of India, the etymology of the phrase “complete justice” and the underlying inspiration it draws from a concept of British Indian vintage-justice, equity and good conscience. Article 142 has been employed by the Supreme Court in myriad situations. The Court has deliberately left its contours undefined, so as to allow for flexibility to deal with future exigencies. This article argues that though the power should indeed remain undefined, when invoked in derogation of statutory provisions or dehors the statutory regime governing a situation, it must necessarily be accompanied by the formulation of a principle or spelling out of a rational justification, which will operate as a precedent. This alone will lead to rationalising its use and negate the uncertainty associated with its exercise in this manner.

“ Paradoxically, the greatest danger to the administration of justice and constitutional interpretation arises from the genuine desire of Judges to do justice in each individual case .”

— H.M. Seervai 1

INTRODUCTION

Article 142 of the Constitution of India, which by its phraseology is a seemingly benign procedural adjunct to the Supreme Court’s powers, has emerged as the most potent devices employed by the court in judicial activism and judicial innovation. It has in fact become a new source of substantive power. 2 This article traces its origins, evolution, and then recounts the debate surrounding its use in derogation of express statutory provisions. This power has been exercised in varied situations but, broadly speaking, in two manners: the first being to grant relief to do “complete justice” in a given case dehors the applicable statutory provisions and second, to issue directions to fill, what the court perceives as “legislative gaps”, which directions operate as the law of the land until such time that the legislature or the executive steps in.

The focus of this article is on the former of the two exercises. While tracing such exercise in the context of equity jurisdiction to “particular equity”, and justifying such exercise, this article only takes exception to the Court’s practice of expressly adding that the relief it has granted in a specific case is not to be treated as a precedent. While it is elementary that a judgment is a precedent only to the extent of its ratio decidendi (and not every direction or observation), the final court of the country, that declares law under Article 141 of the Constitution, ought to be obligated to supply a rational justification for its directions aimed at doing “complete justice”.

Granting relief or issuing directions without any reasoning or spelling out the underlying basis, rationale or principle, for posterity, not only does violence to the doctrine of precedent, but also introduces an element of uncertainty in the judicial process. This uncertainty has a bearing on: ( i ) how citizens conduct themselves, including in adhering to the statutory law, ( ii ) also what outcome their litigation will have and above all ( iii ) the deference shown by parties to judicial directions i.e. their compliance. Such unreasoned orders, which are statedly contrary to the statutory law, also obscure the legal standards and mandates that are otherwise devoid of any ambiguity as to their manner of compliance. For a litigant, this uncertainty translates into an exercise of chance, which inherently breeds more speculative litigation, adding to the already overburdened docket of the Supreme Court.

Hence, while it is not advisable and perhaps impossible to give an all-encompassing normative prescription for the manner of and circumstances for the exercise of the power under Article 142, particular equity cannot be countenanced in the absence of underlying reasoning, basis or principle, whether pre-existent or otherwise.

Read the complete article HERE

*The article has been published with kind permission of Eastern Book Company. Cite as (2021) 1 SCC J-30

† The author is a lawyer practising at the Supreme Court of India.

1 H.M. Seervai, Constitutional Law in India (2010), xxv.

2 Justice Ruma Pal and Samaraditya Pal (Eds.), M.P. Jain’s Indian Constitutional Law, (6th Edn., Economy Paperback Reprint, 2010), p. 281.

3 Bangladesh Constitution, Article 104.

4 Nepal Constitution. 2015, Article 133(3); See also Nepal Constitution 1990, Article 88(2).

5 Kalyan Chandra Sarkar v. Rajesh Ranjan , (2005) 3 SCC 284 , para 32.

6 Government of India Act, 1935, Section 209.

7 B. Shiva Rao, The Framing of India’s Constitution: Select Documents, 209 (2010), Notes on certain clauses by Alladi Krishnaswami Ayyar.

8 Id at p. 389.

9 Constituent Assembly Debates, Vol. VIII at p. 639.

10 State v. Kalyan Singh , (2017) 7 SCC 444 , para 22.

11 Rambhau Ganpat Koshire v. Sardarshingh Rupsingh Ture , 2013 SCC OnLine Bom 673 : (2013) 5 Bom CR 44.

12 Justice Ruma Pal and Samaraditya Pal (Eds.), M.P. Jain’s Indian Constitutional Law, (6th Edn., Economy Paperback Reprint, 2010), p. 210.

13 R. Prakash, “Complete Justice Under Article 142”, (2001) 7 SCC J-14 at p. 19.

14 Bhinka v. Charan Singh , AIR 1959 SC 960 .

15 Rambux Chittangeo v. Modoosoodhun Paul Chowdhury , 1867 SCC OnLine Cal 18 : (1867-74) Supp BLR 675 in Kshirodebihari Datta v. Mangobinda Panda , 1934 SCC OnLine Cal 65 : AIR 1934 Cal 682.

16 Government of India Act, 1935, Section 209. C.K. Allen, Law in the Making (Clarendon Press, Oxford, 1927). The book originated in the Tagore Lectures delivered in Calcutta in 1926 titled Sources of Law.

17 1615 Ch Rep 1 : 21 ER 485.

18 Sarah Worthington, Equity, (2nd Edn., Clarendon Law Series, Oxford University Press, 2006).

19 C.K. Allen, Law in the Making (Clarendon Press, Oxford, 1927). The book originated in the Tagore Lectures delivered in Calcutta in 1926 titled Sources of Law, at p. 197.

20 Id at p. 232.

21 Rebecca M.M. Wallace, International Law – A Student Introduction, (2nd Edn., 2nd Indian Reprint, 1995).

22 Motilal Setalvad, The Common Law in India, Hamlyn Law Lectures, Series 12, 1960, 2nd Edn. at p. 56.

23 Sir Frederick Pollock, The Law of Fraud, Misrepresentation and Mistake in British India, Tagore Law Lectures (1894).

24 Motilal Setalvad, The Common Law in India, Hamlyn Law Lectures, Series 12, 1960, 2nd Edn., at p. 59.

25 Herbert Cowell, The History and Constitution of the Courts and Legislative Authorities in India, Tagore Law Lectures (1872).

26 Sripati Roy, Customs and Customary Law in British India, Tagore Law Lectures (1908).

27 See the Bengal Civil Courts Act, 1871, p. 24; The Oudh Civil Courts Act, 1871, p. 31; The Punjab Laws Act, 1872, p. 6; The Burma Courts Act, 1872, p. 6; The Madras Civil Courts Act, 1873, p. 16 cl. (c); The Central Provinces Laws Act, 1875, p. 6; The Burma Courts Act, 1875, p. 4; The Oudh Laws Act, 1876, p. 3 cl. (g); The Bengal, Agra and Assam Civil Courts Act, 1887, p. 37 cl. (2).

28 1887 SCC OnLine PC 7 : (1886-87) 14 IA 89 at p. 96 per Lord Hobhouse.

29 Rashbehary Ghose, The Law of Mortgage in India, Tagore Law Lectures (1875), Lecture IX.

30 (2020) 1 SCC 1 at p. 659.

31 (1976) 2 SCC 103 at p. 114.

32 (1995) 3 SCC 635 at p. 647, para 22.

33 (2011) 8 SCC 161 at p. 245.

34 1972 SCC OnLine Del 22 : ILR (1972) 1 Del 601 at p. 614.

35 M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das , (2020) 1 SCC 1 at p. 662.

36 B. Shiva Rao, The Framing of India’s Constitution Select Documents, 209 (2010), Notes on certain clauses by Alladi Krishnaswami Ayyar at pp. 57, 58.

37 (1980) 3 SCC 545 at p. 550.

38 Gopal L. Raheja v. Vijay B. Raheja , 2007 SCC OnLine Bom 399 : (2007) 4 Bom CR 288 at p. 302, para 49.

39 (2019) 10 SCC 395 at p. 406 paras 37, 38.

40 Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjibhai Mody , (1964) 3 SCR 480 : AIR 1964 SC 345.

