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Supreme Courts Power to do Complete Justice

Info: 5210 words (21 pages) Essay
Published: 17th Jul 2019

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Jurisdiction / Tag(s): Indian law

Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc. 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 [1] prescribe.

Objective of the Project

The Hon’ble Supreme Court of India is the custodian and guarantor of the rights of the citizens, and is vested with the sacred duty to do justice between the parties. The objective of the project is an examination into the nature and scope of the plenary jurisdiction as enshrined in Ar. 142 (1) of the Constitution of India. The primary question is as to the efficacy of the article to do complete justice. The contemporaneous question which arises is that as the court is already under an obligation to render justice between the parties, whenever there is a lis, the matter being brought before it, then why the need of a separate article which spells out an undefined jurisdiction to the court, to pass any order or decree so as to do complete justice. The project will point out as to the inconsistent pattern vis-à-vis the use of Ar. 142 of the Constitution of India, by the apex court, and to the recent trend of invoking it, rather excessively. It shall be an earnest endeavour to frame a blueprint as to the circumstances and situations which merit the use of Ar. 142, although the same cannot be expected to be an exhaustive in nature. The debated notion that whether Ar. 142 can be invoked to pass a direction of order, which is in conflict or contravention of express statutory provisions shall also be examined into. The same shall be viewed through the prism of constitutionalism and in light of the recent verdicts in Leila David v. State of Maharashtra [2] and Anil Kumar Jain v. Maya Jain [3] . The recent reservations expressed by the Hon’ble Supreme Court vis-à-vis Ar. 142 in National Insurance Co. Ltd. v. Parvathneni [4] and University of Kerala v. Council of Principals of Colleges, Kerala [5] shall also be perused.

Ar. 142 (1): Nature and Scope

Ar. 142 vests the Supreme Court with a repository of discretionary power that can be wielded in appropriate circumstances to deliver “complete justice" in a given case. Only Bangladesh (Ar. 104) and Nepal [Ar. 88 (2)] include similar provisions of their constitutions. [6] The apex court in Ashok Kumar Gupta v. State of U.P. [7] has defined the phrase “complete justice" in the following manner: “The phrase “complete justice" engrafted in Ar. 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 Ar. 32, 136 and 141 of the Constitution." The jurisdiction and powers under Ar. 142 are supplementary in nature and are provided to for doing complete justice in any matter. The expressions ‘cause’ or ‘matter’ include any proceeding pending in the court and would cover almost every kind of proceeding in the court including civil or criminal, whether interlocutory or final, and whether before or judgement. The exercise of the power is left completely to the discretion of the Supreme Court. [8] Referring to Ar. 142 (1) the Supreme Court in Supreme Court Bar Association v. U.O.I. [9] opined: “The plenary powers of the Supreme Court under Ar. 142 of the Constitution are inherent in the court and are complementary to those powers which are specifically conferred on the court by various statutes though are not limited by those statutes . These powers also exist independent of statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power exists as a separate and independent basis of jurisdiction apart from the statutes. This plenary jurisdiction is, thus, the residual source of power which this court mat draw upon in as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administrating justice according to law….." Narrow interpretation of Ar. 142 (1): The apex court had initially interpreted the article in a restricted and narrow sense, thereby subjecting its jurisdiction to certain limits. In Prem Chand Garg v. Excise Commr [10] the court had suggested that its power under Ar. 142 (1) cannot be exercised against a definite statutory provision. The same was reiterated in A.R. Antulay v. R.S. Nayak [11] . The expansive interpretation: This view was overturned by the Supreme Court in Delhi Judicial Service Assn. v. State of Gujarat [12]  wherein K.N. Singh, J. (as he then was) for a three-Member 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." These observations were approved by the Constitution Bench which decided Union Carbide Corpn. v. Union of India. [13] The harmonious approach: The Supreme Court adopted a harmonious approach in Supreme Court Bar Association v. U.O.I. [14] reconciling between the two abovementioned approaches. The court speaking through Dr. A.S. Anand, J. (as the learned Chief Justice then was) “Indeed, these 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 in a statute dealing expressly with the subject." [15] The apex court has emphasized that the power given to it under Ar. 142 is conceived to meet situations which cannot be effectively and appropriately tackled by the existing legal provisions. The Supreme Court has left the power under Ar. 142 “undefined and uncatlogued" so that “it remains elastic enough to be moulded to suit the given situation." [16]

