Article 142 : ‘The Sweeping Power of the Supreme Court’ -Checks and Balance.

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INTRODUCTION

Thomas Hobbes famously wrote that, without civilization, human’s life is “solitary, poor, nasty, brutish, and short.” So mankind built communities and have consistently had a leader chosen for them, be it a tribal chief, patriarchal master, king or queen . Two and a half million years ago, humans initiated an experiment with autonomous government, choosing their own rulers. And it has had varying degrees of success. A perennial problem, however, has been the corrupting influence of power, especially absolute or unchecked power. Perhaps Lord Acton phrased it best: “Power tends to corrupt, and absolute power corrupts absolutely.” Lord Acton .The powers of the Court under Art. 142 are broadly interpreted so that the court can do complete justice in a case which is pending before it. Thus the article 142 requires a much deeper analysis.

Article 142 in Constitution of India

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.

Under article 141 of the Constitution, the law declared by the Supreme Court is the law of the land and is binding on all lower courts. Hence, by the utilization of the plenary powers under Article 142, the court can do anything in the name of complete justice. The power is distributed amongst three organs of the state namely Legislative , Executive and Judiciary . Legislative body is expected to legislate for securing the objectives and policy set out in the Constitution. Executives have to execute these laws and the policies. The prime responsibility of the Courts is to see that the legislatures and executives while discharging their respective duties are not encroaching upon the fundamental rights of the people. There has to be harmonious relationship between all these organs as envisioned by the constitution. However, in recent past, Supreme Court has not only exercised powers as defined under Indian constitution but for doing justice in real sense it has expanded the scope of the power and the source of this expanded power is Art. 142 of the Constitution of India. The Supreme Court is constitutionally empowered under this article to exercise the power in order to attain the goal of doing complete justice, which means the very element of separation of powers between the three organs of the state is not as such strictly followed and for a matter of fact the Honorable Supreme Court have extended its whist and fangs in the previews of legislations. eg; In Shilpa Shailesh vs Varun Sreenivasan on 1 May, 2023 Supreme Court have actually bypassed an expressed statutory provision -Section 13 in The Hindu Marriage Act, 1955, Using this power the apex court has issued several directions which are encroaching on the domain of the other two organs. This phenomenon has brought the issue of doctrine of Separation of Powers and Parliament Supremacy into question; this has also raised doubts as to the legitimacy of the Supreme Court actions. In this context,  the provision of Art. 142 and its plenary power is to be discussed.

The legal framework surrounding the exercise of power under Art 142 of the constitution

In the recent past the Supreme Court has expanded judicial power considerably. It is important to have a harmony between the three organs of government but it has become a matter of deep controversy recently. The confrontation between the three organs, especially judiciary on one hand and executive and legislatures on the other hand is now happening. Article 142 of the Indian constitution confers plenary powers on the Supreme Court to do complete justice. The very ‘power to do complete justice’ under this provision has given new dimension to the concept of judicial activism. In India, the Supreme Court is the highest constitutional court in the country and has always played an important role as the guardian of fundamental rights. It protects constitutional rights as court of original jurisdiction. It is final court of appeal in matters involving substantial questions of law involving interpretation of constitutional provisions.

Prem Chand v Excise Commissioner is the first authoritative interpretation of Art.142(1). In this case the Court noted that ‘‘the wide powers which are given to this Court for doing complete justice between the parties can be used by this Court for instance, in adding parties to the proceeding pending before it, or in admitting additional evidence, or in remanding the case, or in allowing a new point to be taken up for the first time’’. Clearly, the scope of power under Art.142(1), as the Court saw it, was limited to deviation from mere rules of procedure. The Court could, in other words, disregard procedures laid down in statutes to do complete justice between the parties. This view of the limited scope of the ‘‘power to do complete justice’’ was reiterated in A.R. Antulay v R.S. Nayak , when the Supreme Court observed 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 provision of any statue‘‘. This limited view, however, did not find favor with the judges subsequently. In Union Carbide Corp v Union of India,  reversing the substantive limitation, the Court held that ‘‘the  power under Art.142(1) is at an entirely different level and of a different quality. Prohibitions or limitations on provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Art.142. The law on the power to do complete justice as it now stands does permit the Court absolutely to ignore substantive statutory limitations. Borrowing from B.R. Ambedkar’s speeches, that if no limitations were imposed on authority, it could lead to tyranny and oppression. Most importantly the very use of article 142 has no such guide line  by the Apex court, which means the court can do any matter relating to this in the name of complete justice.

Jurisdictions of the Supreme Court

The Original Jurisdiction-Art. 131(1) empowers the Supreme Court with extraordinary original jurisdiction. It provides that the  Supreme Court shall have original jurisdiction, to the exclusion of any other court in following disputes; (i). between the Government of India and one or more States; or (ii).  Between the Government and any State or States on one side and one or more states on the other side; or (iii). Between two or more States.

