Article 142 in the Constitution of India
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An overview
May 19, 2022: The Indian Express
This provision of the Constitution gives the country's top court wide powers to do "complete justice" in a case. Article 142, which started out as draft article 118, was adopted by the Constituent Assembly on May 27, 1949.
What is Article 142 of the Constitution?
Subsection 1 of Article 142 (“Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.”) says “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.”
Essentially, this provision of the Constitution gives the country’s top court wide powers to do “complete justice” in a case. Article 142, which started out as draft article 118, was adopted by the Constituent Assembly on May 27, 1949.
Scope of Article 142
While the powers under Article 142 are sweeping, the Supreme Court has in its judgments over the years defined its scope and extent. Some important cases in this regard are ‘Prem Chand Garg v. Excise Commissioner, U.P., Allahabad’ (1962); ‘A.R. Antulay v. R.S. Nayak & Anr’ (1988); ‘Union Carbide Corporation v. Union of India’ (1991); and ‘Supreme Court Bar Association v. Union of India’ (1998). ‘Antulay’ was decided by a seven-judge Bench; the other three cases were decided by five-judge Benches.
- In ‘Prem Chand Garg’, the majority opinion drew red lines for the exercise of the Supreme Court’s powers under Article 142(1). It said: “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. Therefore, we do not think it would be possible to hold that Art. 142(1) confers upon this Court powers which can contravene the provisions of Article 32 (right to constitutional remedies).”
- In ‘Antulay’, the majority opinion upheld the court’s opinion in ‘Prem Chand Garg’.
- In ‘Union Carbide’, while ordering the company to pay $470 million as compensation for the Bhopal gas disaster, the Bench underlined the wide scope of Article 142(1), saying it was “necessary to set at rest certain misconceptions in the arguments touching the scope of the powers of this Court under Article 142(1) of the Constitution”.
The court ruled: “The power under Article 142 is at an entirely different level and of a different quality. Prohibitions on limitations on provisions contained in ordinary laws cannot, ipso-facto, act as prohibitions or limitations on the constitutional powers under Article 142… It will be wholly incorrect to say that powers under Article 142 are subject to express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision…”
- In ‘Supreme Court Bar Association’, the court ruled that its powers under Article 142 were supplementary in nature, and could not supplant substantive law and “build a new edifice where none existed earlier”.
It said: “It, however, needs to be remembered that the powers conferred on the court by Article 142 being curative in nature cannot be construed as powers which authorise the court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to “supplant” substantive law applicable to the case or cause under consideration of the court. 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 to achieve something indirectly which cannot be achieved directly… The construction of Article 142 must be functionally informed by the salutary purpose of the Article viz. to do complete justice between the parties. It cannot be otherwise.”
The case of Perarivalan
Perarivalan had submitted a mercy petition to the Tamil Nadu Governor in 2015 seeking release under Article 161 of the Constitution, under which the Governor is empowered to “grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence”.
After failing to receive a response, he moved the Supreme Court, which in 2018 underlined the Governor’s right to decide on the remission petition. Three days later, on September 9, 2018, the Tamil Nadu Cabinet headed by then Chief Minister Edappadi K Palaniswami recommended the release of all seven convicts, including Perarivalan.
The Governor, however, continued to sit on the recommendation, and in July 2020, Madras High Court reminded him that the Constitution had not prescribed a time limit for him to act on such issues only “because of the faith and trust attached to the constitutional post”, and warned that it might be forced to intervene.
But the Governor did not react, and in January 2021, the Supreme too warned that it will be forced to release the convict on grounds of inordinate delay. In February 2021, the Governor’s office forwarded the state government’s recommendation to President Ram Nath Kovind. The file has been lying with Rashtrapati Bhavan ever since.
The Supreme Court has now ruled that inordinate delay by the Tamil Nadu Governor in exercising his powers under Article 161 can be subject to judicial review. It has rejected the Centre’s submission that the President has exclusive power to grant remission is cases pertaining to Section 302 (murder) of the IPC, and used its powers under Article 142 to release Perarivalan.
Article 142 in Ayodhya verdict
In its 2019 judgment in the Ayodhya case, the Supreme Court made detailed references to Article 142. It said while “the power under Article 142…is not limitless”, the Constitution “authorises the court to pass orders to secure complete justice…” Article 142, it said, “embodies both the notion of justice, equity and good conscience as well as a supplementary power to the court to effect complete justice”.
The court used the extraordinary powers under this provision to grant 5 acres of land in Ayodhya situated outside the disputed area to Muslim parties, saying, in an implicit reference to the demolition of the Babri Masjid in 1992, that it was invoking Article 142 “to ensure that a wrong committed must be remedied”.
“Justice”, the court said, “would not prevail if the court were to overlook the entitlement of the Muslims who have been deprived of the structure of the mosque through means which should not have been employed in a secular nation committed to the rule of law… The Constitution postulates the equality of all faiths. Tolerance and mutual co-existence nourish the secular commitment of our nation and its people.”
