Article 142 of the Constitution grants the power to the Supreme Court of India to do complete justice in any cause or matter pending before it.
Article 142(1) of the Constitution of India reads:
“142. Enforcement of decrees and orders of Supreme Court and orders 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 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 prescribe.”
This provision, apparently unique as it does not have any counterpart in most of the major written constitutions of the world, has its origin in and is inspired from the age-old concepts of justice, equity, and good conscience. Article 142(1) of the Constitution of India, which gives wide and capacious power to the Supreme Court to do `complete justice’ in any `cause or matter’ is significant, as the judgment delivered by Supreme Court ends the litigation between the parties. Given the expansive amplitude of power under Article 142(1) of the Constitution of India, it has been said by the Supreme Court repetitively that the exercise of power must be legitimate, and clamours for caution, mindful of the danger that arises from adopting an individualistic approach as to the exercise of the Constitutional power.
Interpreting Article 142(1) of the Constitution of India, in M. Siddiq (Dead) Through Legal Representatives (Ram Janmabhumi Temple Case) v. Mahant Suresh Das and Others (2020) 1 SCC 1, the Constitution Bench of Supreme Court has summarised the contours of the power as:
“1023. …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. The complexities of human history and activity inevitably lead to unique contests “such as in this case, involving religion, history and the law – which the law, by its general nature, is inadequate to deal with.
Even where positive law is clear, the deliberately wide amplitude of the power under Article 142 empowers a court to pass an order which accords with justice. For justice is the foundation which brings home the purpose of any legal enterprise and on which the legitimacy of the rule of law rests. The equitable power under Article 142 of the Constitution brings to fore the intersection between the general and specific. Courts may find themselves in situations where the silences of the law need to be infused with meaning or the rigours of its rough edges need to be softened for law to retain its humane and compassionate face…”
In the case of Shilpa Shailash v. Varun Srinivasan (2023), the Supreme Court analysing it in thoroughly, has said that,
Words in the above quotation that `the equitable power under Article 142 of the Constitution of India brings to fore the intersection between the general and specific’ laws, should be read as making a reference to the classification of equity by Professor C.K. Allen[1] in two principle forms:
(i) a liberal and humane interpretation of law in general, so far as that is possible without actual antagonism to the law itself – called equity in general; and
(ii) a liberal and humane modification of the law in exceptional cases, not coming within the ambit of the general rule – called particular equity.[2] The words `cause or matter’ in Article 142(1) of the Constitution of India, which particularise and empower Supreme Court to do `complete justice’ in that `cause or matter’, are relatable to particular equity..
This is the reason that it has been held that Article 142(1) of the Constitution of India turns the maxim `equity follows the law’ on its head, as this Article in the Constitution of India gives legal authority to Supreme Court to give precedence to equity over law. This power, like all powers under the Constitution of India, must be contained and regulated, as it has been held that relief based on equity should not disregard the substantive mandate of law based on underlying fundamental general and specific issues of public policy. Subject to this limitation, Supreme Court, while moulding relief, can go to the extent of relaxing the application of law to the parties or exempting the parties altogether from the rigours of the law, in view of the particular facts and circumstances of the case.
In I. C. Golak Nath and Others v. State of Punjab and Another AIR 1967 SC 1643, K. Subba Rao, CJ., while invoking the doctrine of prospective overruling, held that the power under Article 142(1) of the Constitution of India is wide and elastic, and enables Supreme Court to formulate legal doctrines to meet the ends of justice, and the only limitation thereon is reason, restraint and injustice. Restraint and deference are facets of the Rule of Law, and when it comes to the separation of the role and functions of the legislature, the executive and the judiciary, the exercise of power by Supreme Court to do `complete justice’, being for a `cause or matter’, does not interfere with and encroach on the legislature’s power and function to legislate.
Clearly, when Supreme Court exercises jurisdiction conferred by Article 142(1) of the Constitution of India to do `complete justice’ in a `cause or matter’, it acts within the four corners of the Constitution of India. The power specifically bestowed by the Constitution of India on the apex court of the country is with a purpose, and should be considered as integral to the decision in a `cause or matter’. To do `complete justice’ is the utmost consideration and guiding spirit of Article 142(1) of the Constitution of India.
In Union Carbide Corporation and Others v. Union of India and Others (1991) 4 SCC 584, Supreme Court laid specific emphasis on the expression `cause or matter’ to observe that `cause’ means any action or criminal proceedings, and `matter’ means any proceedings in the court and not in a `cause’. The words `cause or matter’, when used together, cover almost every kind of proceedings in court, whether civil or criminal, interlocutory or final, before or after judgment. Having held so, Supreme Court observed thus:
“83. It is necessary to set at rest certain misconceptions in the arguments touching the scope of the powers of Supreme Court under Article 142(1) of the Constitution. These issues are matters of serious public importance. 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 apex Court under Article 142(1) is unsound and erroneous. In both Garg as well as Antulay cases the point was one of violation of constitutional provisions and constitutional rights. The observations as to the effect of inconsistency with statutory provisions were really unnecessary in those cases as the decisions in the ultimate analysis turned on the breach of constitutional rights. We agree with Shri Nariman that the power of the Court under Article 142 insofar as quashing of criminal proceedings are concerned is not exhausted by Section 320 or 321 or 482 CrPC or all of them put together.
