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International Referred Research Journal ISSN-0974-2832 VOL.

II * ISSUE15 April, 2010

Research PaperLaw


*Dr. Sopan Ivare
April, 2010

* Assistant Professor in Law,Yashwantrao Chavan Law College, Pune.

The Constitution of India has accepted the federal polity in the matters of legislative and executive functions of the government. But as to judicial functions it has accepted an integrated unified judicial system. It has no separate systems of union and state courts. All the courts and tribunals of a unified hierarchical judicial system deal with the enforcement of laws of union as well as of states. The articles 124 to 147 in Chapter IV of Part V of the Constitution of India under the heading the Union Judiciary deal with the establishment and constitution of the Supreme Court, the appointment of judges and their powers, rights, jurisdiction and service conditions.1 The Constitution of India granted different kinds of powers and jurisdictions to the Supreme Court. The Supreme Court enjoys original, appellate, and advisory jurisdiction and power of review of its own orders or judgments. It can punish the contempt of its authority. It can also interfere with decisions of inferior courts and tribunals in appeal by special leave. The Supreme Court in addition to those constitutional powers and jurisdictions also has jurisdiction and powers with respect to any matter if the jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of the Constitution under any existing law. In addition and supplementary to these powers the Supreme Court may exercise powers under article 142 to do complete justice in any cause or matter pending before it. The article 142 confers ancillary or incidental powers upon the Supreme Court for doing complete justice in any cause or matter pending before it. It empowers the Supreme Court to do complete justice and reduce the gap between legal justice and real

justice. It provides for two principles: (a) Firstly, 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. The decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by Parliament by making law. (b) Secondly, 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 investigation or punishment of any contempt of itself. This power of the Supreme Court under article 142 shall be subject to the provisions of any law made in this behalf by Parliament. The term territory of India used in article 142 means the territory which is ceded to the territory of India. If the Government of India exercised de facto control over the territory it cannot be considered a territory of India.2 The expression cause or matter in article 142 is very wide covering almost every kind of proceedings in Court. The limited interpretation of the expression cause or matter would disable and make the Court helpless to do complete justice as intended by article 142.3 Such cause or matter may be in its appellate or original jurisdiction including a petition under article 32. The Constitution has, by article 142, empowered the Supreme Court to make such orders as may be necessary for doing complete justice in any cause or matter pending before it. Though, law declared by the Supreme Court is binding on all Courts within the territory of India under article 141, the High Court cannot issue orders similar to that of the Supreme Court in exercise of powers under article 142