41 S.S. Balu v. State of Kerala , (2009) 2 SCC 479 .

42 D.C.M. Ltd. v. Union of India , (1996) 5 SCC 468 .

43 Sikkim Subba Associates v. State of Sikkim , (2001) 5 SCC 629 .

44 (1984) 2 SCC 50 at p. 57.

45 (1584) 3 Co Rep 7a : 76 ER 637.

46 Black’s Law Dictionary , (11th Edn., 2019), p. 1195.

47 Yakub Abdul Razak Memon v. State of Maharashtra , (2013) 13 SCC 1 at p. 65.

48 (1961) 1 SCR 884 , para 8.

49 Ranglal v. Munjaji , 1953 SCC OnLine Hyd 64 : AIR 1956 Hyd 29, Mohd. Gulam. Rabbani v. Bankipora Hari Sabha , 1973 SCC OnLine Pat 77 : AIR 1973 Pat 358.

50 (2011) 11 SCC 275 at p. 283.

51 (1977) 4 SCC 551 .

52 (2011) 14 SCC 770 at p. 798.

53 (2012) 10 SCC 303 at p. 339.

54 Sanchalakshri v. Vijayakumar Raghuvir Prasad Mehta , (1998) 8 SCC 245 at p. 249.

55 C.M. Singh v. H.P. Krishi Vishwa Vidyalaya , (1999) 9 SCC 40 at p. 42; Anil Kumar Jain v. Maya Jain , (2009) 10 SCC 415 at p. 423.

56 AIR 1963 SC 996 .

57 Id, at para 14.

58 AIR 1967 SC 1643 , at para 51, per Subba Rao, J. This aspect remains untouched by the decision in Kesavananda Bharati v. State of Kerala , (1973) 4 SCC 225 which overruled the judgment on the aspect of whether constitutional provisions guaranteeing fundamental rights could be amended.

59 (1988) 2 SCC 602 , at para 206, per Ranganathan, J. who was in the majority.

60 (1991) 4 SCC 406 at p. 462.

61 (1991) 4 SCC 584 .

62 Id, at para 83.

63 Id, para 84, per Ranganath Mishra, J.

64 (1996) 4 SCC 622 per Jeevan Reddy, J.

65 1994 Supp (1) SCC 145.

66 1995 Supp (3) SCC 128 at p. 132.

67 (1998) 4 SCC 409 at p. 437.

68 Supreme Court Bar Assn. case, (1998) 4 SCC 409 , 438, Id, para 56.

69 Id, 432, para 47.

70 Supreme Court Bar Assn. case, (1998) 4 SCC 409 , 432, para 48.

71 (2013) 8 SCC 154 at p. 186.

72 (2014) 8 SCC 883 at p. 890, para 12.

73 M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das , (2020) 1 SCC 1 at p. 664.

74 Ronald Dworkin, “Hard Cases”, Harvard Law Review, Vol. 88, No. 6 (April 1975), pp. 1057-1109 available at < https://www.jstor.org/stable/1340249 >.

75 Vishaka v. State of Rajasthan , (1997) 6 SCC 241 .

76 (1997) 6 SCC 241 .

77 Id, para 15.

78 See e.g. Lakshmi Kant Pandey v. Union of India , (1984) 2 SCC 244 ; Vishaka v. State of Rajasthan , (1997) 6 SCC 241 ; Delhi Judicial Service Assn. v. State of Gujarat , (1991) 4 SCC 406 .

79 (1998) 1 SCC 226 .

80 Vineet Narain v. Union of India , (1998) 1 SCC 226 , Id, para 51.

81 See e.g. Bandhua Mukti Morcha v. Union of India , (1984) 3 SCC 161 .

82 Id at p. 187.

83 Id at p. 192; Nain Sukh Das v. State of U.P. , AIR 1953 SC 384.

84 Justice C.K. Thakker and M.C. Thakker (Eds.), V.G. Ramachandran’s Law of Writs , (6th Edn., 2006), p. 171.

85 Monica Kumar v. State of U.P. , (2008) 8 SCC 781 at p. 801.

86 (1982) 2 SCC 101.

87 Ed.: Despite the above cogent arguments as to the breadth of the power available to the Supreme Court under Article 142, it is still worth contemplating the relevant portion of the bare text of Article 32(2) of the Constitution, which does appear to confer nearly plenary power on the Supreme Court to issue directions for the enforcement of fundamental rights, which would appear to include the power to issue legislative directions as well:

Article 32(2) The Supreme Court shall have power to issue directions … for the enforcement of any of the rights conferred by this Part.

(emphasis supplied)

As correctly argued in this article, there will be situations wherein the Supreme Court would not be able to have recourse to Article 32, as fundamental rights may not be involved, yet so many of the clearly legislative directions of the Supreme Court purportedly issued under Article 142 following Vishaka, (1997) 6 SCC 241, it is respectfully submitted, can be put on a far more sound and justifiable constitutional, legal and jurisprudential basis if their source is located in Article 32 and not Article 142. When these legislative directions are purported to be given in exercise of power under Article 142, the judicially crafted legislation must be justified on a judicial interpretation of Article 142. Whereas, were Article 32(2) to be invoked, in those cases where it certainly could have been so invoked, its bare text provides for the giving of such directions: thus providing a direct constitutional basis for such legislative directions.

88 (1996) 4 SCC 622 .

89 (1997) 5 SCC 201 .

90 P.J. Fitzgerald, Salmond on Jurisprudence (12th Edn., Universal Law Publishing Co., 2004) 145.

91 [1975] 1 WLR 1338 : 1975 EWCA Civ. 3 (CA).

92 (1996) 10 SCC 193 at p. 222.

93 Cognizance for Extension of Limitation, In re , 2020 SCC OnLine SC 343 .

94 (2005) 3 SCC 150 .

95 Sanjay Lakhe Patil v. Maharashtra State Legislative Assembly , 2014 SCC OnLine Bom 2489 .

96 Union of India v. Harish Chandra Singh Rawat , (2016) 16 SCC 744 , Chandrakant Kavlekar v. Union of India , (2017) 3 SCC 758, G. Parmeshwara v. Union of India , (2018) 16 SCC 46, Shiv Sena v. Union of India , (2019) 10 SCC 809.

97 2020 SCC OnLine SC 55 .

98 Keisham Meghachandra Singh v. Manipur Legislative Assembly , 2020 SCC OnLine SC 617 .

99 Government of India Act, 1935, at p. 209.

100 M.C. Mehta v. Union of India , (2009) 6 SCC 142 .

101 A set of guidelines and instructions related to the import or export of goods notified by the Government of India under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992.

102 Bharat Petroleum Corpn. Ltd. v. P. Kesavan , (2004) 9 SCC 772 ; Indian Council of Agricultural Research v. A.N. Lahiri , (1997) 10 SCC 691; Chief Secy. v. Students of A.P.A.U. , (2005) 12 SCC 448; Central Marine Fisheries Research Institute v. A. Kanakkan , (2009) 17 SCC 253.

103 (1994) 2 SCC 630 .

104 State of Punjab v. Surinder Kumar , (1992) 1 SCC 489 ; Indian Bank v. ABS Marine Products (P) Ltd. , (2006) 5 SCC 72 ; Ram Pravesh Singh v. State of Bihar , (2006) 8 SCC 381; State of U.P. v. Neeraj Awasthi , (2006) 1 SCC 667 and Indian Drugs & Pharmaceuticals Ltd. v. Workmen , (2007) 1 SCC 408.

105 (2014) 8 SCC 883 at p. 890.

106 R.V. Raveendran, “Precedents-Boon or Bane?” (2015) 8 SCC J-1 at J-18.

107 2020 SCC OnLine SC 367.

108 (2006) 4 SCC 1 at p. 24.

109 (2014) 6 SCC 466 at p. 480.

110 K. Ajit Babu v. Union of India , (1997) 6 SCC 473 at p. 477.

111 Karnataka SRTC v. Mahadeva Shetty , (2003) 7 SCC 197 at p. 206.

112 1965 A.C. 1001 (HL).

113 Id, 1021 (per Lord Reed).

114 (1989) 2 SCC 754 at p. 766.

