SUPREME COURT/CONSTITUTIONAL LAW/JURISPRUDENCE

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Inherent powers of the Supreme Court under the Constitution
by Ajit Sharma*

Cite as: (2006) PL June 12

The Constitution confers wide powers upon the Supreme Court such as the power to grant special leave against orders or decrees from any court or tribunal in the country1 or to have exclusive jurisdiction to decide election disputes of the President or Vice-President2 Moreover, the law laid down by the Supreme Court is the law of the land binding on all the courts and tribunals in the country3 Such powers have been conferred upon the Supreme Court to ensure that the court does not suffer from any jurisdictional difficulties to do justice between the parties before it.

Article 142 is one such provision in our Constitution which empowers the Supreme Court to pass such "decree or order as may be necessary for doing complete justice between the parties". Thus Article 142 supplements the powers already conferred upon the Supreme Court under the Constitution to guarantee that justice is done and in doing so the Court is not restrained by lack of jurisdiction or authority of law.4 Over the years the Supreme Court to meet the ends of justice has frequently relied upon Article 142. However, exercise of exceptional powers conferred under Article 142 has of late met with some criticism with the courts today more frequently resorting to use of Article 142 than ever before. Critics thus demand that the Supreme Court should clearly state the extent and scope of its powers under Article 142 thereby defining its limits within which the Supreme Court may opt to exercise its power.5

Introduction

The Supreme Court has time and again resorted to Article 142 in a variety of cases and passed orders to do "complete justice". It is thus imperative for us to analyse the current understanding of Article 142 to be better equipped to answer whether it is time that the Court limits its powers under Article 142.

Article 142 is conceived to meet the situations which cannot be effectively and appropriately tackled by existing provisions of law. Thus it appears that where existing provisions of law can adequately deal with the issue at hand and do justice between the parties, the Supreme Court would not normally exercise its powers under Article 142:

"The phrase 'complete justice' engrafted in Article 142(1) is the word of width couched with elasticity to meet myriad situations created by human ingenuity or cause or result of operation of statute law or law declared under Articles 32, 136 and 141 of the Constitution and cannot be cribbed or cabined within any limitations or phraseology."6

Sahai, J. in S. Nagaraj case7 has observed that: "18. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way." This wide definition of "justice" ensures that the Court can exercise its powers under Article 142 to do "complete justice" in a range of cases each decided by the Court based on its facts and circumstances. Article 142 also lays down no limitations regarding causes or the circumstances in which the power is to be exercised. The exercise of such power is left completely to the discretion of the highest court.8

Moreover, such power of passing any order or decree in the interest of justice has been conferred upon the Supreme Court only vide Article 142 and in the absence of analogous provisions, the High Courts or the tribunals do not have similar powers.9 Therefore the Supreme Court, being the sole repository of such wide-ranging power, can pass a range of orders under this article. It has been held that the

wide powers given to the Court can be used for adding parties to the proceedings pending before it, or in admitting additional evidence, or in remanding the case, or in allowing a new point to be raised for the first time.10

Furthermore, under Article 142, the Supreme Court can grant relief even to a party which is not before the Court and has omitted to challenge the impugned order before the Supreme Court.11 The Court has also exercised its power under Article 142 to order a CBI inquiry without the State Government's consent where such consent was required by the statute12 and did not remove clerks even though their appointments were held invalid, as they had put in ten years of service and thus deserved "justice by mercy".13

Scope of Power under Article 142

The scope and ambit of the Supreme Court's power under Article 142 has often been subject to judicial scrutiny. The question that the Court has often faced is whether an order made under Article 142, being a constitutional provision, could override express statutory provisions? The answer to this question is important, as this will decide whether the Supreme Court in exercise of its powers can ignore express statutory provisions and pass an order to the contrary in order to do complete justice?

The Supreme Court perhaps first answered this question in Prem Chand v. Excise Commr., U.P.14 wherein the Court held that:

"An order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws."15

Thus the Supreme Court limited its powers under Article 142 as no such order could be passed by the Court which violates an express statutory provision. The Court then in the famous A.R. Antulay case16 upheld the earlier pronouncement when it held that

"however wide and plenary the language of the article, the directions given by the court should not be inconsistent with, repugnant to or in violation of the specific provisions of any statute" (SCC p. 730, para 206).

The Supreme Court again got an opportunity to review the interpretation accorded to Article 142 in Delhi Judicial Service Assn. case17 wherein the Court reversing its earlier judgments held that:

No enactment made by the legislature can limit or restrict the constitutional power of the Supreme Court under Article 142, though the Court must take into consideration the statutory provisions regulating the matter in dispute.

