A CRITICAL STUDY OF PLENARY POWERS

OF
SUPREME COURT UNDER ARTICLE 142
OF
THE CONSTITUTION OF INDIA
INTRODUCTION
 1

CHAPTER!

"Whenever there is decline ofrighteousness and rise of unrighteousness /

incarnate myselfto protect the virtuous and to destroy wickedfrom age to age."

-Shrimadbhagwatgeeta IV 718

This is true because man’s greatest interest on the earth is justice and seat

of justice is seat of God. The state must always use its supreme power for

establishment of justice. This power is distributed amongst three organs of the

state. Legislative body is expected to legislate for securing objective and policy

set out in the Constitution, of which protection of fundamental rights and human

rights are inseparable parts. Executives have to execute these laws and the

policies. The prime responsibility is of Courts to see that the legislatures and

executives while discharging their respective duties are not encroaching upon the

fundamental rights of the people and doing justice with them. As it is stated

earlier the sovereign power of the state is entrusted to these three organs.

Constitution defines powers and functions of these organs. The task of

governance of state is not entrusted to any one institution exclusively—it is the

task which is to be shared by each one of these three organs. Thus, according to

Indian constitution the powers of these organs are coextensive with each other.

No one is superior to the other. They have to function in coordination with each

other.

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
 2

real sense has expanded 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. This article which was intended to be

used sparingly is nowadays used frequently. 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 into lime light This has raised doubts as to the legitimacy of the Supreme

Court actions. In this context the provision of Art. 142 are studied.

1.1 Literature Review

Rajat Pradhan in his article “Ironing out the Creases: Re-examining the

Contours of invoking Art. 142 of the Constitution”1 observes frequent invocation

of this provision by the apex court, in order to grant mutual divorce where there is

deadlock between the parties. He has focused on the question Whether Art. 142

can be invoked to make an order or to pass decree which is inconsistent with

substantive statutory provisions. In order to justify the use of such power he has

developed constructive theory of interpretation.

Virendra Kumar on the same issue has written an article titled as “Judicial

Legislation under Art. 142 of the constitution: A Pragmatic Prompt For Proper

Legislation by Parliament2 .Relaying upon the decision of Supreme Court in

1 Rajat Pradhan, Ironing out the Creases: Re-examining the Contours ofInvoking Art. 142(1) of
the Constitution. http://www.conmienni.org/in/joumals/NALSAR 2011/1 pdf.
2 Virendra Kumar,"Judicial Legislation under Art. 142 ofthe constitution: A Pragmatic Prompt
for Proper Legislation by Parliament", 54.3 JUl (2012) 364.
 3

Premchand Garg v Excise commissioner, UP (1963)* he has observed Court

cannot pass orders under this provision which are inconsistent with the

substantive provisions of relevant statute. He further suggests that it is the

opportunity for the parliament to move in and to legislate in the area, which is

consistently being occupied by the apex court in exercise of its special powers

under Art 142 of the constitution.

Dr. Sopan Ivare has written research paper on “Power of The Supreme

Court to Do Complete Justice - Judicial Perspectives”*4 in this he describes the

power of the Supreme Court under Art. 142 as supplementary. It empowers Court

to reduce the gap between legal justice and real justice. This power is in support

of the power of the court under Art. 32 which imposes a constitutional obligation

on it to forge new tools, which may be necessary for doing complete justice and

enforcing fundamental rights under the constitution.

Dr R. Prakash5 while writing on “Compete Justice under Article 142” has

concentrated on the object of Article 142(l).According to him the object of the

provision is that, the Supreme Court must not be obliged to depend on the

executive for the enforcement of its decrees and orders. Such dependence would

violate the principles of independence of the judiciary and separation of powers,

both of which were held to constitute the basic structure of the Constitution.

However he further observes that the apex court by interpretation of complete

justice has given it a different dimension which was not intended by the founding

J 1963 AIR 996,1963 SCR Supp. (1) 885.

4 Dr. Sopan Ivare,"Power ofthe Supreme Court to do Complete Justice -Judicial Perspectives”
ht^^/www.ssnnBe.com/admm/images/pdf. at IS Apri, 2010
5 Dr. R. Prakash, “Complete Justice under Article 14T, (2001) 7 SCC (Jour) Page 14.
 4

fathers. Analyzing different case laws he comes to the conclusion that die

complete justice provision can be invoked for procedural purposes only.

Therefore Article 142 does not confer substantive power on the Supreme Court to

do "complete justice".

Harish B.N and Protima Pande have observed Article 142 is being

increasingly resorted to by Ihe apex court in all matters before it, where there is a

need for judicial activism.6 According to them, between 1950 to 1985 there were

around 15 reported decisions where Article 142 had been resorted to. In contrast,

in the post 1985 era there are already as many as 50 reported judgments where

this article is used. According to them there am three different approaches

adopted by the apex court while dealing with these cases. Conservative approach

adopted to make ancillary orders to give effect to decision rendered. Liberal

approach adopted to broaden the scope of this power. Expansive view adopted to

forge new tools necessary for doing complete justice.

