Recently a five-judge Bench directly granted a divorce under Article 142 of the constitution. A constitutional bench comprised Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari, JJ. in Amardeep Singh v. Harveen Kaur[1], and Amit Kumar v. Suman Beniwal[2], held that the supreme court has discretionary power to dissolve a marriage with mutual consent on the ground of irretrievable breakdown and without following the procedural requirement.

In adherence to the exercise of power under art. 142(1), the Supreme Court has formulated the “Doctrine of Irretrievable Breakdown of Marriage” to grant the decree of divorce where the same is not a recognized ground in Ss. 13 or 13B of the Hindu Marriage Act, 1955. A pertinent and important question that arises is whether the Judiciary is under the unfettered power of art. 142(1) encroached on the function of the Legislature by providing a precondition to doing away with the cobwebs of technicalities in the dissolution of marriage. Basically, in exercising power in the former case under Article 142 [3]of the Constitution, the supreme court negated, nullified, or ignored the express provision of the statutory for six months waiting period, and thereby contravened and counteracted the specific provision of section 13-B (2) [4]of the Hindu Marriage Act, 1955. It is both frightening and amusing to note that without following the procedure set forth by the statutes, the supreme court passed an order. The scope of this power is unbridled and needs to be limited. Even though several judgments are passed shaping the law, it still needs to be examined, or else through Supreme Court, there may be interference with public rights. There must be a constrictive theory of Article 142[5], especially the term ‘complete justice’.

Article 142:  A General View

The constitution of India envisages that the Supreme Court, exercising its jurisdiction, may pass such enforceable decree or order as is necessary for doing Complete Justice in any cause or matter pending before it. This article gives ultimate power to the supreme court of India to redress any matter of any sought it may deem fit. It is to be considered that the supreme court, with this ultimate power, can challenge the doctrine of separation of power. The nature and scope of power contemplated in Article 142 (1) [6]are understood and interpreted in a very imaginative way, and proper interpretation and scope are yet to be set forward. The phrase ‘Complete justice’ gave the Supreme Court immense power to exercise its power, and no limitation was set forward.

Considering the marginal note of Article 142, [7]it clearly says that the enforcement of decrees and orders of the supreme court and orders as to discovery, etc., which appears to be based on Section 210 [8]of the Government of India Act, 1935 that deals with the power of the Federal courts to make any order to secure the purpose of attendance of any person, the discovery or production of any documents, or the investigation or the punishment of any contempt of court and several other areas where the court have jurisdictional power. It majorly deals with procedural matters.

Case Laws Shaping the Law.

The scope of court power under Article 142(1) [9]has been scrutinized ad infinitum, most recently in the case of National Insurance Co. Ltd. v. Parvathneni[10] and the University of Kerela v. Council of Principals of Colleges[11], Kerela. One of the recent and significant cases dealing with Article 142 [12]was Prem Chand Garg v. Excise Commissioner, UP[13]. It was laid down that order inconsistent with fundamental rights will be struck down as no order can be passed which is inconsistent with any statutory provision or constitutional provision.

The prominent decision of a three-Judge Bench Decision in Delhi Judicial Service Association v. State of Gujrat [14]held that Article 142 [15]is part of the basic structure of the Constitution. K.N. Singh, J. held that:

“This Court’s power under Article 142(1) to do ‘complete justice’ is entirely of a different level and of a different quality. Any prohibition or restriction contained in ordinary laws cannot limit 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 consider the statutory provisions regulating the matter in dispute.”[16]

In another prominent case of Union Carbide Corporation v. U.O.I, [17]in continuation of the stance of established law, it was held by Ranganath Mishra, C.J. a circumscribing interpretation of power laid under article 142 [18]of the Indian constitution was held that:

“ Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under article 142 …Perhaps, the proper way of expressing the idea is that in the exercise of the powers under article 142 and in assessing the needs of ‘complete justice’…take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of the power and discretion accordingly.”[19]

In the former Judgement, it was held that no prohibition or limitations contained in ordinary laws could go on to act as such prohibition or limitation on the power of the court under Article 142[20].