115 HLA Hart, The Concept of Law 272 (2nd Edn., Oxford: Clarendon Press, 2005).

116 N.E. Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights 87 (2003).

117 Precedent in English Law, Cross and Harris 222 (4th Edn., Clarendon Law Series, Oxford University Press, 2007).

118 HLA Hart, The Concept of Law 272 (2nd Edn., Oxford: Clarendon Press, 2005) at p. 273.

119 Id, 274.

120 Black’s Law Dictionary , p. 860 (11th Edn., 2019).

121 Ronald Dworkin, Taking Rights Seriously 37 (Harvard University Press, 1977).

122 115 NY 506 (1889). In this New York case, one Mrs Riggs had bequeathed property to Mr Palmer, her nephew. The nephew murdered his aunt to obviate any change in the bequest. The Court held that notwithstanding the fact that on a strict reading of the letter of the law, Mr Palmer would have been entitled to his share under the will, the court shall not allow him to take the same. Thus, the Court went against the letter of the law in view of equitable considerations.

123 N.E. Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights 87 (2003) at p. 99.

124 Id, at p. 105.

125 A. Barak, Purposive Interpretation in Law, pp. 210-211 (2007).

126 H.R. Khanna, Judiciary in India and Judicial Process, p. 55 (1985).

127 Id at p. 56.

128 1904 SCC OnLine US SC 63 : 48 L.Ed. 679 : 193 US 197 (1904).

129 Samuel Harvey Reynold, The Table Talk of John Selden, pp. 60-61 (1892).

130 Motilal Setalvad, The Common Law in India, Hamlyn Law Lectures, Series 12, 1960, 2nd Edn. at p. 31.

131 Vicaji J. Taraporevala, Tales from the Bar & the Bench 4 (2010).

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Well written, detailed article tracing the principle of equity in all aspects and analysis of relevant case law. Everyone in the field of law should read the article. Prof.A. Subrahmanyam, Retired Professor of Law

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Sketching the Limits of Article 142 of the Constitution of India: A Constitutional Necessity

Kumar, S. (2020). Sketching the Limits of Article 142 of the Constitution of India: A Constitutional Necessity. In S. Khurshid, S. Luthra, L. Malik, & S. Bedi (Eds.), Judicial Review: Process, Powers, and Problems (Essays in Honour of Upendra Baxi) (pp. 365-383). Cambridge: Cambridge University Pres

19 Pages Posted: 12 Feb 2021

Shailendra Kumar

University of Delhi - Faculty of Law

Date Written: December 9, 2020

Article 142 of the Constitution of India reads: Thus, article 142 vests the Supreme Court of India with a repository of discretionary power that can be wielded in appropriate circumstances to deliver ‘complete justice’ in a given case. It is pertinent to mention here that no other constitution in the world contains similar provisions except for two very recent constitutions, that is, Bangladesh (article 104) and Nepal (article 88[2]), both of which seem to have borrowed the provisions from the Constitution of India. The term ‘complete justice’ is comprised of two words, that is, ‘complete’ and ‘justice’. The Merriam-Webster Dictionary defines ‘complete’ as ‘having all necessary parts, elements, or steps or thorough or concluded’, whereas ‘Justice’ has been understood and defined by various scholars, philosophers, and social scientists in various ways and connotations. Plato defines it thus: ‘Justice is a proper, harmonious relationship between the warring parts of the person or city’. Hobbes and Rousseau understand ‘Justice’ as a process of giving and protecting the rights and liberties of a person.

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University of delhi - faculty of law ( email ).

Faculty of Law University of Delhi New Delhi, Delhi 110007 India

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Article 142 : Analysis of its usages

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
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
Taj Mahal restoring white marble case
Release of Undertrials rotting in jail
Union Carbide case: 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.
Using this power, SC appointed UP’s Lokayukta due to “lack of consensus” among the State’s constitutional authorities — the Chief Minister, the Opposition leader and the Chief Justice of the Allahabad High Court.
SC form Justice Lodha Panel to monitor MCI
The coal block allocation case: Allocation of coal blocks granted from 1993 onwards was cancelled in 2014 without even a single finding that the grantees were guilty of any wrongdoing. The cancellation carried with it a penalty of Rs. 295 per tonne of coal already mined over the years. The individuals were not heard on their particular facts, but only their associations were heard.
The ban on the sale of alcohol along national and State highways: While the notification by the central government prohibited liquor stores along National Highways only. The Supreme Court put in place a ban of a distance of 500 metres by invoking Article 142. Additionally, and in the absence of any similar notification by any of the State governments, the court extended the ban to State highways as well. As a result of the order, thousands of hotels, restaurants, bars and liquor stores were forced to close down or discontinue the sale of liquor, resulting in lakhs of employees being thrown out of employment.
All cases invoking Article 142 should be referred to a Constitution Bench of at least five judges so that this exercise of discretion may be the outcome of five independent judicial minds operating on matters having such far-reaching impact on the lives of people
In all cases where the court invokes Article 142, the government must bring out a white paper to study the beneficial as well as the negative effects of the judgment after a period of six months or so from its date.

Judicial activism

judicial restraint

Article 142 and its relation to judicial activism and judicial restraint

This article is written by Shivam Gupta , a student of Maharashtra National Law University Aurangabad. This article seeks to highlight the importance of Article 142 and how it can establish its correlation with judicial activism and judicial restraint.

Table of Contents

Introduction

Article 142 can be defined as the Supreme Court’s orders and decrees being carried out in the exercise of its jurisdiction in such a way that complete justice can be done. The Federal Court had no apparatus for carrying out its decisions under the Government of India Act, 1935 . It could only issue a declaratory judgement in the exercise of its original jurisdiction. If the Federal Court approved an appeal in the exercise of its appellate authority, it was required to remand the matter to the court from which the appeal was filed, together with a declaration of the judgement, decree, or order to be substituted for the judgement, decree, or order appealed against. Under the current Constitution , there is no such restriction.

Scope of powers under Article 142

In the exercise of its authority, the Supreme Court may issue any order required to provide complete justice in the case at hand. Even legislation will not be able to limit the court’s power. In the matter of Chandrakant Patil & ors. v. State Through CBI (1998), The Supreme Court of India ruled that exercising Article 142 is only subject to two conditions:

1. It can only be used if the court is otherwise exercising its jurisdiction,

2. The case or dispute pending before the Supreme Court must require the court’s order for complete justice to be served.

The Supreme Court of India held in Supreme Court Bar Association v. Union of India (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. Furthermore, the Supreme Court of India stated in DDA v. Skipper Construction Co. (P) Ltd. (1996) that it is preferable to leave Article 142’s power unregistered and undefined so that it may be sculpted to fit the circumstances in the given case. The Supreme Court ruled in the Union of India (UOI) v. State of Maharashtra and Ors .(2019) that Article 142 cannot be used to intrude on legislative territory which is one of the limitations while applying Article 142 to any case.

When the Constitutional Court gives wider meaning to various expressions written in the constitution or any statute according to the demand of the situation, it can be considered as judicial activism. Judicial activism is against the process where the Constitutional Courts just need to apply the pre-existing principles and legal rules to a given case and there is not much scope of judicial interpretation.

In the case of Pravasi Bhalai Sangathan v. Union of India (UOI) and Ors. (2014), the Supreme Court opined that the court cannot redefine, rewrite, or recast the statute because it lacks the authority to legislate. The courts have not been given the authority to legislate. But, in recent years, judicial activism by India’s upper courts has piqued popular interest. Even if judicial activism is explained as just the active interpretation of an existing provision to improve the effectiveness of legislation for social upliftment in conformity with the constitution, courts have and should always pursue in a way to meet the constitutional expectations of socio-economic justice under its banner.

In India, there are two types of Constitutional Courts, the High Court and the Supreme Court. According to Article 141 of the Constitution of India, all the judgments of the Supreme Court are binding upon all courts within the territory of India unless they are overruled by the Supreme Court itself or the legislature has passed a law against that judgement. All the judgments of the High Courts are also binding upon all the lower courts which come under the jurisdiction of that High Court. Therefore judicial activism should be exercised by the constitutional courts very diligently as their rulings act as a law.

