By Vivek K Agnihotri
On May 13, 2022, using its omnibus powers under Article 142 of the Constitution of India, the Supreme Court in an unprecedented step ordered that existing judicial and administrative members of the Central Administrative Tribunal (CAT) should keep working even after their tenures end. This is to keep the Tribunal, which is crippled by 60% vacancies, functional.
The Court observed that CAT was created in 1985 to adjudicate service related grievances of central government employees. It had started with a pendency of 13,500 cases, transferred from various High Courts and subordinate courts, but this has since crossed 50,000 cases. What made matters worse was the fact that out of the 69 sanctioned strength of members in 19 benches of CAT across the country, only 29 were in place.
The order of the Supreme Court was not a bolt from the blue. One could see it coming, given the previous encounters. On March 24, 2022, expressing concern over the large number of vacancies in several tribunals, many of which were working headless and not able to take up cases, the Supreme Court had observed that if the government did not want tribunals, they should be abolished. This observation had come in the context of a PMLA tribunal in Delhi which could not hold any hearing over two years as the posts of chairman and members were vacant. A month earlier, in February 2022, the Supreme Court had expressed ire over a government move to introduce a statute on key tribunals merely days after the Court had struck down an identical law. This amounted to dishonouring the Court’s judgement.
Article 142 of the Constitution provides that the Supreme Court may pass a decree or order as is necessary for doing complete justice in any cause or matter pending before it. In simple language, this Article is in the nature of a veto power conferred on the Supreme Court. It is an inherent power and can be used for doing complete justice in any case or matter pending before the Court.
In the early years of the evolution of Article 142, the general public and lawyers lauded the Supreme Court for its efforts to bring complete justice to various deprived sections of society or to protect the environment. The Supreme Court has held that it has unfettered powers under Article 142 to enlarge the scope of hearing in a particular case in order to render substantive justice depending on the facts and circumstances of the case.
Under the Government of India Act, 1935, the Federal Court had no machinery for executing its decrees; it could only announce declaratory judgments. However, there is no such limitation under the present Constitution. Article 118 of the draft Constitution, however, became Article 142 of the present Constitution. No debate had taken place on the floor of the Constituent Assembly on “complete justice” under Article 118. The absence of any discussion on “complete justice” perhaps implies that the Article is intended for procedural purposes only.
A narration of some of the notable cases in which this extraordinary power of the Supreme Court was exercised in the past would underscore its importance. The most celebrated was the Supreme Court’s decision in Union Carbide Corporation vs Union of India, etc., 1989. The Court felt a need to deviate from the existing law to bring relief to thousands of persons affected by the gas leak, and awarded a compensation of $470 million to the victims. In its judgment, the Court said that to do complete justice, it could even override the laws made by Parliament and held: “…prohibitions or limitations or provisions contained in ordinary law cannot ipso facto act as prohibitions or limitations on the constitutional powers under article 142”. By this order, the Supreme Court placed itself above Parliament and state legislatures.
In more recent times, the Supreme Court exercised its powers under Article 142 to provide exemplary and much needed relief to the aggrieved parties. It was in the limelight when in 2019 it paved the way for the construction of a Ram Temple at the disputed site at Ayodhya, and directed the centre to allot an alternative 5-acre plot to the Sunni Waqf Board for building a new mosque at a “prominent” place in the holy town. The five-judge Constitution bench then headed by Chief Justice Ranjan Gogoi had used Article 142 to allot the alternative plot to the Sunni Waqf Board.
In October 2019, the Supreme Court had ordered the dissolution of a marriage of a couple by applying Article 142 of the Constitution. A bench of Justices Sanjay Kishan Kaul and MR 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.”
The apex court also used Article 142 in other cases, including cleansing of the Taj Mahal, coal blocks allocation, ban on the sale of alcohol along national and state highways and transfer of cases filed against persons accused in the Babri Masjid demolition case from Rae Bareilly to Lucknow.
Under Article 32, read with Article 142, the Supreme Court has issued guidelines and directions, including command for compliance of guidelines and standard operating procedures (SoP) in order to protect the rights under Article 21 read with Article 14. This is to provide immediate relief, till such time as the legislature steps in to substitute them by proper legislation. Thus, the guidelines prescribed by the Supreme Court in Vishaka and Ors vs the State of Rajasthan (1997) were followed by Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. The 2016 guidelines relating to Good Samaritan had a similar genesis. The Supreme Court’s judgment on passive euthanasia (2018) is also a case in point.
Article 142 (2) confers three different powers on the Supreme Court—securing attendance of persons before it, discovery and production of documents and investigation and punishment of contempt of itself. Justice Gajendragadkar (who later rose to become chief justice of India) had observed: “An order which this court can make in order to do complete justice between the parties must not only be consistent with fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws” (Prem Chand Garg vs. Excise Commissioner UP, AIR 1963 SC 996).
In 2011, the Supreme Court said: “the Supreme Court,… May pass such orders which the justice of the case demands and in doing so no fetter is imposed on the Court’s jurisdiction except of course any express provision of the law to the contrary, and normally this Court cannot ignore the same while exercising its powers under article 142.”
Article 142 may also be invoked to fill in the legislative gap if the legislature, so also the executive, fails to perform its responsibility (Vineet Narain vs Union of India, 1998). In most cases where the Supreme Court is perceived to have not merely supplemented but supplanted the law and thereby crossed the so-called Lakshman Rekha, it was actually exercising its inherent powers under Article 142.
Going back to the CAT conundrum, the additional solicitor general, appearing for the Union government, submitted to the Court that in April 2022, the government had issued an advertisement to fill up 34 posts and that the appointees would be available by the end of July. Apparently, the current practice is to pool together vacancies, from time to time, on an ad hoc basis, and then initiate action for filling them up. It is to be noted that the date on which a member is to retire is known on the day on which he joins the post. It, therefore, stands to reason that the vacancies can be identified on a quarterly or half-yearly basis, sufficiently in advance, in order to provide enough time to the government to complete all necessary formalities.
As Shakespeare said: “The fault, dear Brutus, is not in our stars but ourselves.” (Julius Caesar). In the case of the despairing vacancy situation in CAT, the fault, therefore, lies in government’s self-inflicting SoP relating to filling up of the vacancies rather than any extraneous circumstances.
The writer is former Secretary-General, Rajya Sabha