Appellate Jurisdiction; In Constitutional matters, Under Article 132 “an appeal shall to the Supreme Court from any judgment, decree or order of a High Court in the territory of India, whether in civil, criminal or other proceedings, if the High Court certifies under article 134-A that the case involves a substantial question of law as to the interpretation of the constitution.  Appellate Jurisdiction: In civil matters- the appeal under Article 133 lies to the Supreme Court against to decisions of the High Court under the following conditions.  That the judgments, decree or final order appealed against must have been passed or made by the High Court in any civil proceeding.  That die High Court must give certificate that die case involves substantial question of law of general importance and that in the opinion of the High Court the said question needs to be decided by the Supreme Court.  Appellate Jurisdiction in Criminal matters Appeal in criminal proceedings lays before the Supreme Court in the following two ways . Without a certificate of High Court if the High Court has in appeal reversed an order of acquittal of an accused person and has sentenced him to death or has withdrawn for trial before itself any case from any Court subordinate to its authority and has in such trial convicted the accused and has sentenced him to death or to imprisonment for life or for a period of not less than 10 years. In other cases an appeal shall lie to the Supreme Court from any judgment  final order or sentence in a criminal proceeding if the High Court certifies under Article 134-A that the case is fit for appeal. Appeal by Special Leave -Article 136(1) confers discretion on the Supreme Court to grant special leave to appeal before itself from any judgments, decree, determination, sentence or order passed or made by any Court or tribunal in any cause or matter. Review Jurisdiction – Article 137 provides that “Subject to tire provisions of any law made by parliament or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounce or order made by it” Under this provision review is possible if there is discovery of new and important matter of evidence or there is any mistake or error apparent on the face of the record or if there is any other sufficient ground for doing so. Advisory Jurisdiction- Article 143 confers power on the President to consult the Supreme Court on matters of public importance.

Enforcement of decrees and orders of the Court- there are two parts of Article 142. 

Part 1 deals with power of the court to do complete justice, while part II of Art. 142 , confers on Supreme Court three different powers 

a) Power to secure attendance of persons 

b) Discovery and production of documents.

 c) Investigation and punishment of contempt of itself.

Article 142 provides. (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or 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 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 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 document, or the investigation or punishment of any contempt of courts.

Even though from the above discussed powers are been used by the Supreme Court in an due process the plenary powers under Article 142 is drastically used and there is no guide line as such hence the scope of utilizing 142 has to be limited which means there is a need for restrain of the usage of 142 in every cases and matters before the court and most importantly it can’t be used to overcome a expressed statutory provision.

PLENARY POWER OF ARTICLE 142 : Usage in MATRIMONIAL CASES with reference to Shilpa Shailesh vs Varun Sreenivasan case

The Constitution Bench was hearing a batch of petitions raising common questions of law, namely whether it could exercise its powers under Article 142 to dissolve a marriage, what are the broad parameters to be used on the exercising these powers and whether the power under Article 142 can be used to actually dissolve the marriage between two consenting parties in the name of irretrievable breakdown of marriage. The five-judge Bench comprised Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari,

The case of Shilpa Shailesh vs Varun Sreenivasan marks a significant space .The case originated from a deeply contested matrimonial dispute between Shilpa Shailesh and Varun Sreenivasan.The couple had been living separately for more than six years, with numerous attempts at reconciliation proving futile, the parties, Mrs. Shilpa and Mr. Varun, moved to the Hon’ble Supreme Court in order to obtain divorce by mutual consent under Section 13-B of Hindu Marriage Act, 1955, citing that their marriage has broken down irretrievably. In 2015, the Supreme Court granted the divorce by using powers under Article 142 of the constitution on the ground of irretrievable breakdown of marriage as the marriage was a dead marriage. Section 13B of Hindu Marriage Act provides for divorce by mutual consent and requires parties to wait for 6 months cooling of period.

The following three issues were raised and brought before the hon’ble Supreme Court for adjudication

 1) What is the scope and ambit of power and jurisdiction of the Hon’ble Supreme Court under Article 142(1) of the Constitution of India? 

2)While exercising its inherent power under this Article, can the Supreme Court waive off 6 months statutory period prescribed under Section 13-B of the Hindu Marriage Act, 1955?

3)When one of the parties to the divorce stands in opposition to the divorce petition, can the Supreme Court grant divorce on the ground of irrevocable breakdown of marriage while exercising its power under Article 142(1)?

In the matter of irretrievable break down of marriage the constitutional bench actually decided that there can be an invoking of the powers under Article 142 and thereby grant divorce for the parties, the very essence is that it can be done on the notion of complete justice and thereby can be dispensed  . Article 142 Can’t Be Invoked To Dissolve Marriage On Ground Of Irretrievable Breakdown as we can see that the court which the statute is referring to is the family court or the competent district court . 

Section 13B(1) in The Hindu Marriage Act

Section 13B(1) in The Hindu Marriage Act, 1955 provides that (1)Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnised before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

Here the court said that there can be a clear action of procedure by law as per the statute. Hence we can say that it is the jurisdiction of the court at the subordinate to grant the divorce. In the matter of setting the ground of divorce as irretrievable breakdown which means that the same marriage cannot be reimbursed and can actually be leading to death of the marriage itself. Such a matter has happened in the same case. The point here is that there is an expressed statutory provision which actually says the due procedure which is in a way the very intention of the legislature or the reflection of people’s will which can’t be ignored. This raises the question whether invoking 142 for bypassing the said statutory provision is barbaric and against the spirit of constitution?