In the case of Supreme Court Bar Association v. Union of India[21], it was held that an advocate could only be suspended by the bar council of India under the Advocate Acts, and the court Cannot exceed its authority in this regard by invoking Article 142.[22]

“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.”[23]

Decisions by the courts led us to understand the major function of Article 142 [24]and what purpose it seeks. The very first function of the article is to fill the gap between laws, statutes, and different provisions, which might be ambiguous or lack substantive ground. It is basically to bring finality to the law by passing a decree or making an order. The second function which this article seeks to resolve is the procedural technicalities set forth by the statutes or the law; adherence to the law may lead to adverse and unprecedented results or outcomes. Observing the case laws, it emerges that the power has been resorted to for procedural and substantive purposes, and no power is conferred to make new laws.

Interpretation of Article 142 and its Evolution

The development of the law has ultimately led to different interpretations and directions, as supposedly done by evolution, and it changed the interpretation of the law. Supposedly the law which the constitution drafter took a different turn and resulted in quite a different literal interpretation. In its present form, it does not find a place in the draft constitution prepared by the constitutional advisor to the constituent Assembly, Sir B.N. Rau.

The stream of interpretation evolved and held that Article 142 (1) [25]is entirely of different quality and that any prohibition or restriction contained in ordinary laws cannot limit the constitutional power of the court. Considering the power as corrective and doing complete justice means giving preference to equity over the law. These powers are meant to be exercised when their exercise may come directly in conflict with what has been expressly provided. The power of the supreme court, unlike that of the legislature, is highly contextual, and its context is in administering justice according to the law in force. It means that power cannot be used to build a new edifice where none existed by ignoring express statutory provisions dealing with a subject and achieving something indirectly that cannot be achieved directly. In doing so, the supreme court enjoys plenary power, which is absolute, complete, and unqualified.

In a majority of cases where Article 142 [26]has been used, it has always been used to make ancillary orders to give effect to the decision rendered in a matter pending before it, thus following a conservative approach. Under this approach, orders like transfer cases, assigning counsel in pursuance of legal aid or justifying the doctrine of prospective ruling as adhered to in Golak Nath v. State of Punjab[27]. Later it evolved to the liberal approach, where several cases truly shaped the law and provided its interpretation, just like in Mohd. Anis v. Union of India[28], where the Supreme Court held that the power under Article 142 is very wide and cannot be limited even by a statutory provision. Several more judgments shaped the law resulting in the evolution of the law.

 Theories Dominating the Interpretation of Article 142 of the Indian Constitution 

 Two jurisprudential theories exist as per the theorist, and the school of thought is deontology and consequentialism. Both have some drawbacks and contention, which are efficient in their ways. Talking and considering first, Deontology is a school of thought that primarily seeks to evaluate whether something is morally wrong or right. Thus, evaluating the threshold of the said principle and interpreting it on the same grounds, leads us to ponder on whether the said article 142 [29] has some value in the eyes of the law since other theorists are uncomfortable with the deontological moral theories because there is excellent indeterminacy over what contention these theories are considered as methodology unspecified and grossly inadequate. At the same time, they were considered unrealistic and suffered from being too demanding or inflexible.

Contrastingly talking about Consequentialism, is a school of thought that highlights the Correlation between an Act’s rightness on the basis of its consequences. An act can be considered morally good or legitimate only after watching its consequences, whether good or not, as per the outcome predicted beforehand. Basically, it derives its foundation from classic utilitarianism. Simultaneously it has been criticized for separating the means from the ends. As article 142 [30]of the Indian constitution lays down that the supreme court may pass such enforceable decree or order as it deems necessary for the purpose of carrying out ‘complete justice’ in any matter as it may deem fit.

 Harmonious Construction & Doctrine of Separation of Power

Various case laws which are used as a precedent and have precedence value restricted the supreme court from exercising its power and holding the power to that respective entity. It was held that the power conferred to the court by Article 142 [31]is a curative right and curative in nature, which means it cannot be construed as powers that authorize the court to ignore the litigant’s substantive rights while dealing with a pending case. The court must set the limit within which it must be authorized to exercise its powers. Ordinarily, it cannot disregard a statutory provision governing the subject, except perhaps to balance the equities between the conflicting claims of the litigating parties by ironing out the creases.

Article 142 [32]does not confer a new source of power to the Supreme Court; rather, it creates an independent basis of jurisdiction. The primary function of this article is to effectuate Articles 32 [33]and 136 [34]of the constitution of India. This article is placed with the very intention that the relief must be sought first under these articles (32[35], 129[36], 131[37], 132[38], 133[39], 136[40], 138[41]), and after exhaustion of the above-mentioned articles. Only after exhaustion of the right under these articles, the court should entertain the appeal under article 142[42] of the Indian. It is interesting to note that, the unfettered power of the supreme court is not encroaching on the feature of separation of powers; rather, it incorporates check and balance by subjecting its manner of enforceability to the laws made by the parliament since laws cannot be made by the supreme court itself.