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International Referred Research Journal ISSN-0974-2832 VOL. II * ISSUE15 April, 2010 of the Constitution.4 The article confers wide powers that powers under article 142 are subject to express upon the Supreme Court for doing complete justice prohibitions of ordinary statute. The question whether between the parties. They are intended to be and will the Supreme Court is empowered to do justice to one always be exercised in the interest of justice. The party by ignoring mandatory statutory provisions was Constitution Bench of the Supreme Court first time again considered and differed by the Constitution discussed at length the meaning of the term complete Bench of the Supreme Court in Supreme Court Bar justice in Prem Chand Garg v. Excise Commissioner, Association v. Union of India.10 In that case the Court Uttar Pradesh.5 The question before the Court was expressed cautious and balanced approach as to the that whether the Supreme Court could issue an order exercise of powers under article 142. The Court under article 142 inconsistent with any of the observed that the powers conferred on the Supreme fundamental rights. The Court answered the question Court by article 142 are curative in nature and they in the negative and viewed that an order issued by cannot be construed to authorise the Court to ignore the Supreme Court to do complete justice between the substantive rights of a party. The Court further the parties must be consistent with the fundamental observed that the power cannot be used to supplant rights as well as with the substantive provisions of substantive law applicable to the matter or cause the relevant statute. The Supreme Court circumscribed under consideration. In the words of the Court the its powers under article 142. This view of the article 142 cannot be used to build a new edifice where Constitution Bench in Prem Chand Garg was none existed earlier, by ignoring express statutory approved by a larger Bench of Nine Judges of the provisions dealing with a subject and thereby achieve Supreme Court in Naresh Shridhar Mirajkar v. State something indirectly which cannot be achieved of Maharashtra6 and by a Seven Judge Bench in A.R. directly. This view was approved by the Court in M.C. Antulay v. R.S. Nayak.7 The rule that article 142 does Mehta v. Kamal Nath,11 where it was held that the not contemplate doing justice to one party by ignoring exercise of power under article 142 of the Constitution mandatory statutory provisions was differed by the cannot be used where action under it would amount Supreme Court in Delhi Judicial Service Association, to contravention of the specific provisions of a Tis Hazari Court, Delhi v. State of Gujarat.8 In that statute. case the Presiding Officer of Court was arrested and The above discussion shows that the humiliated by a Police Officer on flimsy and interpretation of the term complete justice made by manufactured charges. the Supreme Court is not consistent. It is submitted The question before the Supreme Court was that that the rule laid down in Prem Chand Garg which whether the Court under article 142 has power to quash was approved in Naresh Shridhar Mirajkar and A.R. proceedings pending before subordinate court. The Antulay and further explained in Supreme Court Bar Court viewed that in Prem Chand Gargs case Association and M.C. Mehta reflect the correct observations with regard to the extent of the Supreme position in law. The jurisdiction of the Supreme Court Courts power under article 142 were made in the under article 142 is supplementary in nature. The context of fundamental rights and hence those supplementary powers cannot be used for doing observations were not relevant to the question in justice to one party by ignoring mandatory statutory issue. It was observed that the Courts power under provisions which are constitutionally valid. The article 142 to do complete justice is entirely of Supreme Court may exercise the power to do complete different level and of a different quality. Any justice to cure procedural infirmities12 and the exercise prohibition or restriction contained in ordinary laws of it must not confer any substantive rights upon the cannot act as a limitation on the constitutional power party. The exercise of power to confer a substantive of the Supreme Court. The Court has power to issue right upon one party may lead to doing of complete any order or direction to do complete justice in the injustice to the other party. His Lordship Justice P. B. matter or cause. The constitutional power of the Gajendragadkar in Prem Chand Garg rightly pointed Supreme Court under article 142 cannot be limited or out the purpose of power of the Supreme Court under restricted by the provisions contained in statutory article 142. His Lordship opinioned that the powers law. These observations were approved by the given to the Supreme Court by article 142 can be used, Constitution Bench of the Supreme Court in Union for instance, in adding parties to the proceedings Carbide Corporation v. Union of India.9 In that case pending before it, or in admitting additional evidence, the Court viewed that it will be wholly incorrect to say or in remanding the case, or in allowing a new point to



International Referred Research Journal ISSN-0974-2832 VOL. II * ISSUE15 April, 2010 be taken for the first time. The Supreme Court in manifest illegality or results in palpable injustice;16 (e) exercising these powers would not be bound by the to condone delay;17 (f) to direct the Government of relevant provisions of procedure if it is satisfied that India to produce the contemner, a Speaker of a departure from the said procedure is necessary to Legislative Assembly, who claimed immunities under do complete justice between the parties. The facts article 361, in person in the Supreme Court;18 (g) and circumstances of each case would be considered to enhance the sentence awarded to the accused who in deciding the need of complete justice in a cause filed the appeal challenging the conviction or matter. The power under article 142 is a residuary passed by the High Court;19 (h) to overrule procedural power, supplementary and complementary to the or other technical objections;20 (i) to rescue and powers specifically conferred on the Supreme Court rehabilitation of the prostitutes and their children in a by statutes. petition under article 32;21 (j) to seek expunction of The Supreme Court has exercised the powers objectionable remarks made by a of High Court against under article 142 to support its statutory jurisdictions, a subordinate judge;22 (k) to mould the relief to give including jurisdiction under article 32, and for various effect to its declaration prospectively;23 (l) to examine purposes. The purposes for which the Supreme Court and to assist the matters under article 32;24 and (m) by has used the powers under article 142 over the years providing compensation, to the victims of violations are listed below. The list is illustrative and not of right to life and personal liberty.25 exclusive: (a) to send the matter back to the revisional It is found that the Supreme Court of India has authority;13 (b) to extend the benefit of its judgment made the significant use of powers under article 142 to the persons who have not prosecuted their to support its jurisdiction under article 32 of the appeals;14 (c) to examine the evidence by itself, instead Constitution which imposes a constitutional of sending the case back to the High Court for reobligation on it to forge new tools, which may be decision, to ensure speedy disposal of the case;15 (d) necessary for doing complete justice and enforcing to quash the proceeding which contains some the fundamental rights guaranteed in the Constitution.

