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CONCEPT OF COMPLETE JUSTICE UNDER INDIAN

CONSTIUTION UNDER ARTICLE 142

INTRODUCTION:

Our constitution confer wide power upon the Supreme Court such as power to grant Special

Leave against the orders or decrees from any court, or Tribunal in the country or to have

exclusive jurisdiction to decide the disputes of the President or Vice President. The law laid

down by the Hon'ble Supreme Court is no doubt the laws of the land binding on all the courts in

the country. Constitution confers powers upon the Supreme Court to ensure that courts do not

suffer from any jurisdictional difficulties to do justice between the parties before it.

Article 142 of the Constitution of India is one such provisions which empowers the Supreme

Court to pass such “ Decree or Order” as may be necessary for doing complete justice between

the parties. In other words Article 142 supplement the powers already conferred upon the

Supreme Court under the constitution to ensure that justice is done and in doing so, the court is

not prohibited by lack of jurisdiction or authority of law. Of late the Supreme Court is

constrained to meet ends of justice by relying upon the Article 142 of the Constitution of India.

While exercising his exceptional powers confers under Article 142, t he Supreme Court has to

face criticism more frequently resorting to invoke Article 142 than before. It is therefore

necessary that the Supreme Court should clearly state that the extended scope of its powers under

Article 142 thereby defining its limits within which Supreme Court may resort to exercise its

power. In this connection it is worthwhile in referring to the judgements of Supreme Court

rendered in Delhi Development Authority Vs. Skipper Construction and another, reported in

1996 4 SCC page 622, wherein the Hon'ble Apex Court while considering the nature and extent

of its own power under Article 142 held that it was advised to leave its power undefined and un-

catalogued so that it remains elastic enough to be molded to suite the situation.

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BRIEF NOTES:

The Hon'ble Apex Court has time and again invoked under Article 142 in a number of cases and

pass orders to do complete justice. It is therefore necessary for us to analyze the implication and

Article 142 to be better equipped to answer whether it is time that the court limits its powers

under Article 142. Article 142 is invoked to meet a situation which cannot be effectively and

properly tackled by existing provisions of law. Thus it appears that existing provision of law

cannot deal with the issue at hand and render justice between the parties. That is why the

Supreme Court would not normally exercise its power under Article 142. In this connection it

would be useful to refer the judgement of the Supreme Court rendered in Ashok Kumar Gupta

Vs. State of U.P. reported in 1997 5 SCC page 201 wherein the Hon'ble Apex Court defined the

power under Article 142. which has observed as follows.

The Phrase 'complete justice' engrafted in Article 142 [1] is the word of width couched with

elasticity to meet myriad situations created by human ingenuity or cause or result of operation of

statute law or law declared under Articles 32, 136 and 141 of the Constitution and cannot be

cribbed or cabined within any limitations or phraseology.

Again in the case of S.Nagaraj Vs. State of Karnataka1, which has observed as follows.

Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities

of law can stand in its way. This wide definition of “justice” ensures that the court can exercise

its powers under Article 142 to do “ Complete justice “ in a range of cases each decided by the

court based on its facts and circumstances. Article 142 also lays down no limitations regarding

causes or the circumstances in which the power is to be exercised. The exercise of such power is

left completely to the discretion of the highest court.

From the above it is seen that the exercise of powers to pass any order or decree in the interest of

justice has been conferred upon the Supreme Court only under Article 142 and in the absence of

such provision, neither the High Court nor the Tribunal do have any similar power. It has been

categorically spelt in the judgement of Apex Court rendered in C.M.Singh Vs. H.T.Krishni, held

that the wide powers given to the court can be used for adding parties to the proceedings pending

before it, or in admitting additional evidence, or in remanding the case, or in allowing a new

point to be raised for the first time.

1 1993 supplement 4 SCC page 595

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Further more, under article 142, the Supreme Court can also grant the relief even to a party

which is not a litigant before the court and omitted to question the impugned order of the Apex

Court. The court also has exercised its wide power under Article 142 to order CBI enquiry

without State Government concern where such consent is required under statute.

SCOPE OF ARTICLE 142 OF CONSTITUTION OF INDIA:

The Hon'ble Supreme Court has often come across several legislations to judicial scrutiny under

the ambit of its power under Article 142 of constitution of India. The question that the court has

often faced is whether an order made under Article 142 being a constitutional power could

override express statutory provisions. The answer to this query is very important as this will

decide the powers of Supreme Court to ignore the express statutory provisions and pass order to

the contrary, in order to do complete justice. In the case of Premchand Vs. Excise Commissioner,

U.P., the Apex Court HEADED BY Justice Gajendragadkar has 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.