Under Article 142, the power conferred by the Supreme Court comes into action when it perceives the presence of a legislative gap and therefore evokes the onerous obligation to compensate the void under its discretion until the legislature or executive enacts upon it.

Under this article, the Supreme Court of India has increasingly resorted to it for addressing the legislative vacuum or inadequacy in matters that demand judicial activism for culminating “complete justice.” To substantiate it further, jurisdiction under Article 142[43] has been invoked increasingly in the late eighties and nineties compared to when it was reported from its inception to the early eighties.

Viewing it from a different angle, it was placed to strengthen the doctrine of separation of power. It simultaneously keeps a check on the different organs of the government. It prevents any abuse of power granted by the Constitution. Ultimately it makes Judiciary independent of any other organ of the government. If there is no such article, the dependence would violate the principles of independence of the judiciary and separation of powers, both of which were held to constitute the basic structure of the Constitution. Although this was the initial thought while drafting this particular, with the evolution of law, it was interpreted in a different way as laid down by the Judges.

Conclusion

Article 142 [44]of the Constitution is a law that gives Supreme Court unfettered power over any subject matter it may deem fit to do complete justice. Although the power conferred to the court is not unbridled because it cannot form law and just have the authority to fill in the gaps in the laws or statutes to make it clearer where there is either any substantive, or procedural issue with that particular law. Through the passage of time, the law has been interpreted in a different direction which was not originally considered by the drafters. Powers exercised under Article 142(1) [45]are inconsistent, contradictory, and inconvenient for a nation like ours, but such power of the supreme court provides scope for that area of law where there exists any fallacy that needs to be considered, where the law needs correction but all the remedy has been exhausted, and to do away with the cumbersome access to justice. The Supreme Court has no limits under this law but must contemplate institutional integrity and judicial process. Reasonably provision with such immense power should not be there in a common law system like ours, but it is considered to be of great importance by the drafters because there always exist some slacks in the law which are to be corrected and cannot be done without this provision. This article should be harmoniously viewed and contemplated with utter rumination.

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[1] Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746.

[2] Amit Kumar v. Suman Beniwal, 2021 SCC OnLine SC 1270.

[3] Constitution of India 1950, art.142.

[4] Hindu Marriage Act 1955, §13-B (2).

[5] Constitution of India 1950, art.142.

[6] Constitution of India 1950, art.142.

[7] Constitution of India 1950, art.142.

[8] Government of India Act, 1935, §210.

[9] Constitution of India 1950, art.142.

[10] National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785.

[11] University of Kerala (3) v. Council of Principals of Colleges, Kerala, (2009) 16 SCC 441.

[12] Constitution of India 1950, art.142.

[13] Prem Chand Garg v. Excise Commissioner, 1963 Supp (1) SCR 885.

[14] Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406.

[15] Constitution of India 1950, art.142.

[16] Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406.

[17] Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584.

[18] Constitution of India 1950, art.142.

[19] Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584.

[20] Constitution of India 1950, art.142.

[21] Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409.

[22] Constitution of India 1950, art.142.

[23] Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409.

[24] Constitution of India 1950, art.142.

[25] Constitution of India 1950, art.142.

[26] Constitution of India 1950, art.142.

[27] Golak Nath v. State of Punjab, (1967) 2 SCR 762.

[28] Mohd. Anis v. Union of India,1994 Supp (1) SCC 145.

[29] Constitution of India 1950, art.142.

[30] Constitution of India 1950, art.142.

[31] Constitution of India 1950, art.142.

[32] Constitution of India 1950, art.142.

[33] Constitution of India 1950, art.32.

[34] Constitution of India 1950, art.136.

[35] Constitution of India 1950, art.32.

[36] Constitution of India 1950, art.129.

[37] Constitution of India 1950, art.131.

[38] Constitution of India 1950, art.132.

[39] Constitution of India 1950, art.133.

[40] Constitution of India 1950, art.136.

[41] Constitution of India 1950, art.138.

[42] Constitution of India 1950, art.142.

[43] Constitution of India 1950, art.142.

[44] Constitution of India 1950, art.142.

[45] Constitution of India 1950, art.142(1).

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Author: AKSHAT SINGH

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