Self imposed discipline by the Hon’ble Supreme Court of India

The powers conferred by Ar. 142 (1) allow the apex court to pass any directions and orders in any matter pending before it. There is no ipso facto limitation or inherent safety valve in the said article to prevent the court from invoking its inherent power. The nature of the power must lead the court to set limits for itself within which to exercise such powers. Ar. 142 is curative in nature; the power under Ar. 142 is meant to “supplement" and not “supplant" substantive law applicable to the case under consideration. Substantive statutory provision dealing with the subject-matter of a given case cannot be altogether ignored by the Supreme Court while making an order under Ar. 142 (1). The power is not to be exercised in a case where there is no basis of law to form an edifice for building up a super structure. [17] The Supreme Court has cautioned: ‘The nature and ambit of the power of this court under Ar. 142 of the Constitution of India, no doubt is meant to do complete justice between the parties, but at the same time the court has to bear in mind that the power is conceived to meet the situations which cannot be effectively and appropriately tackled by the existing provisions of law." [18] The apex court in this regard has also observed: “As adequate remedy is available to them in law, ordinarily, the same should be directed to be followed. A case of very exceptional nature must be made out for invoking the extraordinary constitutional jurisdiction of a court." [19]

Directions and Orders under Ar. 142 (1) not to be construed as binding precedents

In the exercise of powers under Ar. 32 read with Ar. 142, the Supreme Court has issued guidelines and directions in a large number of cases. Guidelines on the adoption of minor children by foreigners [20] , norms for the appointment of and transfer of judges [21] , prevention of sexual harassment of women at the work place. [22] The Supreme Court in a plethora of decisions has felt constrained to pass orders and directions under Ar. 142 in view of various interim orders that had been passed by the High Court’s from time to time in several writ petitions. There are several orders which have been passed by the apex court to avoid further litigation and to reconcile seemingly conflicting interim orders issued by the High Courts. Such directions passed under Ar. 142 cannot constitute a binding precedent. [23] The High Court should take care and make a distinction between the ratio decidendi and directions issued under Ar. 142. This will prevent the High Court from treating issues under Ar. 142 as the law laid down by the Supreme Court. Often, directions issued under Ar. 142 are only to relax the application of law or, the rigour of law in view of the peculiar facts of a case r the uncertainty of the law so as to do complete justice. [24] The rationale why the directions and orders under Ar. 142 are not to be treated as binding precedents is that Ar. 142 is always exercised in cases where the facts and circumstances are “peculiar" in nature and the same merit a certain deviation from the procedural laws. It is submitted that although directions may not have a binding value by a precedent, it is always open to the High Court to act under Ar. 226 to issue directions similar to those issued by the Supreme Court. [25]

The non-availability of Ar. 142 (1) to the High Courts

The high Court’s power under Ar. 226 of the Constitution of India is not at par with the constitutional jurisdiction conferred upon the Supreme Court under Ar. 142. The Supreme Courts power under Ar. 142 is not available to High Courts and the High Courts have no power to do complete justice. The abovementioned notions are nebulous to the extent, as they contemplate that the High Courts have no power to do complete justice in a lis, and it is only the Supreme Court which can do “complete justice". If this is the correct position, then every litigant who has not got complete justice from the High Court has to appeal to the Supreme Court. It is most humbly submitted the word justice is of wide import and cannot be cabined within doctrinaire limits. Justice means that it shall always be ‘complete’ in nature, and that every nerve in the court of law shall be strained for achieving the same. Even the Preamble to the Constitution of India contemplates that justice shall be social, economic and political in nature. Dispensation of justice does not create a hierarchy among the courts of law. The correct position is that the Supreme Court and the High Courts are both empowered to do complete justice under the Constitution of India; however the latter has to dispense justice within a circumscribed domain and the Supreme Court of India, being the final court of law, knows no bounds and limitations while dispensing justice to the parties. The Supreme Court has maintained its supremacy by reiterating that the inherent power under Ar. 142 is not available to the High Courts or other subordinate courts. The court expressed the same in Anil Kumar Jain v. Maya Jain [26] “In exercise of its extraordinary powers under Article 142 of the Constitution the Supreme Court can grant relief to the parties without even waiting for the statutory period of six months stipulated in Section 13B of the aforesaid Act. This doctrine of irretrievable break-down of marriage is not available even to the High Court’s which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution. Neither the civil courts nor even the High Courts can, therefore, pass orders before the periods prescribed under the relevant provisions of the Act or on grounds not provided for in Section 13 and 13B of the Hindu Marriage Act, 1955."