After careful scrutiny of the sources available it can be observed that

recently Art. 142 has become a source of substantive power and is frequently

used. The power under Art. 142 is expended by the court through wide

interpretation. It is one of the areas where court has shown its activism to do

justice with the people, while this move of the court has been attacked by other

organs, on the ground that the said exercise of the power goes against theory of

separation of powers.

6 Harish B.N & Protima Pandey, “Supreme Court, Complete Justice and Article 142: Scopefor
Unlimited Judicial Action. ” HeinonIineebackup.com/hol_cgi-bin/getjdf.
 5

1.2 Importance and Relevance of Study

In the recent past Supreme Court has expanded judicial power

considerably. The influence of the judges and courts in day to day life of ordinary

people is increasing. Prof. S.P.Sathe says “There is new judicial assertiveness and

willingness on the part of the judiciary to confront with other branches of the

government. The contradiction between ‘legislating’ and ‘judging’ is not only

becoming blur but is completely obliterated.”7 Due to this, die harmony between

these three organs of government has become a matter of deep controversy and is

in jeopardy. The confrontation between the three organs, especially judiciary on

one hand and executive and legislatures on the other hand is not a new

phenomenon. But recently this has become unprecedented. Both the sides are

taking the demarcation of powers to a flash-point Judiciary is accused for

interfering in the legislative matters. The reaction is forming of opinion that

‘everyone has to remain within the Laxman Reka of the Constitution’. In recent

times, allegations have been made that the judiciary in general - and the Supreme

Court in particular - has, by entering into the domain of the executive, "taken

over" the administration of the country. The Courts in general and the Supreme

Court in particular is accused nowadays for its judicial activism or for usurping

power to establish a ‘government des judges’.

1 Satfae S.P., ‘Judicial Activism in India - Transgressing Borders and Enforcing Limits’, New
Delhi: Oxford University Press, page 310.
 6

This trend has created the feeling of insecurity amongst legislatures and

the executives. The reactions are noticeable. In the year 2005, then Lok Sabha

Speaker Somnath Chatteijee said that “there was a need for maintaining the

balance of power between the different pillars of democracy. The judiciary should

not interfere in the activities of the executive and legislature”. He went to the

extent of blaming judicial activism as an attack on the democracy. The criticism

against the judicial usurpation is resonating day in and day out Recently .putting

aside their differences, parliamentarians woe united in condemning judicial

overreach with Prime Minister Man Mohan Singh thumping the desk to endorse

leader of opposition Arun Jaitleys complaint that judiciary was encroaching

upon the turf of the legislature and executive.

Honorable the then Chief Justice of India S.H.Kapadiya has expressed

view “that judges should not govern the country or evolve policies and apply the

enforceability test on some verdicts like making ‘right to sleep’ a fundamental

right.” It is also observed that while expanding the limits of any provision in the

constitution and creating new rights by interpretation court shall take into account

the feasibility of it. Honorable Chief Justice further opined that “whenever

judiciary lays down die law, it should not interfere with governance. We are not

accountable to people. Objectivity, certainty enshrined in the basic principles of

the constitution has to be given weightage. Judges should go strictly by the

constitutional principles, which clearly demarcate the separation of powers among

the judiciary, the legislature and the executive.”

 7

These reactions have prompted various questions: Has the judiciary

crossed its limits? Has it encroached upon the powers of the legislatures and

executives thereby disturbing the basic structure of ‘Separation of Powers’? It is,

therefore, necessary to re-examine the roles postulated by the Constitution for the

three wings of the State in order to determine the ‘legitimacy’ of the powers

exercised by the judiciary? Focus of this criticism is the expanded unit of Art.

142 of the constitution and the directions which are issued by the apex court in

order to do complete justice. In order to answer these questions detail study of

Art 142 is necessary.

Thus there am good reasons to study functioning of the courts and to observe

changing trends regarding ‘use of plenary powers by the Supreme Court in order

to do complete justice’ .It is also necessary to evaluate the judicial decisions Vis a

Vis its outcome and impact on other organs. The study is also important from the

point of view to understand new dimensions of doctrine of Separation of powers.

Analysis of these decisions delivered under Art. 142 is required in order to

ascertain legitimacy of the use of this power.

Objectives of the Study

1. To ascertain philosophy, nature, scope and extent of plenary powers of

Supreme Court to do complete justice under Article 142 of the

constitution.

2. To study die legal framework surrounding the exercise of power under Art

142 of the constitution.

3. To identify conflicting ideas about the exercise of this power.

 8

4. To study various dimensions of ‘complete justice’ as explored by the

Supreme Court.

