By - Praveen Pandey on April 1, 2020
The Indian Judiciary and the constitution of India believe that every citizen of India must get “complete justice”. The Constitution of India under Article 142 grants the power to the Supreme Court for passing any decree to do “complete justice”. But since the past few years, the said Article 142 has become a gigantic part of the Supreme Court which is invoked several times to decide the case and to do the “complete justice”. Further, there is no specific guideline or rule provided by the law which explains when, where and under which circumstances the Apex Court can invoke the said article to do “complete justice”. To better understand Article 142, firstly, we will have to read the definition which is given as under:
“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.”
While going through the abovementioned definition, we understand that our constitution has given a very powerful sword to the Apex Court for complete justice in any case or matter. While going through the judgments that have been passed by the Apex Court under Article 142, we found that the Supreme 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.
Further, below is an analysis of a few landmark judgments to find out whether the Apex Court achieved the real meaning of Article 142 to do “Complete Justice” or not.
The Hon’ble Supreme Court has recently 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 the said case the Hon’ble Supreme Court described its power under Article 142 - "The phrase 'is necessary for doing complete justice' is of a wide amplitude and encompasses a power of equity which is employed when the strict application of the law is inadequate to produce a just outcome. The demands of justice require a close attention not just to positive law but also to the silences of positive law to find within its interstices, a solution that is equitable and just. The legal enterprise is premised on the application of generally worded laws to the specifics of a case before courts."
UNION CARBIDE CASE (BHOPAL GAS TRAGEDY):
In 1989, the Hon’ble Supreme Court invoked Article 142 during the infamous case of Union Carbide and provided relief to the thousands of people who were affected during the black night of Bhopal Gas Tragedy. In the said judgment, the Hon’ble Supreme Court while awarding the compensation of $470 million to victims observed that to do “complete justice” it could even override the laws made by Parliament. The specific part of the judgment is hereunder:
“prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142……..But we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. 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 apex 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. The proposition does not relate to the powers of the Court under Article 142, but only to what is or is not ‘complete justice‘ of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise.”
The abovementioned statement of the Supreme Court of India placed itself above the laws made by Parliament or the legislatures of the States.
COAL BLOCK ALLOCATION CASE:
The Supreme Court used the said provision of the constitution again in 2014 to cancel the allocation of coal blocks granted from 1993 onwards without any guilty of wrongdoing and imposed a penalty of INR 295 per tonne of coal already mined. The Supreme Court did not hear individuals and their particular facts, but only their associations were heard.
SALE OF LIQUOR /ALCOHOL BANNED ON STATE AND NATIONAL HIGHWAYS:
In December 2016 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.
The above-mentioned judgments are some important judgments wherein the Supreme Court invoked Article 142 but the list does not end here. There are several judgments in the queue. When we go through these several judgments, we find that the Supreme Court tried to explain the phrase ‘complete justice’ but it is still blurred. In some judgments, it is mentioned that it could be used when the law of statutes is silent. However, if we analyse judgments on the use of Article 142 it seems like it is used to fill the lacuna of the law. When we go through the judgment on the ban on the sale of liquor near national and state highways, we find that the said judgment has affected many hotels, bars, restaurants and liquors shops which resulted in the unemployment of lakhs of people. Also, in the coal block case without hearing allottees, the apex court imposed a huge penalty on the owner/allottees of coal blocks. It shows that while giving “complete justice” the Apex court ignored the fundamental rights of an individual.
It is true that Article 142 has been invoked for the purpose of doing complete justice at large scale to the different section of the population. But, the judgments passed by the Apex Court have created a lot of confusion and there is no clarity on invoking Article 142. The Apex Court could make a strict guideline that justifies the use of Article 142 and
makes sure that it would be a “complete justice”
for the society without affecting the rights of citizens. The present Attorney
General of India Mr. K.K. Venugopal in his article on the said subject quoted the
words of Justice Benjamin Cardozo, the judge “is not a knight-errant roaming at will in pursuit of his own ideal…”