Exemplary cases of judicial activism and Article 142

From time to time whenever it was noticed that several beneficiary provisions were being misused by unworthy individuals, denying the genuine claims of eligible individuals, the Supreme Court issued numerous guidelines/directions to avoid abuse and fraud on the statutes and the Constitution. Some of these significant cases are –

The State of Tamilnadu and Ors. v. K. Balu and Ors. (2017)

This case was about the presence of liquor vends on national and state highways across the country. The Supreme Court issued certain directions in this case about granting licences related to liquor sales along national and state highways all over India. One of the major directions given by the Supreme Court is that all states and union territories are prohibited to grant licenses for liquor sale along state and national highways. In this case, the Supreme Court issued the directions under the ambit of Article 142 to do complete justice. The reasoning behind issuing such directions is that Section 185 of the Motor Vehicles Act, 1988 makes the intention of the parliament clear that a zero-tolerance policy should be followed towards driving if any person is under the influence of alcohol. This case is the perfect illustration of how a constitutional court can use judicial activism.

In Re: Guidelines for Court Functioning through Video Conferencing during COVID-19 Pandemic (2020)

This case is another remarkable example of both judicial activism and doing complete justice under Article 142. In this case, the three-judge bench of the Supreme Court took the suo moto cognizance of the functioning of the judiciary during the COVID–19 pandemic times. The Supreme Court issued directions regarding the functioning of courts through virtual mode. These directions were issued under the ambit of Article 142. This shows the commitment of the judicial system towards the dispensation of justice and also a step further to achieve the objectives enshrined in the Preamble of India.

Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors. (2018)

In this case , one of the contentions made was that to protect the right to privacy and to implement the decision of the Supreme Court in the nine judges bench in Justice K.S. Puttaswamy and Anr. v. Union of India (UOI) and Ors. (2017) (Also popularly known as “Right to Privacy” case), the deficiencies in the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 should be removed and for the same, the Supreme Court should issue guidelines under Article 142. On this Supreme Court under Article 142 directed the Union government to come up with the fresh legislation regarding aadhaar as the Aadhaar Act, 2016 suffers from various constitutional infirmities and if the Union government failed to do so within one year then all the data collected related to aadhaar has to be destroyed. After the judgement, the Union government came up with the amended version of the Aadhaar Act in 2019. This judgement is the perfect blend of judicial activism and doing complete justice under Article 142.

Judicial restraint

Judicial restraint can be defined as when the court has to put a restrain upon itself to perform the functions of the executive or the legislature. In India there are three organs of government i.e., legislature, executive and judiciary and functions of all the three organs are different. All three organs come under the ambit of the doctrine of separation of powers. Although the idea of separation of powers is not acknowledged in its full rigour in the Constitution, the Constitution framers have precisely outlined the tasks of various State organs.

The legislature, executive and judiciary should operate within their constitutionally defined areas. No organ can take over the duties of another. The Constitution relies on each of these organs’ judgement to function and use their discretion while scrupulously adhering to the procedures laid out in the Constitution. Each of these organs needs to be strong and independent for it to work properly.

All the powers related to finance and arm forces rest with the legislature and the executive organs of the state. Although the judiciary has no jurisdiction over the arm forces or the treasury, it does have the ability to guarantee that the two primary organs of the state operate within constitutional bounds. It acts as a democratic watchdog. A judicial review is a vital tool for limiting the legislature’s and executives’ unconstitutional exploitation of authority. The notion of social and economic justice has been included in the widening purview of judicial review. While the legislative and executive are subject to judicial scrutiny, the only check that the constitutional court can impose on their powers is of the self-imposed practice of judicial restraint.

Jurisprudence behind judicial restraint

Asif hameed and ors. v. state of jammu and kashmir and ors. (1989).

In this case , the Supreme Court opined that when any action of the state is challenged, the court’s role is to assess the action in light of the law and determine whether the executive or the legislature has operated within the limits set by the Constitution; if not, the court must overturn the action. The court must do so while remaining within its self-imposed boundaries. The court renders a decision based on the actions of a government branch. The court is not an appellate authority when it exercises judicial review of administrative action. The Constitution forbids the court from directing or advising the executive on policy concerns, or from preaching on any issue that falls within the domain of the legislative or executive, as long as these organs do not exceed their constitutional or statutory authority.

Institute of Chartered Accountants of India v. Price Waterhouse and Anr. (1997)

In this case , the three-Judge Bench of the Supreme Court observed that judges should not imply that they are acting as legislators only to show off their judicial power. They must keep in mind that there is a narrow line that divides adjudication from policymaking. It is a line that should not be breached.

Madhu Kishwar and Ors. v. State of Bihar and Ors. (1996)

In this case , the Supreme Court observed that the court is not completely able to deal with the nuances and complexity of the legislative issues and it can only offer focus and guidance on State policy on a matter to help achieve the objective. Therefore, the court can only play a catalytic role in resolving people’s social and economic issues. The court must put limits on its self-motion sometimes, which is referred to in legal jargon as judicial self-restraint. Courts must not legislate or undertake executive responsibilities.

Union of India v. Association for Democratic Reforms and Anr. (2002)

In this case , the Supreme Court observed that it has no authority to amend the Act or the statutory provisions. The Act and the Rules must be amended by Parliament and also no directive can be issued that violates the Act or the Rules. But, if the Act or Rules are quiet on a given issue and the authority enforcing it has constitutional or statutory jurisdiction to do so, the Court can make orders or directions on the issue to fill the gap until a proper act is passed.

From the above analysis, it is clear that powers of the Supreme Court under Article 142 are undefined and can be exercised when it fulfils the conditions. Article 142 gives the Supreme Court the power to exercise judicial activism whenever required and do complete justice and in many cases, the Supreme Court has done that. But the Supreme Court also exercised judicial restraint in many cases where the issue should be resolved by the legislature or the executive. The judge should know when to exercise judicial activism and when to exercise judicial restraint. This ability should be developed by every judge in themselves because Supreme Court judgements act as a law in India.

The Supreme Court of India has wide jurisdiction under the Indian Constitution. When a constitutional functionary is given authority, it is always to be interpreted as a responsibility by the functionary; laymen can view it as power and when the functionary is a Supreme Court judge, he must be more cautious, otherwise, he/she might be swayed by emotion or bias.

https://www.legislation.gov.uk/ukpga/1935/2/pdfs/ukpga_19350002_en.pdf
https://legislative.gov.in/sites/default/files/A1988-59.pdf
https://uidai.gov.in/images/targeted_delivery_of_financial_and_other_subsidies_benefits_and_services_13072016.pdf
https://uidai.gov.in/images/Aadhaar_Act_2016_as_amended.pdf
https://core.ac.uk/download/pdf/233188475.pdf
https://jcil.lsyndicate.com/wp-content/uploads/2021/04/Judicial-Activism-The-COVID-19-Impact-Anjali-Karmakar.pdf
http://www.supremecourtcases.com/index2.php?option=com_content&itemid=5&do_pdf=1&id=312

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Article 142 of the Indian Constitution

Article 142.

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.
It provides the apex court with a special and extraordinary power and is meant to provide justice to litigants who have suffered traversed illegality or injustice in the course of legal proceedings.
In such instances, the Court can go beyond its usual limits to settle a dispute in a way that matches the specifics of the case.
The Art. 142 confers on the Supreme Court plenary power to pass such decree or make such order as is necessary for doing complete justice.
The SC can do so in any cause or matter pending before it.
Such orders of SC are enforceable throughout the territory of India as prescribed by any law made by Parliament or order of the President of India.

Noticeable Use of Art. 142

SC held that an 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,” referring to laws made by Parliament.
Article 142 remained unnoticed till the SC gave its decision in The Bhopal Gas Disaster Case.
In this case, SC announced a settlement and stated that all civil proceedings wherever pending were concluded in terms of settlement.
It quashed all criminal proceedings arising out of the disaster.
In this case, the SC in 1991 ordered UCC to pay $470 million in compensation for the victims of the tragedy , placing itself in a position above the Parliamentary laws.
The article was used in the Ram Janmabhoomi-Babri Masjid land dispute case and was instrumental in the handover of the disputed land to a trust to be formed by the union government.
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.