The Supreme Court has curtained its power under Article 142 as no such order could be passed

by the court which violates an express statutory provision. However in the noteable case of

A.R.Antulay's case2 , it upheld its earlier judgement when it was held that however wide and

plenary the language of the article, the directions given by the court should not be inconsistent

with, repugnant to or in violation of the specific provisions of any statute.

When things stood so, the Supreme Court had come across redefine the interpretation accorded

under Article 142 in the case of Delhi Judicial Service Association case3, wherein the Supreme

Court reversing the earlier judgement held that No enactment made by the legislature can limit or

restrict the constitutional power of the Supreme Court under Article 142, though the court must

take into consideration the statutory provisions regulating the matter in dispute.

The aforesaid view was reiterated by the court in Union Carbide Vs. Union of India 4, wherein it

held as follows.

2 1988 2 SCC page 6023 1991 4 SCC page 4064 1991 4 SCC page 584

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The proposition that a provision in any ordinary law irrespective of the importance of the public

policy on which it is founded, operates to limit the powers of the Supreme Court under Article

142[1] is unsound and erroneous. 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 Supreme 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.

It is therefore gathered from the above case laws that the view of the Supreme Court even though

statutory provisions are not a limitation for exercising of constitutional power under article 142,

the court while exercising such power should do complete justice. Similarly in the case of

“Supreme Court bar Association Vs. Union of India5, the Supreme Court has come across width

and amplitude of the Court's power under Article 142 and ultimately it laid down the law as

follows.

Indeed these constitutional powers cannot, in any way, be controlled by any statutory provisions

but at the same time 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 Supreme Court has however declined to interfere in exercising the powers under article 142

in a situation, where action under article 142 would amount to contravention of specific

provisions of the Act. One such occasions came up for courts consideration, in the case of

M.C.Mehta Vs. Kamalnath6.

Therefore it is summarized that article 142 can over ride any statutory provisions, but at the same

time it is not profitable for the courts to use its powers in direct confrontation with any express

statutory provisions applicable to any case particular. This is nothing but self imposed

restrictions, but the court can always byepass the same if it wants to provide an equitable remedy

to the litigant. Thus it is an accepted view today, even though the courts have opted to leave their

power under Article 142 undefined, they have over a period of time evolved certain limitation on

exercise of their power. The Apex Court would not be inclined to exercise its power under

Article 142, if a specific statutory provisions envisages to deal with the issue involved until and

unless the same is existed in the interest of complete justice. In the result the position of law lies

5 1998 4 SCC page 4096 2000 6 SCC page 213

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between the aforesaid proposition and maintains a balance between the court powers to do

complete justice on one side as well as giving due regard to existing statutes. The court must give

importance the statutory provisions only in the rare and rarest cases where the interest of

complete justice is genuinely required the court may pass order confronting statutory provision.

Exercising of power by the Hon'ble Apex Court under Article 142 in Matrimonial

Disputes/Criminal Cases.

The Supreme Court has exercised its power even in the case of matrimonial matters that has been

pending for long time in the Tribunal/High Court. The reason is that the matter is adjourned from

time to time on account of reconciliation between the parties, but ultimately that has not

happened. Hence it is indeed an observation of the court that marriage status should, as far as

possible, as long as possible and whenever possible, be maintained.

Reliance is placed on the judgement of the Hon'ble Apex Court in Sangamitra Ghose Vs. Kajal

Kumar Ghosh7, wherein it has been held as follows.

We are fully convinced that the marriage between the parties has irretrievably broken down

because of imcompatibility of temperament. In fact there has been total disappearance of

emotional substratum in the marriage. The matrimonial bond between the parties beyond repair

and that the marriage has been wrecked beyond the hope of salvage and therefore public interest

and interest of all concerned lies in the of the recognition of the fact and to declare defunct de

jure what is already defunct de facto as observed in Naveen Kohil's case8.

Similar view was taken in the case of Sathish Sitole Vs. Ganga9, wherein the Hon'ble Apex Court

has exercised its power under Article 142 of the Constitution of India by directing the dissolution

of marriage broken irretrievably.

Even in the criminal matters, the Supreme Court has exercised its power under Article 142 of the

Constitution of India to pass such decree or make such order as it necessary for being complete

justice in any case of “ Cause” or “matter” pending before it. Reliance is placed in the judgement

of Monica Kumar Vs. State of Uttarpradesh10, wherein the

Supreme Court has held as follows.

7 2007 2 SCC page 2008 2006[4] SCC page 5889 2008 [7] SCC page 73410 2008 8 SCC 781

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Though there is no provision like Section 482 of the Criminal Procedure Code conferring express

power on the Supreme Court to quash or set aside any criminal proceedings pending before a

Criminal court to prevent abuse of process of the court, but the inherent power of this Court

under Article 142 coupled with the plenary and residuary powers under Articles 32 and 136

embraces power to quash criminal proceedings pending before any court to do complete justice

in the matter before this court.

