Context: The Supreme Court, while using its extraordinary power under Article 142, ordered the appointment of a citizen as a postal assistant on a probationary basis in order to ensure complete justice for someone who had fought for it for nearly three decades.
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.
(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.
In simple terms, Article 142 empowers the Supreme Court (SC) to issue such orders or decrees as needed to achieve complete justice. This is a special and exclusive power granted to the SC by the constitution, which even the high courts do not possess.
Need of Article 142
The Constitution’s framers believed this provision was crucial for those suffering due to judicial system delays.
To Fill the Legislative vacuum:
- When there’s a legal void for certain offenses, as seen in the Bhanwari Devi case in 2002, where there was no law addressing workplace sexual harassment, the SC introduced the Vishaka guidelines to ensure justice.
To Correct the Executive non-compliance:
- The executive’s non-compliance in Bihar during trials resulted in a high number of undertrials, leading to the SC’s intervention in the 1979 Hossainara Khatoon Case, the first Public Interest Litigation (PIL) in India.
About Supreme Court’s Power Under Article 142
- These are SC’s plenary powers for ensuring complete justice are inherent and complement its other constitutional and statutory powers.
- These powers are of wide amplitude and are supplementary in nature.
- No independent proceeding or procedure is required before the court seeking the application of such powers.
- The application of such powers depends upon the discretion of the apex court.
- The application of these powers cannot be done while ignoring or overriding the existing statutory or constitutional provisions.
- These constitutional powers cannot, in any way, be controlled by any statutory provisions.
Article 142: Source of Judicial Legislation
Judicial legislation is the process by which judges create or modify laws. This can be done through the interpretation of law, or the issuance of judicial decrees.
Article 142 of the Indian Constitution gives the SC the power to issue any order or decree that it deems necessary to do complete justice, even if it is not specifically mentioned in the law.
- The SC issued directions to ensure green belts and open spaces, emphasising the importance of ecological balance in M C Mehta case of 1996.
- Prohibited stone-crushing activities near residential complexes to safeguard public health in M C Mehta case of 1992.
- Earmarked a portion of reserved forests for Adivasis to ensure their habitat and means of livelihood, recognising the importance of protecting indigenous communities in the Banwasi Seva Ashram case of 1993.
- Compelled the municipal authorities of the Delhi Municipal Corporation to perform their statutory obligations for protecting the health of the community in B. L. Wadhera case of 1996.
- Issued directions to regulate the level of air pollution around the Taj Mahal, recognising the need to protect cultural heritage sites in M. C. Mehta case of 1997.
Legislative Void Filling and Criminal Justice Reforms:
- Filled legislative gaps in various areas such as inter-country adoption, sexual harassment at workplaces, ensuring the independence and autonomy of the Central Bureau of Investigation (CBI) in Vineet Narain case of 1998, arrest procedures, treatment of undertrials, and advance directives.
- Addressed issues of sexual harassment at workplaces, thereby enhancing the protection of women’s rights in the workplace. (Vishaka judgement)
Public Interest Litigation:
- Emergence of PIL allowed the judiciary to play a pivotal role in safeguarding public interest, environmental conservation, human rights, and administrative accountability, often resulting in the government giving direction, forming guidelines etc.
Appointment and encroachment in executive domain:
- Provided a procedure of the appointment of Election Commissioner of India and held that ECI shall be appointed by a committee in Anoop Baranwal case of 2023.
Issue with Judicial Legislation
- Lack of Expertise: The Court is composed of judges who are experts in law, but they may not have the same expertise in policy or other areas that are relevant to law-making.
- Lack of Legitimacy: Laws made by the Court are not subject to the same scrutiny and debate as laws passed by Parliament. This raises concerns about the legitimacy of judicial legislation.
- Uncertainty: When the Court makes new laws or modifies existing ones, it can be difficult for people to know what the law is leading to uncertainty and confusion among citizens.
- Hurts the doctrine of separation of power: Encroachment in the areas of legislative and executive domains create imbalance in the power of three organs of government and impact doctrine of separation of power.
- Lack of accountability: The Constitution under collective responsibility makes the executive accountable to people’s mandate. Courts while legislating bypass such responsibility.
- In certain cases SC gives direction, change or modify the application of law without clarifying whether it is under article 142 or not.
- Subjective application in different cases by the court has created ambiguity, e.g., in NALSA court applied the article but in Sama sex marriage case it refused to apply it.
Judicial Restraints provided by the Court
- In Prem Chand Garg Court, it was established that an order to ensure complete justice must align with both constitutional rights and relevant statutory laws.
- In certain cases, SC held that it cannot be used to take away any fundamental rights and cannot supersede Article 32.
- The possibility of a conflict between powers under article 142 and other provisions of the constitution necessitate application of the rule of harmonious construction.
- In Justice K.S.Puttaswamy(Retd) vs Union Of India Court used Article 142 to expand the scope of the right to life and personal liberty to include the right to privacy.
- In Vishaka and Others v. State of Rajasthan, Court used Article 142 to lay down guidelines for the prevention of sexual harassment at the workplace.
- The primary purpose of Article 142 is to enable judges to alleviate the strict application of the law in situations where doing so is essential for the administration of justice.
- In essence this power must always operate within the bounds of constitutional and statutory provisions. Going beyond these limits may lead to injustices rather than the delivery of justice itself.
- The exercise of this power places a significant responsibility on the Supreme Court to use it with great care, keeping in mind democratic system and upholding the principles of justice, and constitutional values.
Article 142 should be invoked judiciously and with restraint. It is not a universal remedy for all legal issues. Supreme Court judges must neither become “good men not obeying the law too well,” which means they can deviate from strict legal procedures when necessary for justice, nor should they turn into “knights errant roaming at will in pursuit of their own ideal of beauty or goodness,” which would be considered an abuse of judicial discretion.