Constitutional Law

ARTICLE 142: INCOMPLETE JUSTICE?

INTRODUCTION

As Marcus Cicero[1] aptly puts it - “Great is our admiration of the orator who speaks with fluency and discretion.” Yet, this admiration itself comes with a sense of caution – the necessity of restraint. Wherever there is discretion, it ought to be balanced with a sense of restriction that not just defines its scope, but also acts as a guiding principle; that provides directions as to when and how it is to be exercised.

The absence of any such scope defining restriction on the Supreme Court of India, with reference to its extraordinary power under Article 142(1) of the Indian Constitution, forms the subject matter of the forthcoming pages. The article also deals with the much debated question – whether the specific constitutional provision overrides the existing substantive law, both of which promote ‘complete justice’?

ARTICLE 142 (1): EXTRAORDINARY POWER

Article 142, ¶ 1 of the Constitution of India provides that,

“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 orders 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]

The mentioned power of the Honourable Supreme Court of India is often referred to as its ‘Extraordinary Power’; and rests solely on one criterion- the need for doing complete justice. As the law establishes in different words, the apex court may pass any decree or order if the necessity of ‘complete justice’ requires so.

The expression ‘cause’ or ‘matter’ includes any proceeding pending in the Court and would cover almost every kind of proceeding in the Court, including civil or criminal; or appellate or original.[3]...