Curative Petition – An Innovative use of Art 142

The five-judge bench observed that Article 142 of the Constitution empowers the Supreme Court to act in whatever manner they may deem fit to establish complete justice.
Therefore, to protect the substantive rights of the litigant, the Constitution Bench came up with the theory of a curative petition.
Violation of principles of natural justice.
Where the judge has a bias
It has to be certified by a senior advocate. If the bench finds that the petition is vexatious and without any merit it may impose exemplary costs on the petition.

Significance of Article 142

Prevents Injustice: It provides a special and extraordinary power to the Supreme Court to do complete justice to the litigants who have suffered traversed illegality or injustice in the proceedings.
Uphold citizen’s rights: Article 142 has been invoked for the purpose of protecting rights of the different sections of the population.
Check on Government: Works as a system of checks and balances with the Government or Legislature.

Controversies

In R.S. Naik vs A. R. Antulay – SC, using Art 142, transferred cases against Antulay pending before the special judge to the High Court.
It was not proper for SC as the power to take disciplinary action is vested in the Bar Council under the Advocates Act.
It was the domain of executive.
Unlike the legislature and the executive, the judiciary cannot be held accountable for its actions.
The power has been criticised on grounds of the separation of powers doctrine.
It is further argued that the court has wide discretion due to the absence of a standard definition for the term complete justice.
Defining complete justice is a subjective exercise that differs in its interpretation from case to case.
In some judgments, it is mentioned that it could be used when the law of statutes is silent. However, by analysing judgments on the use of Article 142 it seems like it is used to fill the lacuna of the law.
The judgement on the ban on the sale of liquor near national and state highways has affected many hotels, bars, restaurants and liquor shops which resulted in the unemployment of lakhs of people.

Limitations on Article 142

SC recognised that the power under Art 142 has certain limitations and fetters.
The court should not ignore the substantive rights of a litigant under the existing law.
The power could not be used to supplant substantive law applicable to a case.
Express statutory provisions cannot be ignored.
It cannot exercise the jurisdiction in violation of the statute.
It clarified that no court has competence to issue a direction contrary to the law.
The courts are meant to enforce the rule of law and not to pass orders contrary to law.
In 2006, the apex court ruling by a five-judge Bench in ‘State of Karnataka vs Umadevi’ clarified that complete justice under Article 142 means justice according to law and not sympathy .

Way Ahead & Conclusion

The Apex Court could make a strict guideline that justifies the use of Article 142 and promotes judicial restraint.
The SC can, in every such case, ensure that it would be a “complete justice” for the society without affecting the rights of citizens.
The Drafting Committee of the Indian Constitution was mindful of the wide-reaching nature of the powers and reserved it only for exceptional situations.

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Article-142 Constitution of India - Is it Sword of “complete justice”?

Article-142 as a Medium to Deliver Complete Justice

The Indian Judiciary and the constitution of India believe that every citizen of India must get “complete justice”. The Constitution of India under Article 142 grants the power to the Supreme Court for passing any decree to do “complete justice”. But since the past few years, the said Article 142 has become a gigantic part of the Supreme Court which is invoked several times to decide the case and to do the “complete justice”. Further, there is no specific guideline or rule provided by the law which explains when, where and under which circumstances the Apex Court can invoke the said article to do “complete justice”. To better understand Article 142, firstly, we will have to read the definition which is given as under:

Definition of Article 142 in Constitution of India

“ 142. 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.

While going through the abovementioned definition, we understand that our constitution has given a very powerful sword to the Apex Court for complete justice in any case or matter. While going through the judgments that have been passed by the Apex Court under Article 142, we found that the Supreme Court believes that it is necessary to intervene in complex cases related to the environment, history and religion and the current laws were insufficient for the current scenario.

Further, below is an analysis of a few landmark judgments to find out whether the Apex Court achieved the real meaning of Article 142 to do “Complete Justice” or not.

Ayodhya Case [1] :

The Hon’ble Supreme Court has recently invoked this article while passing a unanimous judgment on Ayodhya case wherein the bench handed over the disputed land of 2.77 acres to a trust to be formed by the central government within three months for the construction of a temple, under the Acquisition of Certain Area at Ayodhya Act, 1993. Another 5 acres of land was allotted for the construction of a mosque in Ayodhya.

In the said case the Hon’ble Supreme Court described its power under Article 142 – “ 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. The demands of justice require a close attention not just 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.”

UNION CARBIDE CASE (BHOPAL GAS TRAGEDY) [2] :

In 1989, the Hon’ble Supreme Court invoked Article 142 during the infamous case of Union Carbide and provided relief to the thousands of people who were affected during the black night of Bhopal Gas Tragedy. In the said judgment, the Hon’ble Supreme Court while awarding the compensation of $470 million to victims observed that to do “complete justice” it could even override the laws made by Parliament. The specific part of the judgment is hereunder:

“prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142……..But we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is 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. No question of lack of jurisdiction or of nullity can arise. ”

The abovementioned statement of the Supreme Court of India placed itself above the laws made by Parliament or the legislatures of the States.

COAL BLOCK ALLOCATION CASE [3] :

The Supreme Court used the said provision of the constitution again in 2014 to cancel the allocation of coal blocks granted from 1993 onwards without any guilty of wrongdoing and imposed a penalty of INR 295 per tonne of coal already mined. The Supreme Court did not hear individuals and their particular facts, but only their associations were heard.

SALE OF LIQUOR /ALCOHOL BANNED ON STATE AND NATIONAL HIGHWAYS [4] :

In December 2016 the Hon’ble Supreme Court invoked Article 142 for banning the sale of alcohol and ensure that liquor vends are not visible or directly accessible from the highway within a stipulated distance of 500 metres form the outer edge of the highway, or from a service lane along the highway. As per the hon’ble Court, such a decision was taken to avoid accidents due to drunk and drive.

CRITICAL ANALYSIS

The above-mentioned judgments are some important judgments wherein the Supreme Court invoked Article 142 but the list does not end here. There are several judgments in the queue. When we go through these several judgments, we find that the Supreme Court tried to explain the phrase ‘complete justice’ but it is still blurred. In some judgments, it is mentioned that it could be used when the law of statutes is silent. However, if we analyse judgments on the use of Article 142 it seems like it is used to fill the lacuna of the law. When we go through the judgment on the ban on the sale of liquor near national and state highways, we find that the said judgment has affected many hotels, bars, restaurants and liquors shops which resulted in the unemployment of lakhs of people. Also, in the coal block case without hearing allottees, the apex court imposed a huge penalty on the owner/allottees of coal blocks. It shows that while giving “complete justice” the Apex court ignored the fundamental rights of an individual.

It is true that Article 142 has been invoked for the purpose of doing complete justice at large scale to the different section of the population. But, the judgments passed by the Apex Court have created a lot of confusion and there is no clarity on invoking Article 142. The Apex Court could make a strict guideline that justifies the use of Article 142 and

makes sure that it would be a “complete justice” for the society without affecting the rights of citizens. The present Attorney General of India Mr. K.K. Venugopal in his article on the said subject quoted the words of Justice Benjamin Cardozo, the judge “is not a knight-errant roaming at will in pursuit of his own ideal…”

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Make Your Note

SC's Use of Article 142 in Chandigarh Mayoral Election

23 Feb 2024
GS Paper - 2
Transparency & Accountability
Separation of Powers
Indian Constitution
Judicial Review

For Prelims: Supreme Court of India , Article 142 , Judicial Activism , Fundamental Rights , Judicial Overreach.

For Mains: Significance of Article 142, Legitimacy of Judicial Activism in India

Why in News?

Recently, the Chandigarh mayoral election garnered attention as the Supreme Court of India invoked Article 142 of the Constitution to overturn the election results.

Why did the Supreme Court invoke Article 142?

The election was marred by irregularities due to the illegal conduct of the presiding officer who had announced the winner by invalidating eight votes cast in favour of his opponent, leading to an incorrect declaration of the winner.