5. To compare emerging judicial trends in this regard.

Thus the main object of the present research work is to study expansion of

judicial power under Art 142 of the constitution and to analyze this in the context

of doctrine of separation of powers.

As this phenomenon is the outcome of judicial review and judicial

activism both the concepts are also studied.

1.4 Hypothesis

In order to comprehend above objectives of the research work following

hypothesis has been framed.

1. Art.142 confers very wide powers on die Supreme Court to do complete

justice in any case.

2. The expanded unit of Art.142 of the constitution disturbs the basic

structure of separation of powers adopted by Indian Constitution. It allows

judiciary to involve itself in the administrative and legislative functions of

the state.

3. Conceptually Art. 142 and separation of powers cannot co-exist.

1.5 Methodology

This research work is primarily doctrinal in nature as this method is

suitable for the topic. However wherever it is appropriate, opinions of judges and

academicians are included. Descriptive method, historical method and analytical

methods are adopted in order to achieve the object of the study.

 9

1.6 Sources of Study

This field of study primarily unfolds through case laws and judicial

decisions. Case laws U/ A 142 is the main source used to understand the nature

and scope of the power to do complete justice. However case citations and

mechanical narration of the principles enunciated into the case laws is not

sufficient .The context and the background in which these principles were laid

down is also a matter of concern. So the cases are discussed and are analyzed with

factual background, and the attempt is made to give only those factual matrices

which are relevant in the context of the Art. 142.

Acts, Statutes other relevant decisions of foreign and Indian Courts along

with some reference to committee reports are the primary sources used by the

researcher. The secondary sources on which the researcher has relied upon are

scholarly articles published in Indian and foreign journals and the text books of

renowned jurists, to name few of them Prof. Satyaranjan Sathe, Prof. Upendra

Baxi, H.M.Seervai and M.P.Jain. Information is also collected from other sources

especially from web pages available on internet.

1.7 Scheme of Chapterization

First chapter contains brief introduction and background of the study. It

highlights relevancy and importance of the topic in present context. Aims,

 10

objectives and Hypothesis of die study are clearly defined. Methodology and

sources of materials are summarily discussed.

Second chapter deals with theory of Separation of Powers. In this origin

and development of the theory is traced out. The theory expounded by

Montesquieu is discussed at length. The chapter contains comparative analysis of

the treatment given to the doctrine of separation of powers in U.S.A, U.K and

India. In India we have not adopted strict separation of powers but a different

version of it known as theory of checks and balances. Relevant provisions of the

constitution giving effect to this theory of checks and balances are discussed. The

theory has emerged as the basic structure of the constitution mainly through the

interpretation given by the Supreme Court, so relevant case laws giving effect to

this theory are thoroughly discussed.

Highlight of the third chapter is transformations that have taken place in

the role of die Court. This chapter deals with the concept and the analysis of the

role of the judiciary having focus on role of Supreme Court of India. The chapter

contains philosophical basis of concept of judicial review, its origin and

development in U.SA and England and in India. The researcher in this chapter

has attempted to explain the connections between the judicial review and judicial

activism further explaining the nature and scope of the judicial activism in India.

The trend of judicial activism in India started with the objective of enforcing

fundamental rights and human rights of the people. However nowadays judiciary

is always criticized for its excessivism or for its overreach; critical analysis of

various case laws highlighting this issue is presented in this chapter.

 11

Brief survey of the provisions of Indian constitution dealing with powers

and jurisdictions of Supreme Court of India is presented in the fourth chapter.

The focus of this chapter is Art. 142 which gives plenary power to the apex court

to do complete justice. This chapter covers die discussion on nature, scope and

philosophy of Art. 142 of the constitution. At the end it explores the connections

between plenary powers of the court and judicial activism.

Fifth chapter unfolds through the analysis of cases the use of plenary

powers by the court for different purposes. It deals with dynamics of this plenary

power. For this purpose the cases are grouped as follows-

a. Cases where Court has discharged legislative function

b. Cases where court has discharged executive function

c. Other isolated trends.

Use of plenary powers and judicial activism shown by the court under it is

the subject of criticism on different counts. An attempt is made in this chapter to

answer this criticism, justifying use of the provision by the Court for doing

compete justice.

As the court has discharged functions belonging to other organs an attempt

is made in sixth chapter to rind out new explanation which can justify use of the

power by the court. It argues the idea of compete justice is interpreted with

broadest connotations so that Court can legitimately exercise its plenary powers

and can satisfy needs and aspirations of the people in general. This is because the

‘idea of justice’ means only one thing i.e.to giving the people what they deserve.
 12

Thus idea of complete justice gives legitimacy to the courts actions and gives new

dimension to the theory of separation of powers.

In the seventh chapter, conclusions and suggestions are made on the basis

of the study and hypothesis tested.