Factors (or conditions precedent) to be taken into consideration while invoking Ar. 142 (1)

The Hon’ble Supreme Court of India in a plethora of cases has laid down several conditions and prerequisites which are essential and are to be taken into consideration before invoking Ar. 142 (1). The same are being laid down and a blueprint is being envisaged in addition to the stated conditions. The said factors are in no manner exhaustive in nature and it is always open to the apex court to weigh the circumstances, as per the different facts of the case, which may merit a departure from the procedural and established laws. The relevant facts and circumstances of the matter, the decisions of the Supreme Court in similar cases. The doctrine of proportionality from the recent trend of decisions in preference to Wednedbury doctrine of unreasonableness. [27] The peculiar and perverse nature of the case, which merit a departure from the procedural laws, so as to remedy the grievances of the instant case. In view of Ar. 145 (5), the concurrence of a majority of judges present at the hearing of a case is necessary for any judgement or order. Hence, for the exercise of Ar. 142 (1) it is necessary that a majority of the judges of the division bench must be in favour of exercising the inherent power of the court enshrined in Ar. 142. Justice K. Ramaswamy in Gaurav Jain v. U.O.I [28] (a PIL) passed orders under Ar. 142 of the Constitution for alleviating the conditions of prostitutes. However, the second learned judge was not in favour of exercising the inherent power of the court. The part of the order where Justice Ramaswamy and his brother judge differed as to the exercise of Ar. 142 was reviewed by the apex court in Gaurav Jain v. U.O.I. [29] The court held: “Ar. 142 does not and cannot override Ar. 145 (5). The decrees or orders issued under Ar. 142 must be issued with the concurrence of the majority of judges hearing the matter. Ar. 142 would not entitle a Judge sitting on a bench of two judges, who differs from his colleague, to issue directions for the enforcement of his order although it may not be agreed order of the bench of two judges. If this were to be permitted, it would lead to conflicting directions being issued by each judge under Ar. 142, directions which may quite possibly nullify the directions given by another judge on the same bench." While assessing the needs of complete justice the Supreme Court has to take into consideration 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. [30] The power should be used in cases where there is a manifest error and the non-exercise of Ar. 142 (1) may lead to the travesty of justice. In other words there must be strong and compelling reasons that the parties to instant case would suffer from palpable injustice if the inherent power of the court is not exercised. The same is the case where the law or the statutory provisions are silent and the law is found to be incapable of redressing the grievances of the parties, or where the adherence to the statutory provisions or procedural rules would be unjustified in the facts and circumstances of the case. [31]

The recent trend of invoking Ar. 142 (1)