What is Article 142 of the Indian constitution?

These decrees or orders are enforceable across India's territory, making them significant tools for judicial intervention.
It enables the Court to exercise functions beyond adjudication, including executive and legislative roles when required.
This collective framework is known by the term “judicial activism”. This concept has often led to the Supreme Court overriding parliamentary legislation to deliver "complete justice".
The provision empowers the Supreme Court to intervene in cases involving public interest, human rights, constitutional values, or fundamental rights.
This reinforces the Court's role as a guardian of the constitution and ensures protection against violations or infringements.
SC Ordered UCC to pay USD 470 million in compensation for the victims of the Bhopal gas tragedy , highlighting the wide scope of Article 142(1) and clarifying that its powers are of a different quality and not subject to express statutory prohibitions.
The court stated that these powers are curative in nature and should not be used to ignore the rights of litigants or bypass statutory provisions.
The SC emphasized that while exercising its power under Article 142, no injustice should be inflicted upon a person who is not a party to the case.
SC clarified that "complete justice" under Article 142 means justice according to law and not sympathy, and that the court will not grant relief that perpetuates illegality encroaching into the legislative domain.
Risk of encroaching upon the separation of powers , inviting criticism of judicial activism.
Critics argue that Article 142 grants the judiciary broad powers without sufficient accountability, potentially leading to judicial overreach . However, these powers are reserved for exceptional cases where existing laws are inadequate.
Potential for disputes over the extent of the Court's authority and its interference with legislative or executive domains.


Defined as the and upholding citizens' rights.	When the and interferes with legislative or executive functions.
Ensures	in a democracy as it breaches the
Promotes and protects vulnerable groups.	Can undermine democracy.
Legitimacy of Judicial Activism is often debated, depending on specific circumstances.	Generally considered

UPSC Civil Services Exam, Previous Year Questions (PYQ)

Q. With reference to the Constitution of India, prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following? (2019)

(a) The decisions taken by the Election Commission of India while discharging its duties cannot be challenged in any court of law.

(b) The Supreme Court of India is not constrained in the exercise of its powers by laws made by the Parliament.

(c) In the event of grave financial crisis in the country, the President of India can declare Financial Emergency without the counsel from the Cabinet.

(d) State Legislatures cannot make laws on certain matters without the concurrence of Union Legislature.

JUDICIAL ACTIVISM AND JUDICIAL OVERREACH (ARTICLE 142)

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Context: Judiciary is increasingly being attacked by civil society for its new orientation towards the philosophy of political executive and becoming a part of partisan politics.

Judicial activism :

It is a “judicial philosophy which motivates judges to depart from the traditional precedents in favour of progressive and new social policies”.
Judicial activism enjoins judges to use their powers to correct injustices, especially when the other branches of government do not act to do so.
In short, the courts should play an active role in shaping social policy on such issues as civil rights, protection of individual rights, political unfairness, and public morality.

Judicial overreach: When judiciary assumes the roles and functions of the legislature and executive, thus diluting the concept of separation of powers, it becomes judicial overreach. Unrestrained activism on the part of judiciary often leads to its overreach.

Activism can be either conservative or liberal:

Conservative activism tends to narrow the scope of interpretation to restrict government or individual rights.
Liberal activism tends to broaden the scope of interpretation to expand individual rights in keeping with progressive social norms.

Evolution of Judicial Activism in India and its forms:

The Constitution ensures “independence of judiciary” from government influence through fixed salaries, security of tenure etc. but ‘independence’ is a much broader term that also includes independence from personal biases, political and moral beliefs, and partisan ideologies to save judges from turning into a politician. Independence of judiciary from executive and its relations with the executive has had a chequered history since 1947.

Passive phase of Indian Judiciary:

Nehruvian era judges were drawn from amongst the judges of the Federal Court and various High Courts of India appointed during the colonial government who firmly believed in the supremacy of the Imperial Parliament.
Courts believed that what was declared by the Parliament was the ‘law’and it was the duty of the courts to interpret the law as it is and uphold it. It was based on the Anglo–Saxon tradition that a judge does not make law; he merely interprets.
Nehruvian era parliamentarians were statesman and men of unity and integrity, who had participated in the national movement. They not only commanded respect from the people but also from the courts.
Gopalan Case1950 : SC taking a narrow interpretation of Article 21, held that protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action i.e. State can deprive the right to life and personal liberty of a person based on a law.
Shankari Prasad Case 1951 :SC held that the power to amend the Constitution, including the fundamental rights, was contained in Article 368 and that Article 13(2) does not protect fundamental rights if infringed by amendment of the Constitution, as amendment is made in the exercise of constituent power of Parliament and not legislative power.

Activism phase of Judiciary (Judicial Activism):

Overall the relations were cordial between judiciary and Parliament but some dents were evident since as early as 1950. SC’s activist decisions in RomeshThappar v. State of Madras, ChampakamDorairajan v. State of Madras invalidating the laws passed by the Parliament forced the Parliament to pass 1st Amendment Act, 1951 which added Ninth Schedule to the Constitution.
Kharak Singh Case 1962 : It was the first case of judicial activism on the right to liberty. SC held that ‘personal liberty’ was not only limited to bodily restraint or confinement to person only but something more than mere animal existence. It extends to all those limits and faculties by which life is enjoyed.
Golak Nath case 1967: An example of judicial activism as SC for the first time, SC dissented from Shankari Prasad judgement and despite the earlier holding that Parliament can amend any provision of the Constitution, SC declared that the fundamental rights as enshrined in Part III of the Constitution are immutable and not amendable.
Kesavananda Bharti Case 1973: SC upheld the sovereign right of Parliament to amend the Constitution but laid the concept of ‘basic structure’ i.e. some basic features of Constitution could not be amended by the Parliament.
While the creative interpretations of the text of law had started earlier (Golaknath Case, Kesavananda Bharti), the post-Emergency phase marked a distinct turnaround in the Indian judiciary’s activism.
After the ignominious failure to protect the fundamental rights of the citizens in ADM Jabalpur vs Shivakant Shukla (1976), the court believed a constitutional correction would be insufficient . So, the pursuance of constitutional legitimacy was replaced “ by a quest for popular legitimacy”.
Menaka Case 1978 : SC overruled its judgement in the Gopalan case by taking a wider interpretation of the Article 21. Right to life and personal liberty of a person can be deprived by a law provided the procedure prescribed by that law is reasonable, fair and just. In other words, it has introduced the American expression ‘due process of law’ .
A series of judgements, most notably S.P. Gupta vs President of India and others (1981), gave rise to a new legal instrument called public interest litigation , which diluted the rule of ‘locus standi’

Due process:

The word ‘due’ implies ‘just’, ‘proper’ or ‘reasonable’, accordingly to the judicial view. Therefore, the Courts can evaluate whether a law affecting a person’s life, liberty or property is reasonable or not. The Court may declare a law invalid if it does not accord with its notions of what is just and fair in the circumstances.

Procedure established by law:

It means that a law that is duly enacted by the legislature is valid if it has followed the correct procedure.A strict literal interpretation of Procedure established by Law gives the legislature an upper hand which may enact laws which may not be fair from a liberal perspective.
SC in India followed the ‘procedure established by law’ to evaluate the validity of a law in the initial decades after independenceeg.Shankari Prasad Case, but later at the onset of activist judiciary, courts started to evaluate law on the basis of ‘due process’ i.e. fairness and reasonableness, egMenaka Case.

Judicial Activism to Administrative Judiciary :

Judiciary’s role got further evolved and it started turning into administrative judiciary while assuming the administrative functions of the executive i.e. ‘constitutional court turning into Supreme ’Administrative’ Court.
Indian Council for Enviro-Legal Action Case 1999 : SC adopted the‘polluter pays principle’ for environment conservation by mandating that financial costs of preventing or remedying damage caused by pollution should lie with the undertakings which cause the pollution.
BCCI Caseand Lodha report : SC removed office-bearers of BCCI and appointed Committee of Administrators to oversee and implement recommendations given by Lodha panel.
Liquor shops on highways : SC not only asked removal of all liquor shops along highways but went on to demarcate the precise distance in meters within which the law had to be implemented. The verdict and its details lacked evidence and rendered many jobless.
National Anthem Case: SC mandated all cinema halls to play National Anthem before the feature film starts, during which all people should stand and the doors should be closed prior to starting of the anthem.