Similarly, the articles 214 to 231 in Chapter V of Part VI under the heading the High Courts in the States deal with the establishment and constitution of High Courts, the appointment and conditions of offices of the judges of a High Court, their powers, rights, jurisdiction, service conditions including the transfer from one High Court to another, etc. The articles 233 to 237 in Chapter VI of Part VI provides for the Subordinate Courts.2 N. Masthan Sahib v.Chief Commissioner, Pondicherry, AIR 1962 SC 797.3 Union Carbide Corporation v. Union of India, AIR 1992 SC 248.4 State of Punjab v. Surinder Kumar, AIR 1992 SC 1593. See also C.M. Singh v. H.P. Krishi Vishva Vidyalaya, AIR 2000 SC 3638.5 AIR 1963 SC 996.6 AIR 1967 SC 1.7 AIR 1988 SC 1531.8 AIR 1991 SC 2176.9 AIR 1992 SC 248 at Para 197.10 AIR 1998 SC 1895. See also M.S. Ahlawat v. State of Haryana, AIR 2000 SC 168, where it was held that under article 142 of the Constitution, the Supreme Court cannot altogether ignore the substantive provisions of a statute.11 AIR 2000 SC 1997. See also E.S.P. Rajaram v. Union of India, AIR 2001 SC 581; and Textile Labour Assocn. v. Official Liquidator, AIR 2004 SC 2336.12 Dr R. Prakash, Complete Justice under Article 142, (2001) 7 SCC (Jour) 14.13 Municipal Board, Pushkar v. State Transport Authority, Rajasthan, AIR 1965 SC 458.14 B. N. Nagarajan v. State of Mysore, AIR 1966 SC 1942. See also Managanese Ore (India) Ltd. v. Chandi Lal Saha, AIR 1991 SC 520.15 Mahendra Singh v. State of West Bengal, AIR 1973 SC 2288. See also Comptroller and Auditor General of India v. K. S. Jagannathan, AIR 1987 SC 537.16 A.R. Antulay v. R.S. Nayak, AIR 1988 SC 1531. 17 Union of India v. Kolluni Ramaiah, AIR 1994 SC 1149.18 I. Manilal Singh v. Dr. H. Borobabu Singh, AIR 1994 SC 505.19 E. K. Chandrasenan v. State of Kerala, AIR 1995 SC 1066. See also Chandrakant Patil v. State, AIR 1998 SC 1165.20 Delhi Development Authority v. Skipper Construction Company (P) Ltd., AIR 1996 SC 2005.21 Gaurav Jain v. Union of India, AIR 1997 SC 3021.22 In the matter of K a Judicial Officer, AIR 2001 SC 972.23 Somaiya Organics (India) Ltd., M/s. v. State of Uttar Pradesh, AIR 2001 SC 1723. See also Kailash Chand Sharma v. State of Rajasthan, AIR 2002 SC 2877.24 All India Judges Association v. Union of India, AIR 1999 SC 1555.25 Nilabati Behera v. State of Orissa, AIR 1993 SC 1960. See also Bodhisattwa Gautam v. Subhra Chakraborty, AIR 1996 SC 922.

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