The basic structure of the Constitution that invokes separation of powers between the three organs of the State and ensures supremacy of the rule of law should guide us all the time
Whenever an aggrieved person approaches the Supreme Court, he/she is well aware that this body is at the very apex of the judicial hierarchy and that no further appeal is possible before any other authority, beyond this court. As such, the common man would naturally appreciate that this is the end of his/her quest for justice. While this is true, the fact is also that by virtue of the powers vested in the top court, through provisions in Article 142 of the Constitution, it has been empowered to deliver complete justice. So, does this mean that the delivery of justice, except for as provided in Article 142, will remain incomplete or lacking in any manner? While this is obviously not the case, in order to fully appreciate the importance of Article 142 and the meaning of complete justice, we must look back at its genesis and subsequent interpretations over a period of time. For, complete justice travels far beyond the concept of giving justice to a party. Complete justice strives at imparting justice not just for one side, but for all.
While taking Article 210 from the Government of India Act, 1935, a modification was made and the draft Article 118 was finalised by the Constituent Assembly as: “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.” It is this draft that was finally adopted as Article 142 in the final version. This was passed by the Constituent Assembly as it is, and without a debate on May, 27, 1949, except that during the stage of revision, the words “and until provision in that behalf is so made in such manner as the President may by order prescribe” were added to it.
It was observed by the Supreme Court itself that the power to do complete justice is entirely of a different level and quality and cannot be limited or restricted by the provisions of the statutory law. Further, powers have been conferred for due and proper administration of justice and whenever the court sees that the demand for justice warrants exercise of such powers, it will reach out to ensure that justice is done by resorting to this extraordinary provision introduced in the Constitution to meet the demands of just such a situation.
Broadly, the apex court has acted in such matters where there is some manifest illegality or where some palpable injustice has resulted and the grant of relief is beyond the parameters of the statutory law. On certain occasions, the decrees passed under this Article appear to have assumed the shape of executive directions, which are, of course, in larger public interest, from which the society has benefitted immensely. One of the most celebrated matters where such directions were issued under this Article happens to be the Taj Trapezium case. As is well known, on account of severity of environmental pollution in the Agra-Mathura area, the marble of Taj Mahal, an iconic heritage monument, had begun to fade into shades of yellow. The Supreme Court, under Article 142, imposed severe restrictions in the Taj Trapezium zone and ensured stringent enforcement of its orders. This has since resulted in the Taj Mahal returning back to its old glory.
In yet another case, on account of our painfully slow and archaic criminal justice system, it was discovered that in hundreds of cases, undertrial prisoners continued to be in custody for periods more than that prescribed for maximum imprisonment on conviction. All such prisoners were given due relief by the top court.
Similarly in the Bhopal Gas tragedy case, too, the top court, acting under Article 142, while awarding a compensation of $470 million to the victims, stated that the power under this Article must be exercised sparingly for furthering the ends of justice. But if such power was conditioned by any statutory limitations, it would defeat the very purpose for conferment of such wide powers. In a way, this could be interpreted as the Supreme Court having placed itself beyond and above the statutes. But this impression was subsequently corrected, where it was said that Article 142 could not be used to supplant the existing law but only to supplement the law. However, applications have varied from case to case as this provision offers a certain degree of elasticity.
On the other hand, there have been cases where the use of Article 142 appears to have gone into the domain of the executive. Very often, legal luminaries have cited the cancellation of coal block allotments in this context, where individual allottees were not heard but penalties were imposed. Similarly, the directions under this Article came under a lot of criticism as the apex court imposed a ban on liquor stores within 500 metres of the national highways as well as the State highways. The order led to hundreds of job losses besides loss of revenue. Ultimately, it was discovered that drunken driving resulted in only 4.2 per cent of the accident cases in 2015 as against 44.2 per cent caused due to over-speeding.
The current debate is on whether Article 142 can be treated as a source of substantive power in ensuring the observance of the due process of the law. The concept of due process of law was originally negated by the Constituent Assembly in favour of a procedure established by the law in relation to Article 210. At the same time, there have been opinions on whether Article 142 confers substantive powers on the apex court or is it merely a procedural instrument?
According to former Chief Justice of India Justice PB Gajendragadkar: “It may be pertinent to point out that the wide powers, which are given to this court for doing complete justice between the parties, do not bind the court to adhere to the relevant procedures if it is satisfied that a departure from the said procedure is necessary to do complete justice between the parties.” It is clear that exercising these and similar other powers would mean that Article 142 gives the liberty to the Supreme Court only in matters of procedure. He further elaborated: “An order, which this court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.”
In the context of the recently-concluded Ayodhya matter, it has been observed that in assessing the submissions of the parties and arriving at the eventual conclusion, the needs of justice required specific attention to the peculiarities of the case. The case canvassed the rule of law, religion and law and conquest, besides a myriad of conflicting interests. These could not always be comprehended within the available statutory framework applicable to the present facts. All these make the role of the court even more sensitive as it has to craft a relief that accords with justice, equity and good conscience.
As observed in the judgment, the obliteration of the Islamic structure was an egregious violation of the rule of law. At the same time, it was mentioned that the Supreme Court cannot entertain claims that stem from the actions of the Mughal rulers against Hindu places of worship in a court of law today. But the court went on to say that in exercising the powers under Article 142 of the Constitution, it must ensure that a wrong committed must be remedied. Justice would not prevail if the court were to overlook the entitlement of the Muslims, who have been deprived of the structure of the mosque through means that should not have been employed in a secular nation committed to the rule of law. As our Constitution postulates the equality of all faiths, tolerance and mutual co-existence nourish the secular commitment of our nation and its people.
In conclusion, one can only say that in the normal course, the basic structure of the Constitution invoking separation of powers between the three organs of the State, while at the same time ensuring the supremacy of the rule of law, needs to be our guiding principle at all times, including the application of Article 142 to various situations.
(The writer is a retired Delhi Police Commissioner and former Uttarakhand Governor)