The power to do complete justice under this Article is, in a way, corrective power, which given

preference to equity over law. It is a residuary power, supplementary and complementary to the

powers specially conferred by the statutes to do complete justice between the parties whenever it

is just and equitable to do so. It is intended to prevent any obstruction to the stream of justice.

EXERCISE OF ARTICLE 142 IN THE ABSENCE OF

LEGISLATION:

The Supreme Court has the power to issue directions under Article 142 where none already exist

and such directions shall be binding till such time as new rules are enacted by the legislature on

the subject. Thus it has been held that

ample powers are conferred on the Court under Articles 32, 141, 142 and 144 to issue necessary

directions to fill vacuum till either legislature steps in to cover the gap or the executive

discharges its role.11 (SCC para 49)

The Court had in the famous Vishaka case12 formulated guidelines providing for protection of

women from sexual harassment at the workplace in the absence of any enacted law on the same

and the same are binding on all the courts under Article 141. Thus where there is inaction by the

executive, the judiciary must step in, in exercise of its constitutional obligations to provide a

solution till such time as the legislature acts to perform its role by enacting proper legislation to

cover the field.

11 Vineet Narain v. Union of India, (1998) 1 SCC 226, para 5112 Vishaka v. State of Rajasthan, (1997) 6 SCC 241

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ENHANCED POWER TO SUPREME COURTS:

Experts believe that the Article 142 provides Supreme Court the power to give an enhanced

beneficial meaning to an existing legislation to bring about a harmonious interpretation of the

various provisions of the legislation and the various constitutional provisions.

To make it simpler, suppose there is law that has to be interpreted, this Article enables the

Supreme Court to give it a more beneficial meaning and make its scope broader so that it

benefits the people at large.

Therefore, the Supreme Court can make use of the powers granted to it under the article 142 in

cases wherein the existing provisions of the law are inadequate to deal with the issue at hand and

do adequate justice. The article, however, does not lay down any limitations regarding the causes

or the circumstances in which the power is to be exercised. Also, the decision to exercise this

power has been left completely to the discretion of the Supreme Court.

POWERS OF SUPREME COURTS TO GRANT RELIEF

EVEN TO PARTIES WHO OMMITTED TO CHALLENGE AN

ORDER:

The Supreme Court is also authorized to make any order for the purpose of securing the

attendance of any person, the discovery or production of any documents or investigation or

punishment of any contempt of itself. Further, the Supreme Court can grant relief even to a party

that is not before the court and has omitted to challenge the impugned order before the Supreme

Court. This happened in the case of DESU v. Basanti Devi, (1999).

In the case of B.N. Nagarajan v. State of Mysore, the Supreme Court extended the benefit of the

judgment to those appellants who had not prosecuted their appeals.

The SC has exercised its power under Article 142 to order a CBI inquiry without the State

Government's consent where such consent was required by the statute and did not remove clerks

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even though their appointments were held invalid, as they had put in ten years of service and thus

deserved "justice by mercy."

As per the Article 142, the Supreme Court also has the power to issue directions where none

already exist and such directions shall be binding till such time as new rules are enacted by the

legislature on the subject.

CONCLUSION:

Article 142 was introduced in our constitution to serve the interest of justice. The Supreme Court

is the highest court of the country from which no appeal would lie to any other forum. Its

decision are therefore final and binding. Thus the article 142 was included in our constitution

with a view to ensure that interest of justice are paramount constitution and in doing so, the

Hon'ble Apex Court can disregard any statutory provision/legislation which restricts the court

from performing its constitution obligation. The scope of 142 has again and again came up for

discussion before the Supreme Court and has received several interpretation over the years

starting from Premchand case, wherein the Supreme Court restrained its power held that it

cannot pass any order under article 142 which violates an express statutory provision. However

in the subsequent cases the supreme Court held that article 142 is a constitutional power cannot

be limited by any statutory provision to finally laid down the law beginning from S.C. Bar

association case to Monica Kumar's case, wherein the court laid down two extremes and held

that even though statutory provision cannot be a legal impediment on the courts powers under

Article 142, and that the power is not meant to be exercised where such provision exists. The

Supreme Court has not restricted its power to decide statutory provision as seen in the

matrimonial case and criminal case as referred to above, as opposed to expanding the inherent

powers vested with the Supreme Court under Article 142 of Constitution of India.

 

BIBLIOGRAPHY:

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BOOKS:

1. M.P. Jain, Indian constitutional law.

2. Datar, Arvind P, Datar on Constitution of India.

3. Seervi, H.M., Constitutional Law of India Vol. I & II, III.

WEBSITES:

1. www.lawisgreek.com › Legal Tips

2. www.ebc- india .com/lawyer/ articles /2006_pl_6_2.htm

3. select75.org/13.html