Complete & final Justice by Supreme Court of India under Article 142

of Constitution of India

Article 142 of Constitution of India empowers the Hon’ble Supreme Court of

India to pass any decree or order necessary for doing “complete justice” in
any matter pending before it. That on perusal of judgment passed by
Supreme Court invoking Article 142(1) reveals that this power has been
employed by the Supreme Court for two purposes namely (1) to give a go-
by to the procedural requirement (2) to rectify substantive error by bringing
finality to a cause or matter by invoking Article 142 at the time of passing a
decree or making an order. It is to be noted that Article 142(1) does not confer
a fresh source of power to the Supreme Court for creating new law nor does
it create an independent basis of jurisdiction but it act supplementary to
Articles 32 and 136 of the Constitution of India. Basically power enshrined
under Article 142 of Constitution of India is inherent power of Apex Court,
therefore it can be safely concluded that power under Article 142(1) is a
repository of unenumerated power which has been left ‘undefined and
uncatalogued’ so that ‘it remains elastic enough to be moulded to suit in the
given situation.

In the past, Supreme Court has interpreted the power enshrined under Article
142 of Constitution of India in restricted or limited sense. In Prem Chand
Garg v. Excise Commissoner, U.P held that "Though the powers conferred
on this Court under Article 142(1) are very wide, and the same can be
exercised for doing complete justice in any case, this court cannot even
under Article 142(1) make an order plainly inconsistent with the express
statutory provisions of substantive law, much less, inconsistent with any
Constitutional provision". This view was endorsed by a nine-judge Bench in
Naresh Shridhar Mirajkar v. State of Maharashtra and was reiterated by
a seven-Judge Bench in A.R. Antulay v. R.S. Nayak.

However, in recent past, Supreme Court has in real sense has expanded
scope of the power and the source of this expanded power is Art. 142 of the
Constitution of India only exercised powers as defined under Indian
constitution but for doing justice. In an eminent decision of a three-judge
Bench decision in Delhi Judicial Service Association v. State of Gujarat
the Supreme Court extolled its power to new heights by declaring Article 142
as a part of basic structure of the Constitution. Supreme Court held that:
“This Court’s power under Article 142(1) to do ’complete justice’ is entirely of
different level and of a different quality. Any prohibition or restriction
contained in ordinary laws cannot act as a limitation on 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
take into consideration the statutory provisions regulating the matter in
dispute.”

The Supreme Court in this case rectified the error of In Re, Vinay Chandra
Mishra by holding that the suspension of an advocate can only be done by
the Bar Council of India under the Advocates Act and the Supreme Court
cannot usurp this statutory power to suspend an advocate by invoking Article
142. That Hon’ble Supreme Court held that “It, however, needs to be
remembered that the powers conferred to 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 case pending
before it...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.”

The brief of cases to be discussed wherein in special circumstances the

Hon’ble Supreme Court has exercise its jurisdiction under Article 142 of
Constitution of India for doing complete justice to the parties. A two-judge
bench of the apex court in Neeti Malviya v. Rakesh Malviya has referred
this question to a three-judge bench, that whether the period prescribed in
Section 13B(2) of the Act can be waived or reduced by the Supreme Court
in exercise of its jurisdiction under Article 142 of the Constitution. In fact, the
Supreme Court has previously invoked Article 142(1) to give a go-by to the
procedure in Section 13B(2) of the Act in both situations of: First, when the
Court grants a decree of divorce by mutual consent or directs the subordinate
Court for the same, by waiving the period of interregnum as mentioned in S.
13B(2) of the Act.

In Supreme Court Bar Assn. case was referred to in M.S. Ahlawat v. State
of Haryana wherein it was held that the order passed by the Supreme Court
by issuing a show-cause notice and conviction summarily under Section 193
of the Indian Penal Code for making false statement, was one without
jurisdiction and such an order could not be passed relying on Article 142.

In A.B. Bhaskara Rao v. CBI, wherein Supreme Court held that the powers
under Article 142 of the Constitution cannot be exercised by this Court in
contravention of any statutory provisions.

That Supreme Court Court had in the famous Vishaka case 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. The Supreme Court has ordered
the dissolution of a marriage of an estranged couple, living separately for 22
years and failing to reconcile their differences. The court termed the marriage
“unworkable, emotionally dead, beyond salvage and broken down
irretrievably”. A bench of Justices Sanjay Kishan Kaul and M.R. Shah said:
“We are of the opinion that while protecting the interest of the respondent-
wife to compensate her by way of a lump sum permanent alimony, this is a
fit case to exercise the powers under Article 142 of the Constitution of India
and to dissolve the marriage between the parties.”

In Sandeep Subhash Parate v. State of Maharashtra & Ors.,the Supreme

Court was dealing with a matter wherein the appellant had completed his
Engineering degree after obtaining admission on the basis of a false caste
certificate. Though the court was of the opinion that such practices should
not be allowed, however, it invoked its power under Article 142 to do
complete justice given the fact that the student had already completed his
education and his time and efforts would go waste if he would now be denied
a degree. Therefore, the court in order to do complete justice directed the
student to pay a cost and in return, the college was to issue him a degree,
despite cancelling the certificate issued to him. Whereas in Famous Vyapam
case namely [Nidhi Kaim v. State of Madhya Pradesh, 2017 SCC OnLine
SC 123, Supreme Court refused to apply Article 142 of Constitution of India
and did not give the benefit to MBBS students on the ground that actions of
the students constitute acts of deceit, invading into a righteous social order.

The Constitution Bench of the Supreme Court in Secretary, State of

Karnataka & Ors. v. Umadevi (3)& Ors. allowed regularization of irregularly
appointed persons in exercise of its power under Article 142 simply because
they had worked on the post/department for more than 10 years without any
challenge. However, the court clarified it to be a one time measure and not
a rule.

In short, great plenary power is discretionary and extra-ordinary and can’t be

be exercised in a mechanical manner for which there must be strong and
cogent reasons for exercising powers under Article 142 for complete justice
and to fill in lacuna or vacuum in law and not as part of regular exercise of
jurisdiction of the court.