This view was reaffirmed by the Court in Union Carbide case18 wherein the Court held that:

"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 Supreme Court under Article 142(1) is unsound and erroneous. ... 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 Supreme 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."

Thus the view taken by the Supreme Court was that although statutory provisions are not a limitation for exercise of its constitutional powers under Article 142, the Court while exercising such power to do complete justice must consider them.19

The question regarding the width and amplitude of the Court's power under Article 142 came up again for consideration in Supreme Court Bar Assn. case20 wherein the Court laid down the law currently followed when it held that:

"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." (emphasis supplied)

The Court thus described its power as

a separate and independent basis of jurisdiction and thus a residual power, which this Court may draw upon as necessary whenever it is just and equitable to do so.21

Thus the Court was of the view that the power under Article 142 should not be so exercised as to violate an express statutory provision dealing exclusively with the subject in spite of holding that statutory provisions cannot be a limitation on exercise of Article 142.22

This view was further reaffirmed by the Court in M.C. Mehta v. Kamal Nath23 wherein the Court held that (SCC p. 223, para 19)

Article 142 cannot be pressed into service in a situation where action under that article would amount to contravention of specific provisions of the Act.

The current position in law can thus aptly be summarised as that being a constitutional provision, Article 142 can override any statutory provision. But, in practice, the Court does not use its powers under Article 142 in direct confrontation with any express statutory provisions applicable to the case at hand. This is a self-imposed restriction but the Court can bypass the same if equitable considerations demand.

Therefore the accepted view today seems to be that even though the courts have opted to leave their powers under Article 142 undefined and uncatalogued, they have over a period of time evolved certain limitations on exercise of their power. Thus the Supreme Court would not be inclined to exercise its power under Article 142 if a specific statutory provision exists to deal with the issue involved until and unless the same is absolutely necessary in the interests of complete justice. Being the highest court of the land from which no appeal lies the constitution-makers have gone that extra mile and given wide powers to the Supreme Court under Article 142 so as to be sure that there's nothing restraining the Supreme Court from meting out justice.

Moreover, the current position of law (that the Supreme Court will not infringe statutory provisions until necessary) seems to be better suited to achieve the goals our constitution-makers expected through Article 142 than the available alternatives. Now had the position of law as declared been that Supreme Court cannot pass any order under Article 142 that infringes an express statutory provision dealing with the subject then the Supreme Court would have had needlessly imposed a significant restriction on its inherent powers to do "complete justice" where required. If the Court finds that an order, though violating a provision of law, is essential to do "complete justice", the Court then should not be unnecessarily constrained. Furthermore, had the position of law as declared been that the Supreme Court can pass any order irrespective of any existing statutory provision, then such wide-ranging power would have given the court ample opportunity to excessively interfere with statutory mechanisms. Existence of statutes expressly dealing with the subject-matter would perhaps have had no impact on the outcome of the case or the nature of the order passed under Article 142 then and this would in turn have encouraged litigants to pray for an order under Article 142 avoiding the mandatory statutory process. Thus the current position of law lies between the two abovementioned propositions and maintains a balance between the Court's power to do complete justice on one hand as well giving due regard to existing statutes. The Court must endeavour to give primacy to statutory provisions and only in few cases where interests of complete justice genuinely demand, the Court may pass an order confronting statutory provisions.

Exercise of Article 142 in the absence of a legislation

The Supreme Court has the power to issue directions under Article 142 where none already exist and such directions shall be binding till such time as new rules are enacted by the legislature on the subject. Thus it has been held that

ample powers are conferred on the Court under Articles 32, 141, 142 and 144 to issue necessary directions to fill vacuum till either legislature steps in to cover the gap or the executive discharges its role.24 (SCC para 49)

The Court had in the famous Vishaka case25 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. Thus where there is inaction by the executive, the judiciary must step in, in exercise of its constitutional obligations to provide a solution till such time as the legislature acts to perform its role by enacting proper legislation to cover the field.

Conclusion

Article 142 was introduced in our Constitution to serve the interests of justice. The Supreme Court is the highest court from which no appeal lies. Its decisions are final and binding. Thus this article was included in our Constitution with a view to ensure that the interests of justice are paramount and in doing so the Supreme Court can disregard any provision which prevents the court from performing its constitutional obligations.

