Complete & final Justice by Supreme Court of India under Article 142 of Constitution of India
Article 142 of Constitution of India empowers the Hon’ble Supreme Court of India to pass any decree or order necessary for doing “complete justice” in any matter pending before it. That on perusal of judgment passed by Supreme Court invoking Article 142(1) reveals that this power has been employed by the Supreme Court for two purposes namely (1) to give a go-by to the procedural requirement (2) to rectify substantive error by bringing finality to a cause or matter by invoking Article 142 at the time of passing a decree or making an order. It is to be noted that Article 142(1) does not confer a fresh source of power to the Supreme Court for creating new law nor does it create an independent basis of jurisdiction but it act supplementary to Articles 32 and 136 of the Constitution of India. Basically power enshrined under Article 142 of Constitution of India is inherent power of Apex Court, therefore it can be safely concluded that power under Article 142(1) is a repository of unenumerated power which has been left ‘undefined and uncatalogued’ so that ‘it remains elastic enough to be moulded to suit in the given situation.
In the past, Supreme Court has interpreted the power enshrined under Article 142 of Constitution of India in restricted or limited sense. In Prem Chand Garg v. Excise Commissoner, U.P held that "Though the powers conferred on this Court under Article 142(1) are very wide, and the same can be exercised for doing complete justice in any case, this court cannot even under Article 142(1) make an order plainly inconsistent with the express statutory provisions of substantive law, much less, inconsistent with any Constitutional provision". This view was endorsed by a nine-judge Bench in Naresh Shridhar Mirajkar v. State of Maharashtra and was reiterated by a seven-Judge Bench in A.R. Antulay v. R.S. Nayak.
However, in recent past, Supreme Court has in real sense has expanded scope of the power and the source of this expanded power is Art. 142 of the Constitution of India only exercised powers as defined under Indian constitution but for doing justice. In an eminent decision of a three-judge Bench decision in Delhi Judicial Service Association v. State of Gujarat the Supreme Court extolled its power to new heights by declaring Article 142 as a part of basic structure of the Constitution. Supreme Court held that: “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...No enactment of Central or State Legislature can limit or restrict the power of this Court under Article 142 of the Constitution though while exercising power under Article 142 of the Constitution, the Court must take into consideration the statutory provisions regulating the matter in dispute.”
The Supreme Court in this case rectified the error of In Re, Vinay Chandra Mishra by holding that the suspension of an advocate can only be done by the Bar Council of India under the Advocates Act and the Supreme Court cannot usurp this statutory power to suspend an advocate by invoking Article 142. That Hon’ble Supreme Court held that “It, however, needs to be remembered that the powers conferred to 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 case pending before it...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 brief of cases to be discussed wherein in special circumstances the Hon’ble Supreme Court has exercise its jurisdiction under Article 142 of Constitution of India for doing complete justice to the parties. A two-judge bench of the apex court in Neeti Malviya v. Rakesh Malviya has referred this question to a three-judge bench, that whether the period prescribed in Section 13B(2) of the Act can be waived or reduced by the Supreme Court in exercise of its jurisdiction under Article 142 of the Constitution. In fact, the Supreme Court has previously invoked Article 142(1) to give a go-by to the procedure in Section 13B(2) of the Act in both situations of: First, when the Court grants a decree of divorce by mutual consent or directs the subordinate Court for the same, by waiving the period of interregnum as mentioned in S. 13B(2) of the Act.
In Supreme Court Bar Assn. case was referred to in M.S. Ahlawat v. State of Haryana wherein it was held that the order passed by the Supreme Court by issuing a show-cause notice and conviction summarily under Section 193 of the Indian Penal Code for making false statement, was one without jurisdiction and such an order could not be passed relying on Article 142.
In A.B. Bhaskara Rao v. CBI, wherein Supreme Court held that the powers under Article 142 of the Constitution cannot be exercised by this Court in contravention of any statutory provisions.
That Supreme Court Court had in the famous Vishaka case 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. The Supreme Court has ordered the dissolution of a marriage of an estranged couple, living separately for 22 years and failing to reconcile their differences. The court termed the marriage “unworkable, emotionally dead, beyond salvage and broken down irretrievably”. A bench of Justices Sanjay Kishan Kaul and M.R. Shah said: “We are of the opinion that while protecting the interest of the respondent-wife to compensate her by way of a lump sum permanent alimony, this is a fit case to exercise the powers under Article 142 of the Constitution of India and to dissolve the marriage between the parties.”
In Sandeep Subhash Parate v. State of Maharashtra & Ors.,the Supreme Court was dealing with a matter wherein the appellant had completed his Engineering degree after obtaining admission on the basis of a false caste certificate. Though the court was of the opinion that such practices should not be allowed, however, it invoked its power under Article 142 to do complete justice given the fact that the student had already completed his education and his time and efforts would go waste if he would now be denied a degree. Therefore, the court in order to do complete justice directed the student to pay a cost and in return, the college was to issue him a degree, despite cancelling the certificate issued to him. Whereas in Famous Vyapam case namely [Nidhi Kaim v. State of Madhya Pradesh, 2017 SCC OnLine SC 123, Supreme Court refused to apply Article 142 of Constitution of India and did not give the benefit to MBBS students on the ground that actions of the students constitute acts of deceit, invading into a righteous social order.
The Constitution Bench of the Supreme Court in Secretary, State of Karnataka & Ors. v. Umadevi (3)& Ors. allowed regularization of irregularly appointed persons in exercise of its power under Article 142 simply because they had worked on the post/department for more than 10 years without any challenge. However, the court clarified it to be a one time measure and not a rule.
In short, great plenary power is discretionary and extraordinary and can’t be exercised in a mechanical manner for which there must be strong and cogent reasons for exercising powers under Article 142 for complete justice and to fill in lacuna or vacuum in law and not as part of regular exercise of jurisdiction of the court.