ARTICLE 142 AND THE EVOLUTION OF “COMPLETE JUSTICE”: THROUGH CASE LAWS

Devdeep Ahirwal, Student, Integrated Law Course, Faculty of Law, University of Delhi

1. Introduction 

A distinctive characteristic of common law systems is their steadfastness on adherence to procedures. Hence, judges draw judgements from institutionalised opinions and interpretations from other judicial authorities. This can give rise to situations in which justice may not be fully delivered to the aggrieved. To mitigate situations where justice is not fully delivered to the aggrieved, Article 142, which bestowed upon the Supreme Court the power to pass any decree or order to do complete justice in any matter pending before it, was enshrined in the Indian Constitution. Yet, with this great discretion, also came the threat of the judiciary overstepping its domain of functioning. This blog traces this arduous journey of the Supreme Court harmonising its powers under Article 142 through case laws, to establish an equilibrium between separation of powers and judicial activism.

2. Evolution of Idea of Complete Justice under Article 142

2.1 Adherence to Statute

The interpretation of the phrase “complete justice” under Article 142 has been dynamic, to say the least. Whether these were transcendental powers which could be used to pass orders which were inconsistent with the constitutional or statutory provisions or powers which could be curtailed through ordinary law was a point of contemplation in many judicial pronouncements. Initially, the view of the Supreme Court was that complete justice cannot be adverted to, to defeat statutory provisions. 

One of the earliest of such interpretations is in the Prem Chand Garg v. Excise Commissioner, UP, Allahabad. The point of contention was whether the Supreme Court, in furtherance of its powers under Article 142, could frame a rule or issue an order which would be inconsistent with any of the fundamental rights. It was Gajendragadkar J. who observed that any such order or decree “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.” Hence, the court was of the view that the powers vested in the Supreme Court under Article 142 only empowered it to pass orders or decrees within the constructs of the Constitution and statutes. This view was further endorsed by the same learned judge in Naresh Shridhar Mirajkar v. State of Maharashtra, where a larger nine-judge bench acknowledged the superiority of the Constitution and statutes over the discretionary powers of the Supreme Court. 

2.2 Transcendental Nature of Power

The above view was modified by the Supreme Court in Delhi Judicial Services Association v. State of Gujarat. KN Singh J., for a three-judge bench observed: “This Court’s power under Article 142(1) to do ‘complete justice’ is entirely of different level and of a different quality. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of this Court.” Moreover, the three-judge bench held that Article 142 is part of the basic structure of the Constitution of India. This ruling marked the inception of the view that the powers accorded to the Supreme Court under Article 142 are transcendental, and hence not restricted by ordinary laws or statutes. These observations were further reinforced in the case Union Carbide Corporation v. UOI, where Venkatchalaiah J. held that prohibitions or limitations or provisions contained in ordinary law cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142 of the Constitution.

After the views expounded by the Court in Delhi Judicial Services Association v. State of Gujarat, it was clear that the scope of powers under Article 142 had become very wide-ranging. This was based on the idea that considering the power of the Supreme Court as corrective and doing complete justice means giving preference to equity over law. But such an arrangement is evidently in unease with the critical doctrine of separation of power in a democracy, because unbridled power to the Supreme Court under Article 142 meant there are no checks and balances to prevent excesses. Friction among the Judiciary and other branches of the government along these lines still exists today. Hence, the Supreme Court felt that though the powers accorded to it under Article 142(1) are unbridled, it must still acknowledge and treat with consideration the pertinent statutes and laws.

2.3 Rationalisation of Powers

In this context, came the ruling in Bonkya v. State of Maharashtra, where a two-judge bench of the Supreme Court held that the amplitude of powers available to the Supreme Court under Article 142(1) of the Constitution of India is, normally speaking, not conditioned by any statutory provision but it cannot do complete justice between parties by passing orders which are in disregard of the relevant statutory provisions. In Supreme Court Bar Association v. Union of India too, though the Court took the position that Article 142 gives it unlimited power, it seems to have adopted a cautious and balanced approach, observing that “these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject.”

The most nuanced and rational observations on Article 142 were perhaps made by a five-judge Constitution Bench in ESP Rajaram v. Union of India which accommodated all the major aspects of various interpretations of Article 142. The Court reiterated the position that while exercising power under Article 142 of the Constitution the Court cannot ignore the substantive right of a litigant while dealing with a cause pending before it and can invoke its power under Article 142. The power cannot, however, be used to supplant substantive law applicable to a case. The Court further observed that Article 142 even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby achieve something indirectly which cannot be achieved directly. So, the powers vested onto the Supreme Court need to be exercised in an astute manner, on a case-by-case basis, taking into considerations the peculiarities of the situation and the substance of the law, while also maintaining the transcendental nature of the powers vested in it.

3. Practical Implications: Contemporary Judicial Activism and Overreach

3.1 Judicial Activism

Judicial Activism is an approach to judicial review, or a description of a certain judicial decision, in which a judge is generally more inclined to make rulings based on subjective policy views rather than an impartial and honest interpretation of the law in force. After the nuanced observations that the Court took in ESP Rajaram vs Union of India, Article 142 has been judiciously used to strike a balance between contrasting interests and ensure the triumph of righteousness.

In M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors, famously known as the Ayodhya dispute, the Court once again employed Article 142 to craft a unique solution to a complex situation. Babri Masjid was a 16th century mosque located in Ayodhya, Uttar Pradesh. The site of the mosque was believed to be the birthplace of Lord Ram, and the temple built at the site was demolished by the Mughal Emperor Babur’s Commander, Mir Baqi in 1528. The Supreme Court, in its ruling, handed over the entire 2.77 acre plot to the Hindus and directed the Central Government to allot a 5-acre plot to the Muslims, which it felt would ensure justice with respect to the claim of the Sunni Wakf Board. Hence, the application of Article 142 in this ruling aptly represents how Article 142 could be harnessed to create justice in a unique situation, where the law was not at par with the complexities involved. 