The scope of Article 142 has often come up for discussion before the Supreme Court and has received varied interpretations over the years. Beginning with Prem Chand case14 wherein the Supreme Court restrained its powers and held that it cannot pass any order under Article 142 which violates an express statutory provision to, V.C. Mishra, In re case19, wherein the Court held that Article 142 being a constitutional power cannot be limited by any statutory provision to finally the position laid down in Supreme Court Bar Association case20 wherein the Court sort of harmonised the two extremes and held that even though statutory provisions cannot act as a limitation on the Court's constitutional power under Article 142, the powers are not meant to be exercised where such provisions exist. The move is thus towards restricting as opposed to expanding the inherent power vested with the Supreme Court under Article 142.26

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* Student, Nalsar University of Law. The author may be contacted at ajit@jmsharma.com. The author acknowledges with thanks the assistance and support offered by Ms Sridevi Venkataswamy in completing this article. Return to Text

1. Article 136. Return to Text
2. Article 71. Return to Text
3. Article 141. Return to Text
4. The Court while comparing Article 136 with Article 142 has held in Zahira Habibullah Sheikh v. State of Gujarat, (2004) 5 SCC 353 (SCC at p. 360, para 10) that: "Orders of the Supreme Court under Article 136 of the Constitution have been held to be unassailable and cannot be said to be void. Whereas, Article 142, though very wide is viewed to be limited to the short compass of the actual dispute before the Court and not to what might necessarily and reasonably be connected with or related to such matter." Return to Text
5. This demand becomes all the more pertinent in the light of Supreme Court's judgment in DDA v. Skipper Construction Co. (P) Ltd., (1996) 4 SCC 622 wherein the Court while considering the nature and ambit of its own powers under Article 142 observed that it was advisable to leave its power undefined and uncatalogued so that it remains elastic enough to be moulded to suit the situation (SCC p. 634, para 16). Return to Text
6. K. Ramaswamy, J. in Ashok Kumar Gupta v. State of U.P., (1997) 5 SCC 201, p. 250, para 60. Return to Text
7. S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595, p. 618, para 18. Return to Text
8. M.P. Jain: Indian Constitutional Law, (5th Edn. Vol. I) p. 306. Return to Text
9. Sanchalakshri v. Vijayakumar Raghuvirprasad Mehta, (1998) 8 SCC 245 (para 8). Also see C. M. Singh v. H.P. Krishi Vishva Vidyalaya, (1999) 9 SCC 40 (para 5). Return to Text
10. Gajendragadkar, J. in Prem Chand Garg v. Excise Commr., U.P., AIR 1963 SC 996, at p. 1003, para 13. Also see D.D. Basu: Shorter Constitution of India, (13th Edn. 2001) p. 685. Return to Text
11. DESU v. Basanti Devi, (1999) 8 SCC 229 (paras 15 and 16). Also see B.N. Nagarajan v. State of Mysore, AIR 1966 SC 1942 (para 29) where the Supreme Court extended the benefit of the judgment to those appellants who had not prosecuted their appeals. Return to Text
12. Mohd. Anis v. Union of India, 1994 Supp (1) SCC 145 (paras 6 and 7). Return to Text
13. H.C. Puttaswamy v. Hon'ble Chief Justice of Karnataka High Court, 1991 Supp (2) SCC 421 Return to Text
14. AIR 1963 SC 996 at p. 1002, para 12. Return to Text
15. However, the Court further went on to state that "in exercising these and similar other powers, this Court would not be bound by the relevant statutory provisions of procedure if it is satisfied that a departure from the said procedure is necessary to do complete justice between the parties" (ibid., at p. 1003, para 13). Return to Text
16. A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 Return to Text
17. Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406, SCC at p. 463, para 51. Return to Text
18. Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584, SCC at pp. 634-35, para 83. Return to Text
19. It has been held in Vinay Chandra Mishra, In re, (1995) 2 SCC 584, at p. 623, para 48 that "Article 142(1) being a constitutional power it cannot be limited or conditioned by any statutory provision". Return to Text
20. Supreme Court Bar Assn. v. Union of India, (1998) 4 SCC 409, SCC p. 432, para 48. Return to Text
21. Ibid., at SCC p. 431, para 47. Return to Text
22. The Court further went on to state that: "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." (1998) 4 SCC 409, p. 432, para 47 Return to Text
23. (2000) 6 SCC 213, 233. Herein the Court refused to impose fines under Article 142 as fines for the same were being imposed under the Air Act, 1981 and the Water Act, 1974. Return to Text
24. Vineet Narain v. Union of India, (1998) 1 SCC 226, para 51. Return to Text
25. Vishaka v. State of Rajasthan, (1997) 6 SCC 241 Return to Text
26. It is indeed laudable that the judiciary has acted responsibly by not (mis)using Article 142 to pass orders violating express statutory provisions. However, the judiciary must always keep this option with itself to pass such an order if interests of "complete justice" so demand. The court does rightly recognise that the article by itself imposes no restrictions or limitations on the exercise of its powers. Thus the cautious approach is laudable but this should not result in justice being denied merely because a statutory provision exists. Return to Text