The Article 142 is not an independent power and hence must be exercised in conjunction with the other powers vested in the supreme court.

Article 142: Setting the checks and Balances

The million dollar question is whether Article 142 be used against an expressed statute, thereby to bypass the provisions in the name of complete justice. It is a rooted affirmatively in our  constitution that ,under our Constitution ,no one is imperio in imperium that is an empire within an empire, and not even the Supreme Court. It can be argued that the Supreme Court could not exercise its powers under Article 142 to dissolve marriages at all or in any other manner, If a statute provides a particular procedure for the exercise of power, it shall be exercised in that manner and in no other manner. The Parliament has in its wisdom conferred the statutes and it ought to be done as per the legislations. In the case of Shilpa Sailesh vs Varun Sreenivasan the court which is said in the statute 13 –B is the district court or the family court and most importantly it is not the Supreme court. Hence by applying Article 142, the Supreme Court itself is utilizing the plenary powers as vested in them which is pretty much similar to stepping in to the shoes of the legislator and hence by this action the very ambit of doctrine of separation of powers are destroyed. The purpose underlying the separation of powers doctrine is to diffuse governmental authority so as to prevent absolutism and guard against arbitrary and tyrannical powers of the state, and to allocate each function to the institution best suited to discharge it, so there has to be a setting of limit and due consideration ought to be giver for every organs of the State. Law has to function as an instrument of justice. Law without element of justice will become an instrument of oppression. As the concept of justice is ever changing, law must live up to the aspirations of the society and the age. This  means there need to be a balance between the justice disposed by the courts and then by the justice as envisaged in the statutes.

CONCLUSION

It is necessary to find out the  Scope and extent of power under Article 142 IN CRIMINAL PROCEEDINGS AND IN HUMAN RIGHTS REGIME and to examine whether there is a need for a revisit in using this power? In the case of Ritesh Sinha vs. State of Uttar Pradesh, the  matter relating to the TAKING OF VOICE SAMPLE & SEC 311A Crpc was in question. Here the Police lodged an FIR alleging that one Dhoom Singh in association with the appellant Ritesh Sinha, was engaged in the collection of money from different people on the promise of jobs in the police. The issue that was raised before the court was whether the accused can be compelled to give his/her voice sample for identification purposes in an ongoing criminal investigation .The Supreme Court answering in affirmative said that Article 142 of the constitution could be invoked to confer such power on the magistrate and therefore, a judicial magistrate can now direct an accused to provide voice samples without even seeking his consent. The pronouncement is important because it is one of the cases that are not getting solved due to lack of proper evidence even though the so called complete justice is used by invoking ARTICLE 142.

The use of ARTICLE 142 must need a new dynamics ,there must be proper guidelines in making this Article in action , and the given the wide scope of the Article, the plenary powers under Article 142 must be used sparingly.

END NOTE 

 ‘A.R. Antulay vs R.S. Nayak & Anr on 29 April, 1988’ <https://indiankanoon.org/docfragment/1353689/?formInput=Prem%20Chand%20v%20Excise%20Commissioner> accessed 29 January 2024.

 ‘Article 142 and the Case of Irretrievable Breakdown of Marriage: A Study by Anish Kamal :: SSRN’ <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3899986> accessed 28 January 2024.

 Article 142 in Constitution of India.

 Dr K Sivananda Kumar, ‘Article 142: Enforcement of Decrees and Orders of Supreme Court and Unless as to Discovery, Etc’ (2 February 2020) <https://papers.ssrn.com/abstract=3530332> accessed 28 January 2024.

 Constitution of India Pdf – Google Search <https://www.google.com/search?q=constitution+of+india+pdf&oq=constit&gs_lcrp=EgZjaHJvbWUqDAgBECMYJxiABBiKBTIGCAAQRRg5MgwIARAjGCcYgAQYigUyEggCEAAYQxiDARixAxiABBiKBTIMCAMQABhDGIAEGIoFMg8IBBAAGBQYhwIYsQMYgAQyDAgFEAAYQxiABBiKBTINCAYQABiDARixAxiABDINCAcQABiDARixAxiABDIKCAgQABixAxiABDIHCAkQABiPAtIBCTYzODJqMGoxNagCALACAA&sourceid=chrome&ie=UTF-8> accessed 28 January 2024.

 ‘HINDU MARRIAGE ACT’ <https://indiankanoon.org/search/?formInput=HINDU+MARRIAGE+ACT+> accessed 28 January 2024.

 ‘Shilpa Sailesh vs. Varun Sreenivasan’, <https://indiankanoon.org/search/?formInput=Shilpa%20Sailesh%20vs.%20Varun%20Sreenivasan%2C%20> accessed 28 January 2024.