Administrative Judiciary to Executive Judiciary:

When judges or their judgments depict inclination topartisan politics of the executive and they start toeing in the line of executive by compromising their moral and philosophical independence, the institution becomes ‘executive judiciary’. The evolution of ‘executive judiciary’ is reflected in:
Meghalaya High Court Case 2018: Recently Justice S. R. Sen of Meghalaya HC raised doubts about secular basis of Indian polity while stating that “anybody opposing… Indian laws and the Constitution cannot be considered… citizens of the country.”
Master of Roster Issue: The Chief Justice of India assigns cases to different benches and judges and has sole discretion in this regard, but his/her decisions have often been charged with bias. Example , 4 senior most judges earlier this year raised concerns that cases of “far reaching consequences for the nation” are “assigned selectively” to “benches of preference.”
Though the judiciary has not completely turned into ‘executive judiciary’ but the damaging trend ought to be contained in its early phases.

Reasons/causes for judicial activism:

The Constitution is a written document which elaborately mentions the powers of judicial review of courts under Articles 32, 136, 142, 226 etc. Articles 50 enjoins upon the state to ensure separation of judiciary from the executive.
Gradual establishment of supremacy of human rights in India and around the world.
Tyranny of the central executive and its trampling of the basic structure.
Rise and growth of corruption followed by resentment of people towards ineffective governments.
Public confidence in the judiciary.
Campaign for Judicial Accountability and Judicial Reforms (CJAR)initiated a variety of activities to highlight and advocate for judicial accountability like advocating for asset declaration by judges and greater transparency in their appointments and transfers.
Indian Association of People’s Lawyers : Raised the issue of allocation of various important and sensitive cases in a manner that is violative of court traditions, and formulating norms and decorum to junior or handpicked judges to maintain the integrity of the Supreme Court.

Judicial activism is needed as:

Using judge’s wisdom when law fails: Many sensitive issues need a different perspective and care which laws don’t allow, hence judicial activism allows a judge to use his personal judgement in situations where the law fails. Example,triple talaqcase.
Filling the legal vacuum: It gives judges a personal voice to fight unjust issues which though important but evade the eye of legislature, for example, countering harassment against women at workplace through Vishakha guidelines.
Legislative and executive control: It provides a system of checks and balances to the other government branches, like SC laid conditions for imposition of Governor Rule in states in S.R. Bommai Case, to bring objectivity in the application of the rule.
Reviewing its own judgements: Courts maintain checks and balances on themselves through judicial review mechanism. Any verdict can be reviewed and made better with an appeal to the court.
Complete justice : Judicial review allows a court to do complete justice in any case by using its powers under Article 142 and taking suo-motu action based on its own appraisal of the situation.

Issues with judicial overreach:

Dilutes ‘separation of powers’: It destroys the spirit of ‘separation of powers’ between Parliament, Executive and Judiciary, enshrined in the constitution.
Limited experience: In many cases, courts are often ill-equipped and lack experience to weigh the economic, environmental and political costs involved like liquor ban case.
No external regulation: The executive remains “accountable” to the people through 5 year election process but judges exercise self-regulation and are insulated from any external control and thus accountable only to themselves, and their own sense of their limits.
Conflict of interest: Sometimes when judicial activism is exercised it is done for solely selfish, political or personal reasons.
Undermines trust in Parliament: It reduces the trust people pose in the Parliament and elected representatives as frequent overreach signals executive inactivity and incompetency.
Minority rule/ Undemocratic: Judicial overreach appears as an act of ‘tyranny of unelected’ in a democracy.
Wastage of court’s time: It is wastage of court’s time, which can otherwise be used for adjudicating other important matters relating to public importance pending before the court.

Way-forward:

Though Article 142 and judicial review has been put to many constructive uses but some actions, like declaring the National Judicial Appointments Commission unconstitutional as it tried to apply checks on judicial powers, highlight the need for more judicial restraints in using judicial review.

Maintaining ‘independence’: Judiciary is expected to maintain its primary allegiance to the law and the Constitution i.e. to the text of legal instruments and legal interpretation, and to the body of judicial precedents. Though there exists a two-way interaction between judiciary and executive but the judiciary should keep its moral and philosophical independence intact.
Limiting judicial discretion: A ll cases invoking Article 142 should be referred to a Constitution Bench of at least five judges so that this exercise of discretion may be the outcome of five independent judicial minds.
Review and feedback mechanism: In all cases where the court invokes Article 142, the government must bring out a white paper to study the effects of the judgment after a period of six months or so from its date.

The time has come for the Supreme Court to introspect on whether the use of judicial review as an independent source of power should be regulated by strict guidelines so that, in the words of Justice Benjamin Cardozo, the judge does not become “a knight-errant roaming at will in pursuit of his own ideal…”

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Article 142 Of The Indian Constitution: Complete Justice

According to Article 142 of the Indian Constitution, the Supreme Court has the exclusive authority to render “full justice” between the parties when the law or a statute may not otherwise permit it. The said Article is outlined in Part V of the Constitution.

When such happens, the Court may step in to resolve the conflict in a way that is appropriate given the circumstances.

For the UPSC-CSE Preliminaries and GS II Mains, candidates for the UPSC must be familiar with Article 142.

History Of Article 142 Of The Indian Constitution

Constitutional provisions, why did the constituent assembly consider article 142 necessary, usages of article 142, plus points of article 142, minus points of article 142, recent case, conclusion , faqs on article 142, what article 142 deals with, what is the objective of article 142, what is the purpose of article 142(1), what is the significance of article 142, what is meant by judicial overreach, write the constructive application of article 142..

Originally presented to the Constituent Assembly on 27th May in the year 1949 as Draft Article 118 for the discussion, Article 142 was later renumbered. However, it was enacted without argument on the exact same day, perhaps because everyone understood that the nation’s top court should be given plenary power to administer perfect justice in order to ensure judicial independence.

Article 142 addresses the execution of Supreme Court decrees, orders, and orders regarding discovery, among other things.

In the course of exercising its authority, the Supreme Court may issue any decree or order that is required to provide full justice in any case or subject that is before it. Any such decree or order shall be enforceable throughout the entire territory of India in accordance with any provisions set down in or pursuant to any statute passed by Parliament, or, in the absence of such provisions, in accordance with such other provisions as the President may by order specify.
The Supreme Court shall, with respect to the entire Indian territory, have full and complete power to issue any order necessary to secure the presence of any person, the discovery or production of any texts, or the inquiry or punishment of any scorn of itself, subject only to the terms of any law adopted in this behalf by Parliament.
The importance of incorporating such a provision in the Constitution was emphasized by the Constituent Assembly.
The framers of the Constitution thought that this clause was crucial for people who are compelled to endure suffering because the judicial system is ineligible to provide the necessary remedies.

The executive and legislative branches may be replaced under Article 142. The Supreme Court uses broad authority granted by Article 142 to carry out administrative and legislative duties in the interest of full justice.

In this endeavor, Article 142 is supplemented by Articles 32 (Right to constitutional remedies), 141 (The Supreme Court’s ruling shall be binding on all courts within India), and Article 136. (Special Leave petition). The term used to characterize this is judicial activism. In order to give “complete justice,” it has frequently overridden laws enacted by Parliament, as in the following cases:

Union Carbide Case: In 1989, the Bhopal Gas Tragedy victims received compensation after the Supreme Court granted relief under Article 142.
Case Concerning Coal Block Allocation: In 2014, the Supreme Court used this provision of the constitution to annul the allocation of coal blocks to culprits from 1993 onward and impose fines on coal that was produced illegally.
Ban on Liquor sale on Highway case: The sale of liquor (or alcoholic beverages) within 500 meters of the outer edge of a highway was deemed illegal in 2016 by the Supreme Court pursuant to Article 142. It was decided to take this action to prevent accidents brought on by intoxicated driving.
Babri Masjid demolition case: The Supreme Court demanded that the Center prepare a plan for the establishment of a trust in order to build the Ram Mandir at the Ayodhya Masjid demolishing site.

