The Constitutional power is exercisable by Supreme Court under Article 142(1) of the Constitution of India, and the inherent power of the civil court recognised by section 151 of the C.P.C. and the inherent power of the High Court under Section 482 Cr.P.C., 1973 which empower the civil court in civil cases and the High Court in criminal cases to pass such orders as may be necessary to meet the `ends of justice’ or to prevent abuse of the process of court. The expression `ends of justice’ refers to the best interest of the public within the four corners of the law, albeit the courts are not empowered to act contrary to the procedure on the particular aspect of law provided in the C.P.C. and the Cr.P.C.
Where the C.P.C. and the Cr.P.C. are silent, the civil court or the High Court,[1] respectively, can pass orders in the interest of the public, for the simple reason that no legislation is capable of contemplating all possible circumstances that may arise in future litigation and consequently provide a procedure for them.
Thus, the C.P.C. and the Cr.P.C. should not be read as to limit or otherwise affect the inherent power of the civil court and the High Court, respectively, to make such order as is necessary for the `ends of justice’, or to prevent abuse of the process of the court. The Constitutional power conferred by Article 142(1) of the Constitution of India on Supreme Court is not a replication of the inherent power vested with the civil court under the C.P.C., and the High Court under the Cr.P.C.
The Court in the case of Shilpa Shailash v. Varun Srinivasan (2023) has held that,
Given the aforesaid background and judgments of Supreme Court, the plenary and conscientious power conferred on Supreme Court under Article 142(1) of the Constitution of India, seemingly unhindered, is tempered or bounded by restraint, which must be exercised based on fundamental considerations of general and specific public policy. Fundamental general conditions of public policy refer to the fundamental rights, secularism, federalism, and other basic features of the Constitution of India. Specific public policy should be understood as some express pre-eminent prohibition in any substantive law, and not stipulations and requirements to a particular statutory scheme. It should not contravene a fundamental and non-derogable principle at the core of the statute.
Even in the strictest sense, it was never doubted or debated that Supreme Court is empowered under Article 142(1) of the Constitution of India to do `complete justice’ without being bound by the relevant provisions of procedure, if it is satisfied that the departure from the said procedure is necessary to do `complete justice’ between the parties. Difference between procedural and substantive law in jurisprudential terms is contentious, albeit not necessary to be examined in depth in the present decision, as in terms of the dictum enunciated by Supreme Court in Union Carbide Corporation (supra) and Supreme Court Bar Association (supra), exercise of power under Article 142(1) of the Constitution of India to do `complete justice’ in a `cause or matter’ is prohibited only when the exercise is to pass an order which is plainly and expressly barred by statutory provisions of substantive law based on fundamental considerations of general or specific public policy.
As explained in Supreme Court Bar Association (supra), the exercise of power under Article 142(1) of the Constitution of India being curative in nature, Supreme Court would not ordinarily pass an order ignoring or disregarding a statutory provision governing the subject, except to balance the equities between conflicting claims of the litigating parties by ironing out creases in a `cause or matter’ before it. In this sense, Supreme Court is not a forum of restricted jurisdiction when it decides and settles the dispute in a `cause or matter’.
While Supreme Court cannot supplant the substantive law by building a new edifice where none existed earlier, or by ignoring express substantive statutory law provisions, it is a problem-solver in the nebulous areas. As long as `complete justice’ required by the `cause or matter’ is achieved without violating fundamental principles of general or specific public policy, the exercise of the power and discretion under Article 142(1) is valid and as per the Constitution of India. This is the reason why the power under Article 142(1) of the Constitution of India is undefined and uncatalogued, so as to ensure elasticity to mould relief to suit a given situation. The fact that the power is conferred only on Supreme Court is an assurance that it will be used with due restraint and circumspection.
Some jurists have opined that the judgments on the powers of Supreme Court under Article 142(1) of the Constitution of India can be divided into three phases. The first phase till late 1980s is reflected in the judgments of Prem Chand Garg and A.R. Antulay cases, which inter alia held that the directions should not be repugnant to and in violation of specific statutory provision and is limited to deviation from the rules of procedure. Further, the direction must not infringe the Fundamental Rights of the individual, which proposition has never been doubted and holds good in phase two and three.
The second phase has its foundation in the ratio of the judgment of the 11-Judge Constitution Bench of Supreme Court in I. C. Golak Nath, dealing with the doctrine of prospective overruling, which held that Articles 32, 141 and 142 are couched in such wide and elastic terms as to enable Supreme Court to formulate legal doctrines to meet the ends of justice, the only limitation thereon being reason, restraint and injustice.
In Delhi Judicial Service Association, Supreme Court observes that any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of Supreme Court to issue any order or direction to do `complete justice’ in any `cause’ or `matter’. Finally, the moderated approach has its origin in Union Carbide Corporation, which holds that Supreme Court, in exercising powers under Article 142 and in assessing the needs of `complete justice’ of a `cause’ or `matter’, 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 judgment of Supreme Court Bar Association, applies cautious and balanced approach, to hold that Article 142 being curative in nature and a constitutional power cannot be controlled by any statutory provision, but this power is not meant to be exercised ignoring the statutory provisions or directly in conflict with what is expressly provided in the statute. At the same-time, it observes, that Supreme Court will not ordinarily discard a statutory provision governing the subject, except perhaps to balance the equities between the conflicting claims of the parties to “iron out the creases” in a `cause or matter’ before it.
Reference
Shilpa Shailash v. Varun Srinivasan (2023)
[1] For Section 151 C.P.C. see – Jet Ply Wood (P.) Ltd. and Another v. Madhukar Nowlakha and Others, (2006) 3 SCC 699; and Bhagat Singh Bugga v. Dewan Jagbir Sawhney, 1941 SCC OnLine Cal 247. For Section 482 Cr.P.C., 1973 see – Popular Muthiah v. State Represented By Inspector Of Police, (2006) 7 SCC 296; and Dinesh Dutt Joshi v. State of Rajasthan and Another, (2001) 8 SCC 570