The Supreme Court has recently in a plethora of decisions invoked Ar. 142 (1) of the Constitution of India and has passed appropriate directions and orders. On the careful marshalling of these decisions, it becomes evident that the Supreme Court has expressed its reservations and doubts as to the nature and scope of Ar. 142 (1). It is rather interesting to point out such reservations and doubts have been expressed, time and again by the same learned judges of the Supreme Court. Also, another fact which merits consideration is that Ar. 142 (1) has been invoked time and again by the same judges to pass appropriate directions and orders. [32] The different opinions expressed by the judges reflect the ambiguous nature of Ar. 142 (1). A bench comprising of Katju and Ganguly, J.J have twice referred the question of Ar. 142 to the Chief Justice of India under Order 7 Rule II of the Supreme Court Rules, 1966, for constituting a constitutional bench so as to remove the grey areas vis-à-vis Ar. 142. [33] Recently a bench comprising of Justice Aftab Alam and Dr. B.S. Chauhan refused to invoke Ar. 142 (1) in a case where a highly qualified couple wanted divorce after 3 months of marriage. The couple was reluctant to even wait for the prescribed statutory period of six months as mentioned in S. 13-B (1) of the Hindu Marriage Act, and wanted a decree of divorce immediately. The court refused to pass the decree in contravention of the express statutory provisions of the Hindu Marriage Act. [34] On a meticulous perusal of some recent dicta of the Hon’ble Supreme Court, another interesting fact that is revealed is that the court has been reluctant to invoke Ar. 142, when a plea for the same is made by the counsel for the parties. The decisions reflect that the court has invoked its inherent powers suo-moto in cases where there was no submission on behalf of the counsels to invoke Ar. 142 for passing appropriate directions and orders. [35]


Decided On: 21.10.2009 Hon'ble Judges: Altamas Kabir, G.S. Singhvi and H.L. Dattu, JJ.

The Factual Matrix of the case

In the instant case writ petition was filed by Leila Davidin the Supreme Court on 4thAugust, 2008, under Article 32 of the Constitution of India, inter alia, asking the court to pass several directions and orders. One of the reliefs sought was to issue the writ of mandamus directing criminal proceedings and strongest punishment to 12 judges of the Bombay High Court. At the outset, the Court observed that some of the allegations made in the two writ petitions, as well as in the supporting affidavits, appeared prima facie to be per se contempt of this Court. Although, the petitioners were asked to withdraw the allegations made, they refused to do so and submitted that they stood by the said averments and strongly urged the Court to issue process to arrest the 12 Judges of the High Court of Bombay mentioned in prayer (4) to the Writ Petition. The court initiated contempt proceedings against the petitioner and the matters was listed to be heard by a bench comprising of Pasayat and Ganguly J.J. When the hearing commenced, the writ petitioners disrupted the proceedings by using very offensive, intemperate and abusive language at a high pitch. The order recorded by Dr. Justice Pasayat indicates that one of the petitioners had gone to the extent of saying that the Judges should be jailed for having initiated proceedings against them and that the Judges should be punished for not taking care of their fundamental rights. One of the writ petitioners, namely, Dr. Sarita Parikh, went to the extent of throwing footwear at the Judges. His Lordship also recorded that all this happened in the presence of the learned Solicitor General of India (now Attorney General for India), two learned Additional Solicitor Generals and a large number of learned Counsel and advocates, including the President of the Supreme Court Advocates-on-Record Association. Justice Pasayat held the behaviour of the petitioners to be contumacious in nature and derogatory, holding them liable for contempt of court in the face of the court. His Lordship felt that there was no need to issue any notice and holding them to be guilty of criminal contempt of this Court, inflicted a punishment of three months' simple imprisonment on them.

The Majority decision

The matter was finally put to rest when the matter was posted before a bench comprising of Kabir, Singvi and Dattu, J.J. The majority decision of the court was declared by exercising the inherent power of the court as mentioned in Ar. 142 (1) of the Constitution of India. Justice Kabir was of the opinion that Justice Pasayat was well within his jurisdiction to deal with the matter in summary form, in the light of the court’s jurisdiction under Ar. 129 and 142 of the Constitution. The court accepted the submissions of the Attorney General that S. 14 of the Contempt of Courts Act (hereinafter for the sake of brevity referred as the Act) did not preclude the court from dealing the contempt proceeding in summary manner and it only prescribed a procedure to be followed normally and not in exceptional circumstances as the instant one. The court justified its stand by saying that the contemnors showed no signs of remorse and instead filled a separate writ petition, not only reiterating their earlier stand, but also attacking the Office of the President of India, the Prime Minister, Attorney General and other high dignitaries. The contemnors were afforded a chance by the court to purge their behaviour by tendering an apology, but they continued the use of indecorous and indecent language, trying to scandalize the court in the eyes of public. The petitioners also claimed that they had a fundamental right as envisaged by Ar. 19 (1) (a) and Ar. 21 of the Constitution of India, and the same was being rightfully exercised. The court was of the opinion that where the incident had taken place within the precincts of the court room, within the sight of the learned judges and senior advocates like the Attorney General and the Solicitor General, the compliance of the procedure in S. 14 of the Act was redundant as the acts by the contemnors were intentional in nature. Hence the court felt that it was justified in the instant case to give a goby to the principles of natural justice i.e. the principle of audi altrem partem.