The Supreme Court (SC) utilizes Article 142 of the Indian Constitution to provide remedies and address what it sees as holes in the nation’s legislative framework.

It is only designed to be utilized in situations where the nation’s current legal and policy frameworks are ineffective or cannot adequately address the issue at hand. Some of its advantages are as follows:

The court has exercised its powers under Article 142 to protect citizens’ rights and maintain constitutional principles whenever the government or legislature has failed to do so.
Article 142 grants the Supreme Court the authority to fill in statutory loopholes in its role as the constitutional defender.
In the case of Vishakha v. State of Rajasthan, the Supreme Court created guidelines to protect a woman against sexual harassment in the workplace.
With its decision in the Bandhua Mukti Morcha Case, the Supreme Court of India significantly impacted the bonded labor system in the country.
The right to subsistence was deemed to be an essential component of the right to life in the case of Olga Tellis.
For instance, in one decision, Delhi’s highest court banned e-rickshaws in some neighborhoods without offering any substitutes.
However, it cannot be held accountable for violating the fundamental right to practice any occupation or run a business.
Although the justices of the Supreme Court are not obligated to give reasons for their decisions, the majority of petitions and appeals that are submitted to it in accordance with Article 136 of the Indian Constitution are denied.
Frequent court intrusion can diminish the public’s trust in the government’s reliability, competence, and effectiveness.
Ambiguity: Despite the Supreme Court’s efforts to clarify, the meaning of the phrase “full justice” remains hazy. There is a lot of ambiguity around the Apex Court’s decisions, and it is unclear how to use Article 142.
Impact on the economy negatively: The decision to prohibit the sale of alcoholic beverages along national and state highways had a detrimental effect on the economy because it shut down a large number of hotels, bars, and restaurants in addition to liquor shops, which put tens of thousands of people out of work.
Fundamental rights disregarded: The supreme court severely penalized the coal block owner/allottees in the coal block case without giving the allottees a chance to be heard. It demonstrates how the Supreme Court disregarded an individual’s fundamental rights while dispensing “full justice.”

The Supreme Court has approved the release of A.G. Perarivalan in the assassination case involving former Prime Minister Rajiv Gandhi by using its extraordinary authority to uphold comprehensive justice in accordance with Article 142 of the Constitution.

To preserve the principle of federalism, the court ruled that individual states possessed the authority to assist and advise the Governor in the event that convicted murderers appealed for pardon under Article 161.
According to Article 161, the Governor of a State has the authority to pardon, reprieve, respite, or remit punishment, as well as to suspend, remit, or commute the sentence of any individual found guilty of breaking any law pertaining to an issue within the scope of the State’s executive power.
The court rejected the Centre’s claim that only the President, and not the Governor, had the authority to pardon a person under Section 302 (murder) of the Indian Penal Code. The court reasoned that this claim would make Article 161 “dead-letter” and result in an exceptional situation where pardons given by Governors in murder cases during the previous 70 years would be invalidated.

In situations where the law or a statute may not always offer a remedy, the Supreme Court is given the exclusive authority under Article 142 to “complete justice” between the parties.

In some circumstances, the Court may take additional steps to resolve a disagreement in a way that is appropriate given the particulars of the case.

The statute does not contain any guidelines or rules that specify where, when, or under what conditions the Apex Court may apply the aforementioned article to “complete justice.”

For Further Readings:

With reference to the Constitution of India, prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on constitutional powers under Article 142. It could mean which one of the following? (2019)

The decisions taken by the Election Commission of India while discharging its duties cannot be challenged in any court of law.
The Supreme Court of India is not constrained in the exercise of its powers by the laws made by Parliament.
In the event of grave financial crisis in the country, the President of India can declare Financial Emergency without counsel from the Cabinet.
State Legislatures cannot make laws on certain matters without the concurrence of the Union Legislature.

Explanation:

In line with clause 1 of Article 142, the Supreme Court may, in the course of its duties, issue any judgment or order necessary to ensure that every party is treated fairly in any matter or case that comes before it. Any such decree or order will be enforceable across the whole of India in compliance with any provisions set out in or based on a law passed by Parliament, or, if there are no such provisions, in accordance with any other provisions that the President may order.
In order to ensure that justice is served, Article 142 adds to the authority already granted to the Supreme Court by the Constitution. In doing so, the Court is not constrained by a lack of jurisdiction or authority of law.

Hence the correct option is 2.

Article 142 of the Indian Constitution deals with the implementation of Supreme Court decrees and orders, including orders for discovery, etc.

The purpose of article 142 is to give the Supreme Court the ability to fill in any gaps that may arise in providing “full justice” to the parties. A statutory provision cannot be repealed by using Article 142 of the Constitution.

The purpose of Article 142(1) is to ensure that the Supreme Court does not rely on the government to carry out its orders and decrees. In the alternative, such reliance would be in breach of the principles of independence of the court and separation of powers, both of which are components of the basic framework of the Constitution.

Prevents Unfairness: It offers a particular and extraordinary power to the Supreme Court, which enables it to deliver complete justice to plaintiffs who have suffered through illegality or injustice throughout the processes. This, in turn, prevents injustice from occurring. Uphold the rights of citizens: Article 142 has been used for the aim of defending the rights of various segments of the populace. Check on Government: Functions as a mechanism of checks and balances with the Government or Legislature.

Judicial overreach occurs when the judiciary begins to interfere with the proper operation of the legislative or executive branches of the government, crossing over from its own function and into the executive and legislative branches. In a democracy, judicial overreach is regarded as undesirable.

The Supreme Court received praise early on in the development of Article 142 from both the general public and the legal community for its efforts to provide full justice to various underprivileged groups in society or to save the environment. Some of the examples of invocation of Article 142 are: 1. Only by invoking this article Supreme Court has used its vast powers for the cleansing of the Taj Mahal (one of the seven wonders of the world). 2. Also, article 142 has wide applications in preventing drunken driving by putting a ban on the sale of alcohol within the sphere of 500m of the outer rim of the national highways.

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At Missouri Hearing, Lawyers Spar Over Fate of Prisoner on Death Row

The case of Marcellus Williams, 55, who has maintained his innocence in a 1998 killing, has pitted a local prosecutor against the state’s attorney general.

A stately red and white building shown from the ground level.

By Kate Selig

Reporting from Clayton, Mo.

In a Missouri prosecutor’s unusual quest to save the life of a man his office once tried to put to death, lawyers called several witnesses to testify in a hearing Wednesday to paint a picture of a murder conviction gone gravely wrong.

A lawyer who represented the man in the 2001 trial said he had not had enough time to mount the strongest defense. An expert on investigative interviewing cast doubt on the credibility of the two key witnesses who were pivotal in the guilty verdict. And the prosecutor from the original trial described how he had repeatedly handled the murder weapon without gloves, potentially contaminating critical DNA evidence that could have proven the man’s innocence.

It was the first time in over a decade that the man, Marcellus Williams, 55, who has long maintained his innocence, had received a hearing in open court. And it could be the last. He is scheduled to be executed on Sept. 24.

Mr. Williams was convicted of murder and sentenced to death in the 1998 killing of Felicia Gayle, a former reporter for The St. Louis Post-Dispatch who was found stabbed to death with a kitchen knife lodged in her neck at her home outside St. Louis.

The case has pitted the St. Louis County prosecuting attorney, Wesley Bell, a Democrat and an opponent of the death penalty, against the state’s attorney general, Andrew Bailey, a Republican who has fought to keep exonerated prisoners behind bars and who is staunchly opposed to the effort to vacate Mr. Williams’s conviction. Both men are up for election in November in different races.

At the hearing in Clayton, Mo., which featured clashes on nearly every point and often turned testy, lawyers from Mr. Bailey’s office said that many of the arguments made by Mr. Bell’s team had been raised before and rejected. Both state and federal courts have upheld the conviction through several unsuccessful appeals.

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