While this Article confers powers bordering on the absolute to the apex court, it has been used in the past with reason and restraint

~By Inderjit Badhwar

The Supreme Court’s tenacity in not budging from its directive prohibiting the sale of liquor along highways has renewed the continuing debate on the merits and demerits of judicial activism and its impact on the concept of separation of powers enshrined in the constitution. This article questions neither the intention of the order, nor does it seek to take sides on the issue. What I will attempt, however, is to put into perspective the key legal edifice on which the judges relied and the extent of the powers it confers on them to influence the course of public policy.

Under heated discussion in the corridors of various courts and in lawyers’ chambers is Article 142 of the constitution, which the judges cited as the authority under which they passed the order. This Article permits the Supreme Court to pass decrees or make orders necessary for doing “complete justice” in any matter pending before it enforceable across India.

How absolute is this power? Can it be used without any check and balance to override existing laws or executive decisions? Some legal scholars and judges have argued that the Article does, in fact, confer powers bordering on the absolute to the Supreme Court, but that its benches, occupied by reasonable men and women of goodwill and conscience, will exercise this power with reason and restraint.

The counter-argument is that innate good sense and a respect for natural justice cannot by themselves prevent abuses and that there are institutional restraints carved out by the judiciary itself which can curb any judicial overreach under this Article.

There is a five-judge judgment of 2001 and a subsequent one passed in 2010, relying on the earlier one, which, if read together, make it clear that the powers, under Section 142, generally cannot be exercised to pass an order in contravention of or ignoring statutory provisions.

The larger Supreme Court bench consisting of Justices GB Patnaik, S Rajendra Babu, DP Mohapatra, Doraiswamy Raju and Shivaraj V Patil (Civil Appeal No. 441, E.S.P. Rajaram vs Union of India) observed in 2001 that Article 142 contains no limitation regarding the causes or the circumstances in which the power can be exercised nor does it lay down any condition to be satisfied before such power is exercised. Then comes the caveat: “However, this power is not to be exercised to override any express provision. It is not to be exercised in a case where there is no basis in law which can form an edifice for building up a superstructure. Supreme Court has not hesitated to exercise the power under Art 142 of the Constitution whenever it was felt necessary in the interest of justice.”

The powers of this Court are no doubt very wide and …will always be exercised in the interest of justice. But that is not to say that an order can be made by this Court which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution.

—Ruling in Prem Chand Garg v. Excise
Commissioner, U.P., (1963 Supp (1) SCR 885)

Citing a precedent for this observation, the five-judge bench referred to a 1998 case, Supreme Court Bar Association v. Union of India (AIR SCW 1706: AIR 1998 SC 1895) which held that under Article 142 of the constitution, the Supreme Court “cannot altogether ignore the substantive provisions of a statute and pass orders concerning an issue which can be settled only through a mechanism prescribed in another statute”.

In other words, this power cannot be used to “ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to substantive law applicable to the case or cause under consideration of the Court. 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 very nature of the power must lead the Court to set limits for itself within which to exercise those powers”.

The same judgment then referred to an earlier five-judge ruling, Prem Chand Garg v. Excise Commissioner, U.P., (1963 Supp (1) SCR 885) which established the precedent that Article 142 must be issued with the concurrence of the majority of judges hearing the matter. “The powers of this Court are no doubt very wide and they are intended to be and will always be exercised in the interest of justice. But that is not to say that an order can be made by this Court which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution.”

That Court made a significant observation: “Article 142 would not entitle a Judge sitting on a Bench of two Judges, who differs from his colleague to issue directions for the enforcement of his order although it may not be the agreed order of the Bench of two Judges. If this were to be permitted, it would lead to conflicting directions being issued by each Judge under Article 142, directions which may quite possibly nullify the directions given by another Judge on the same Bench. This would put the Court in an untenable position. Because if in a Bench of two Judges, one Judge can resort to Art 142 for enforcement of his directions, the second Judge can do likewise for the enforcement of his directions. And even in a larger Bench, a Judge holding a minority view can issue his order under Article 142 although it may conflict with the order issued by the majority. This would put this Court in an indefensible situation and lead to total confusion. Article 142 is not meant for such a purpose and cannot be resorted to in this fashion.”

In 2010, Justices Aftab Alam and Dr BS Chauhan ruled in Manish Goel v Rohini Goel (Special Leave Petition (C) No.2954), a marital dispute: “In Anil Kumar Jain (2009 AIR SCW 5899) (supra), this Court held that an order of waiving the statutory requirements can be passed only by this Court in exercise of its powers under Article 142 of the Constitution. The said power is not vested with any other court.

“However, we have also noticed various judgments of this Court taking a contrary view to the effect that in case the legal ground for grant of divorce is missing, exercising such power tantamounts to legislation and thus transgression of the powers of the legislature, which is not permissible in law. (Chetan Dass v. Kamla Devi, AIR 2001 SC 1709 : (2001 AIR SCW 1660); and Vishnu Dutt Sharma v. Manju Sharma (2009) 6 SCC 379) : (2009 AIR SCW 2984).

“Generally, no Court has competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law.”

Again, I stress, this article is not an opinion on the Supreme Court’s ban on liquor sales along highways but rather a brief legal recounting of the Court’s admirable history of awareness of exercising restraint when invoking Article 142.