The dissenting opinion of Justice A.K. Ganguly

Justice Ganguly seems to have taken a pedantic approach of the entire matter. The learned judge was of the opinion that compliance of the procedure as envisaged in S. 14 of the Act was mandatory. According to him, sentencing the contemnors to imprisonment, without giving them an opportunity to defend themselves was in contravention of the due process of law, and would impinge upon the personal liberty of the individuals as guaranteed by Ar. 21 of the Constitution of India. The learned judge struck a word of caution that it would be a great travesty of justice, if the contemnors were condemned unheard, denying them principles of natural justice, by giving a goby to the doctrine of audi altrem partem. He was of the opinion that although the conduct of the contemnors was contumacious in nature and amounted to contempt of court in the face of the Supreme Court, they could not be sentenced without being afforded a chance to defend themselves. Although the contemnors showed no signs of remorse of their behaviour the court should have a given them a chance to tender an apology. Justice Ganguly was of the opinion that Ar. 142 could not be invoked in contravention of the express provisions of the statute, i.e. S. 14 of the Act, as it would amount to supplanting the law, which was not the correct position of law, vis-à-vis Ar. 142. Section 14(1) of the Act prescribes that in initiating a contempt proceeding and when contempt is allegedly committed in the face of the Court, the Court has to inform the alleged contemnors in writing the charge of contempt and then afford them an opportunity to make their defence to the charge and thereafter on taking such evidence as may be necessary or as may be offered by the persons and after hearing them, proceed either forthwith or after adjournment to determine the matter of the charge and may make such order for the punishment or discharge of such persons as may be just. Rationale behind Justice Ganguly’s dissenting opinion: Justice Ganguly’s dissenting opinion shades at variance from that of Pasayat, J. and that of the majority decision as delivered by Kabeer, J. The rationale for the same has been envisaged in his judgement as follows: “I am of the view that this Court's power under Article 142 of the Constitution is not meant to circumvent clear statutory requirements. The opening words of Article 142 shows that the Supreme Court shall exercise its power under the said Article "in exercise of its jurisdiction'". Therefore, the Jurisdiction of the Supreme Court in initiating proceeding for contempt under Section 14 of the said Act must be exercised following the statutory dispensation. In other words, Supreme Court cannot, while exercising its jurisdiction under Article 142, render salutary provisions of Statute nugatory and otiose. These provisions as noted above give effect to the fundamental guarantee under Article 21 of the Constitution." [36]


In my opinion Ar. 142 (1) of the Constitution is an enabling provision which empowers the apex court to do complete justice in cases where the law is silent or in cases which have peculiar facts and circumstances. The Hon’ble Supreme Court has exhibited maturity and faith in the rule of law by imposing on itself restraints, so as to prevent the abuse the inherent powers. It has always been the earnest endeavour of our highest court that every nerve shall be strained in the court of law to meet the ends of justice. The application of law with a pedantic rigour, in my view, is otiose in nature if the litigants are unable to get justice after fighting a legal battle in the courts of law. It is the protective and healing power of the court which goes a long way in achieving the ends of justice. The correct position vis-à-vis Ar. 142 is that the court should ordinarily follow the procedure prescribed in the statutory enactments, balancing it with a humane and equitable approach. But in circumstances where the law is found to be inadequate or the court is of the opinion that there is a prospect of palpable injustice being done to the parties, it should exercise its inherent powers to do complete justice. The absence of any Constitutional Assembly Debate on Ar. 142 (Ar. 112 of the Draft Constitution) further suggests that the founding fathers wanted the powers under this article to remain undefined in nature, so as to enable the court to develop its own jurisprudence. It is submitted that Ar. 142 is a repository of unlimited powers, to do complete justice.

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