The court also invoked Article 142 in favour of the Nirmohi Akhara, who were party to the case. It said: “…Having regard to the historical presence of Nirmohi Akhara at the disputed site and their role, it is necessary for this Court to take recourse to its powers under Article 142 to do complete justice. Hence, we direct that in framing the scheme, an appropriate role in the management would be assigned to the Nirmohi Akhara.”
Article 142 in The Constitution Of India 1949
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
(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
‘A tool for judicial dictatorship’
(The writer is a Supreme Court lawyer)
As a committed democrat, I believe that an inefficient democracy is preferable to an efficient dictatorship and any form of absolutism, even by the judiciary, is unacceptable.
The anathema of democracy is dictatorship, whether in the hands of an individual, a group or an institution. The very soul of a democracy is that the people's will is supreme. Howsoever wise be the 30 adorning the apex court and howsoever noble their motives, they can never speak for 1.2 billion people who speak through their representatives in the legislature.
It is not a case of comparative wisdom or intellect since democracy itself owes its origins in Greece to the revolt against the rule of the intelligentsia. It is for this very reason that the founding fathers of our Constitution provided strictly for the separation of powers, which would maintain a balance and protect against any one institution overpowering or dominating the others.
How then can 30 wise but unelected people exercise powers akin to legislation? More so, when the selection of future members into this august group is decided by five of their wisest, with none else given a me aningful role in such appointments. Such power to self-propagate has also been conferred by their own judgments.
While the independence of the judiciary is to be strictly protected, with it comes the responsibility of acting within constitutional boundaries and resisting the temptation to venture into the terrain of other institutions in the absence of viola tion of constitutional and legal principles.
Over the recent past, however, increasing powers are traced to Article 142 to decide a host of issues that would fall within the domain of other institutions. The exercise of such powers with no one to turn to against such exercise except the very body that had exercised the powers in the first place is certainly not democratic and bor ders on authoritarianism or at the very least, rule of the intelligentsia.
Article 142 is an extraordinary power to be sparingly used where there is a legislative or executive void and comes into play when the conclusion is founded on statute or law but a remedy has to be created. Surely , its purpose is not replacing the wisdom of other institutions with that of the judiciary .
The recent judgment of the apex court overriding the objections of the states has also prohibited luxury hotels within 500 metres of a highway from serving liquor in restaurants, banquet halls or even to guests in their rooms.
To name a few, Aero City in Delhi, Leela in Mumbai, and Grand Chola in Chennai are all subject to this embargo.Members cannot have a drink in iconic clubs like the Gymkhana. Even more surprising is that this fatwa was passed in a litigation expressing concern over liquor shops operating on the fringe of highways proving a temptation to passing motorists and encouraging drunk driving.
The judgment was surprising as it is highly likely that a person going to Bukhara for dinner does so to break the monotony of his driving or that the hotel guest having a nightcap would be tempted to rush out and start driving.
That stopping such people from drinking would make the highway safer defies logic. If it was to enforce a prohibition on the consumption of liquor, it was beyond the powers of the court and in the domain of the legislature. The only source relied on for the exercise of such power by the court is Article 142 of the Constitution which empowers it to pass orders to do complete justice to parties. Today it has become as uncertain and elastic in its use as an anteater's tongue.
It is certainly not to decide that it would be more - wholesome for the populace if hotels legally built and legally serving numerous needs ought not to serve liquor since they may be used as a watering hole by thirsting motorists.
Art 142 used to end marriage after wife skips hearings
The Supreme Court dissolved a marriage after the wife refused to respond to its notice to appear in court to contest the case. The husband had been fighting a legal battle for the last three years after his wife withdrew her consent for divorce after filing a joint petition in the family court.
A bench of Justices R K Agrawal and Abhay Manohar Sapre invoked the SC’s extraordinary power granted under Article 142 to dissolve the marriage without hearing the wife as she refused to respond to its notice issued on the husband’s plea. The court said she was not interested in keeping the marital relationship alive and allowed the husband’s divorce plea. Article 142 empowers the SC to pass order as is necessary for doing complete justice in any cause or matter pending before it. The couple got married in 2013 but the relationship soured soon after and they agreed to separate. They filed a joint petition in the family court seeking dissolution of marriage through mutual consent. The wife thereafter did not appear before the court which finally dismissed the petition. The man then approached the High Court of Judicature at Hyderabad which refused to grant him divorce after his wife’s lawyer contended that she had not given consent.
Agreeing to examine his plea, the apex court had issued a notice to the wife to file her response but neither she not her lawyer appeared to argue the case. She did not appear before the court on 18 dates when the matter was taken up for hearing.
Taking into account her conduct, the apex court dissolved the marriage and said there was no dispute that the couple had entered into an agreement to end the marital relationship.