The power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142. Such prohibitions or limitations in the statutes might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the court on which conferment of powers – limited in some appropriate way – is contemplated. The limitations may not necessarily reflect or be based on any fundamental considerations of public policy.
Sri Sorabjee, learned Attorney General, referring to Garg case, said that limitation on the powers under Article 142 arising from “inconsistency with express statutory provisions of substantive law” must really mean and be understood as some express prohibition contained in any substantive statutory law. He suggested that if the expression `prohibition’ is read in place of `provision’ that would perhaps convey the appropriate idea. 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.”
Whether this ratio is in conflict with the earlier decisions[3] of Supreme Court, including Prem Chand Garg and Another v. The Excise Commissioner, U.P. and Others AIR 1963 SC 996, wherein five judges of the Constitution Bench had held that this power under Article 142(1) of the Constitution of India cannot be employed to make an order plainly inconsistent with the express statutory provision or substantive law, much less inconsistent with any Constitutional provisions, was examined by another five judges’ bench of Supreme Court in Supreme Court Bar Association v. Union of India and Another (1998) 4 SCC 409, to observe that there was no conflict of ratios as elucidated in Union Carbide Corporation (supra) and other cases. It is one thing to state that prohibitions or limitations cannot come in the way of the exercise of jurisdiction under Article 142(1) of the Constitution of India to do `complete justice’ between the parties in the pending `cause or matter’ arising out of that statute, but quite a different thing to say that, while exercising jurisdiction under Article 142(1) of the Constitution of India, Supreme Court can altogether ignore the substantive provisions of the statute dealing with the subject and pass orders concerning an issue which can be settled only through a mechanism prescribed in the statute.
These observations were in the context of the powers conferred on the State Bar Councils under the Advocates Act, 1961, which, at the first instance, is empowered to decide whether an advocate is guilty of professional misconduct depending on the gravity and nature of his contumacious conduct. Supreme Court, in Supreme Court Bar Association (supra), has highlighted that the jurisdiction of the Supreme Court in contempt, and the jurisdiction of the State Bar Councils under the Advocates Act, 1961 are separate and distinct, and are exercisable by following separate and distinct procedures. The power to punish for contempt of court vests exclusively with the courts, whereas the power to punish an advocate for professional misconduct has been vested with the concerned State Bar Council and the Bar Council of India. In this context, we would like to quote the following passages from Supreme Court Bar Association (supra):
“47. The plenary powers of Supreme Court under Article 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 the 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. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties.
This plenary jurisdiction is, thus, the residual source of power which Supreme Court may draw upon 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 administering justice according to law. There is no doubt that it is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Court to prevent “clogging or obstruction of the stream of justice”. It, however, needs to be remembered that the powers conferred on 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 cause pending before it. This power cannot be used to “supplant” substantive law applicable to the case or cause under consideration of the Court.
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. Punishing a contemner advocate, while dealing with a contempt of court case by suspending his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the contemner is also an advocate, is, therefore, not permissible in exercise of the jurisdiction under Article 142. The construction of Article 142 must be functionally informed by the salutary purposes of the article, viz., to do complete justice between the parties. It cannot be otherwise. As already noticed in a case of contempt of court, the contemner and the court cannot be said to be litigating parties.
48. The Supreme Court in exercise of its jurisdiction under Article 142 has the power to make such order as is necessary for doing complete justice “between the parties in any cause or matter pending before it”. The very nature of the power must lead the Court to set limits for itself within which to exercise those powers and ordinarily it cannot disregard a statutory provision governing a subject, except perhaps to balance the equities between the conflicting claims of the litigating parties by “ironing out the creases” in a cause or matter before it.
Indeed, Supreme Court is not a court of restricted jurisdiction of only dispute-settling. It is well recognised and established that Supreme Court has always been a law-maker and its role travels beyond merely dispute-settling. It is a “problem-solver in the nebulous areas” but the substantive statutory provisions dealing with the subject-matter of a given case cannot be altogether ignored by Supreme Court, while making an order under Article 142. 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.”
Reference
Shilpa Shailash v. Varun Srinivasan (2023)
[1] C.K. Allen, Law in the Making (Clarendon Press, Oxford, 1927)
[2] Ninad Laud, Rationalising “Complete Justice” under Article 142, (2021) 1 SCC J-30
[3] A.R. Antulay v. R.S. Nayak and Another, (1988) 2 SCC 602; Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and Others, (1991) 4 SCC 406; and Mohammed Anis v. Union of India and Others, 1994 Suppl. (1) SCC 145. In Mohammed Anis , Supreme Court, while elucidating and unfolding the aspect of public policy and when it would operate to limit the power of the Supreme Court, observes that given the nature of power conferred by the Constitution of India on Supreme Court under Article 142 of the Constitution of India, which is of a different quality and level, prohibitions or limitations on provisions contained in ordinary laws cannot ipso facto act as prohibitions or limitations on the Constitutional power under Article 142 of the Constitution of India. The decision observes that mere reference to a larger bench does not prohibit Supreme Court in a given case from its exercise of powers conferred under Article 142 of the Constitution of India.