(Author: Rajat Kumar, pursuing B.Com LLB from Rayat Bahra University, Mohali.)
“A judge is not a legislator in general but highlights how the judge does legislate new law in close cases to fill gaps between existing rules.”Benjamin Cardozo
Indian Judiciary is establishing to provide justice to each and every people of the country. Supreme Court of India is the highest Constitutional Court and regarded as most powerful public institution in India. Supreme Court has many powers like judicial review and it has many extensive powers also like original, appellate and advisory jurisdiction. These powers are given only to provide justice to the parties. But, sometimes a gap created by an insufficient law while providing a justice to the parties. To bridge this gap an extra ordinary power under article 142 is given to the Supreme Court of India.
Article 142 is given under the Part V (The Union) of the Constitution of India. Article 142 of the Constitution of India confers plenary powers on the Supreme Court to do complete justice. The exercise of ‘power to do complete justice’ under this provision has given new dimension to the concept of judicial activism in India.
Article 142 of the Constitution of India provides that:
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.[i]
In Article 142(1) the expression cause or matterincludes any proceeding pending in the court and covers almost every kind of proceeding in the court, including civil or criminal. The power in exercise is circumscribed only by two conditions. Firstly, it can be exercised only when the Supreme Court otherwise exercises its jurisdiction, and secondly, that the order which the Supreme Court passes must be necessary for doing complete justice in the cause or matter pending before it. However, it is expected from the court that this power should not be exercised frequently rather it should be used sparingly.
The Apex 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.
Meaning Of The Term ‘COMPLETE JUSTICE’
Indian Constitution mainly focuses on the meaning of the phrase ‘Complete Justice’ which could have multiple meanings. Complete Justice is the word of width used to meet different kinds of situations created by human beings. Consequently, fairness is central to the content of complete justice. The notion of complete justice is just only if it is fair, the court cannot pass any judgment which is unfair to other. Complete justice strives at imparting justice not just for one side alone, but for all. Complete justice should be according to rule of law which is a basic feature of the Constitution. The existence of ‘Complete Justice’ must ensure the absence of any collateral injustice. The supreme court of India, the court cannot pass an order, which would cause injustice to others.
Cases Where Supreme Court Invoked Article 142
The Hon’ble Supreme Court invoked many times Article 142 in many cases.Now, it is necessary to review the cases where the Supreme Court uses the extraordinary power. The extraordinary power under the article 142 is invoked in the case of Vijay Shekhar v. Union of India[ii]to abrogate criminal proceedings filed against eminent persons, which was later found to be false, and a product of fraud and total abuse of process of court. In another case of Dulip Singh
Similarly, In the case of Zahira Habibullah Sheikh v. State of Gujarat[iv], power under this Article was invoked by the Supreme Court to transfer a criminal trial from one state to another within the jurisdiction of the Supreme Court.
Moreover, In the case of Prem Chand Garg v. Excise Commissioner, U.P, Allahabad[v], the article 142, for the very first time, came under the light of interpretation in this case. The Apex Court held that an order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.
In addition to this, recent case of M Siddiq Thr Lrs v. Mahant Suresh Das & Ors[vi], where Hon’ble Supreme Court has 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 another popular case of The State of Tamil Nadu v. K. Balu & Ors.[vii], 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.
Thus, to conclude, The Supreme Court should be slow in exercising this great discretionary power and it should not pass any order which would amount to supplanting the substantive law. Further, the court should not exercise the power on the ground of sympathy or on mere asking. This is because this great plenary power is also a discretionary and extra-ordinary power which is not to be exercised in a mechanical manner. There must be strong and cogent reasons for exercising this discretionary jurisdiction.
[i] The Constitution of India (as on 9th November, 2015) published by: Government of India Ministry of Law and Justice (legislative department)
[ii] (2000) 9 SCC 754
[iii] (1994) 5 SCC 545
[iv] (2005) AIR SC 972
[v] AIR 1963 SC 996
[vi] (2019) SCC 1440