In May, 2023, a Constitutional Bench of the Supreme Court ruled in Shilpa Shailesh v. Varun Sreenivasan that the Court has the discretion to dissolve a marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion under Section 13B(2) of the Hindu Marriage Act, 1955. Moreover, it was also held that the Supreme Court has the discretion to dissolve the marriage on the ground of its irretrievable breakdown, under Article 142(1). In such cases, divorce is inevitable, and the cooling-off period prolongs the misery and pain. The Court utilised Article 142 to not only do ‘complete justice’ to the aggrieved parties, but to fill the legislative void in a certain area of law as irretrievable breakdown of marriage is not yet a ground for divorce under the Hindu Marriage Act, 1955 even after the recommendation of the Law Commission.

3.2 Judicial Overreach 

Yet, when Judicial Activism goes overboard, it can result in excessive interference of the judiciary in the domains of the other branches, overstepping the mandate of elected representatives and thwarting the will of the people. In State of Tamil Nadu v. K Balu, taking cognisance of the increase in road accidents and fatalities due to drunken driving over the years, the Supreme Court banned liquor vends within a stipulated distance of 500 meters (later revised to 220 meters) from the outer edge of a Highway. The blanket ban by the Supreme Court led to enormous losses to business and tourism, unemployment as well as huge revenue losses for state governments. Such a decision also risked the proliferation of illegal liquor vends, which would defeat the original purpose of the ruling. The Supreme Court, in MC Mehta v. Union of India again crossed the threshold of division of powers when it prohibited the selling of BS-4 vehicles after March 30, 2020, mandating the sale of only BS-6 vehicles after that date. Hence, the practical implications of the provision have been conflicting and equivocal, to say the least.

2. Conclusion

These rulings highlighted the unease between Article 142 and the doctrine of Separation of Powers and Federalism, which are essential principles for a democracy to sustain. Some ventures in filling statutory vacuums or addressing injustices may result in transgression on the other branches’s domain of operation, which is detrimental to the harmony between different branches of government. Rulings in cases like Union Carbide Corporation case, Ayodhya Ram Janmabhoomi case and Vishakha v. State of Rajasthan constructively preserved individual liberties and created conditions of justice in complicated legal problems. But application of Article 142(1) has also resulted in non-observance of the imaginary lines which delineate the jurisdiction of the different branches of the government. The inconsistencies in the rationale of application and the ambiguity around what constitutes ‘complete justice’ has made the Article and its usage in various instances somewhat contradictory and unpredictable. Yet, it also remains an efficacious tool to correct fallacies in law and do away with cumbersome access to justice in crucial cases.

References

1. Anhad Miglani, With Highway Liquor Ban, Supreme Court Has Over-Reached Itself, The Wire, (Apr. 11, 2017), https://thewire.in/government/liquor-ban-supreme-court-highway.
2. Pragya Nagpal, Shashank Tomar, Judicial Overreach in India, Legal Services India E-Journal, https://www.legalserviceindia.com/legal/article-6024-judicial-overreach-in-india.html.
3. Prem Chand Garg v. Excise Commissioner, UP, Allahabad, AIR 1963 SC 996.
4. Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, at p. 14.
5. Delhi Judicial Services Association v. State of Gujarat, (1991) 4 SCC 406.
6. Union Carbide Corporation v. Union of India, (1991) 4 SCC 584.
7. Anhad Miglani, With Highway Liquor Ban, Supreme Court Has Over-Reached Itself, The Wire, (Apr. 11, 2017), https://thewire.in/government/liquor-ban-supreme-court-highway.
8. Bonkya v. State of Maharashtra, (1995) 6 SCC 447.
9. Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409.
10. ESP Rajaram v. Union of India, (2001) 2 SCC 186.
11. M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors, 2020-1 SCC 1.
12. Manish Upadhyay, Ayodhya Saga: Ujjain’s Vikramaditya Built Ram Temple Demolished by Mir Baqi, Free Press Journal, (Jan. 17, 2024), https://www.freepressjournal.in/indore/mp-ujjains-vikramaditya-built-ram-temple-demolished-by-mir-baqi.
13. Shilpa Shailesh v. Varun Sreenivasan, 2023 SCC OnLine SC 544.
14. State of Tamil Nadu v. K. Balu and Anr., (2017) 2 SCC 281.
15. Apoorva, Irretrievable Breakdown of Marriage: Decoding Supreme Court judgement on grant of divorce under Article 142 of Constitution; waiver of 6 month’s cooling off period, SCC Online, (May 2, 2023), https://www.scconline.com/blog/post/2023/05/02/supreme-court-article-142-of-indian-constitution-and-irretrievable-breakdown-of-marriage/.
16. Law Commission, Irretrievable Breakdown of Marriage, (Law Com No 217, 2009) para 2.13.
17. Abhimanyu Hazarika, Supreme Court recalls order to close wine shop near school; says ban on liquor shops near highways has been relaxed in certain cases, Bar and Bench, (Feb. 24, 2024), https://www.barandbench.com/news/ban-on-liquor-shops-relaxed-in-certain-cases-supreme-court-recalls-order-to-close-wine-shop-150m-school#:~:text=For towns with a population,was modified to 220 meters.
18. Costly Verdict: Supreme Court’s highway liquor ban is proving counterproductive, Times of India, (Apr. 8, 2017), https://timesofindia.indiatimes.com/blogs/toi-editorials/costly-verdict-supreme-courts-highway-liquor-ban-is-proving-counterproductive/.
19. MC Mehta v. Union of India, AIR 2018 SUPREME COURT 5194.