Riding power without bridles

An undefined constitutional clause has grown too big for the times

Few provisions in the Constitution have grown from apparent insignificance to acquire formidable power as Article 142. It grants power to the Supreme Court to pass any decree to do “complete justice”. The founding fathers did not expect this enormous transformation and passed the rule without debate in May 1949. But gradually, the court invoked this Article more and more and it has become an immense source of judicial authority. It was used in the recent Ayodhya judgment, orders in the National Register of Citizens, coal mine cases, constitutional appointments and ban on liquor shops on highways, to name a few.

The term complete justice consists of two words which are elastic at the hands of judges, who interpret it in different contexts. Several judgments have tried to explain the phrase, but it still remains fuzzy. Some decisions assert that it could be used to fill a vacuum when the statutes are silent. Some others maintain that the power is supplementary, complementary and affirmative. In one judgment, the Supreme Court declared it is advisable to leave this power “undefined and uncatalogued”. The power is vested only in the Supreme Court and that was assumed to be a guarantee that it will be used only with “restraint and circumspection”.  The judges, however, have cautioned that this provision, which is not found in any revered democratic constitutions, should be used sparingly. But the current trend is to invoke it in high profile cases fraught with political and economic consequences. The sword of "complete justice", held by unelected judges, hangs over sensitive cases and could strike at any time.

In the Ayodhya judgment, two crucial orders were based on this Article -- the grant of five acres to build a mosque and the representation of Nirmohi Akhara in the proposed scheme. Earlier, the criminal cases involving the demolition of the structure were transferred from Rae Barely to Lucknow court when the trial was about to end after 25 years.

In the contentious issue of NRC in Assam, orders were passed in the same manner in two parallel public interest petitions. The matter is now in suspended animation before the court in view of the protests in the streets.

In the coal block allotment scam, this extraordinary power was exercised with disastrous consequences. Allocations granted from 1993 were cancelled in 2004 without hearing the allottees. The relentless march of this rule has caused anxiety in the field of environment.

The official Supreme Court Reports (SCR) recorded the use of Article 142 for the first time in the Nanavati case (1961) in which a naval officer convicted of murder was granted suspension of sentence pending appeal. SCR was silent after that for a long time on this power. It was understood that the power to do “complete justice” was to be exercised only in procedural matters. But after the Emergency of 1975, the law expanded to cover all injustices through public interest litigation. This Article was increasingly used to chase corrupt politicians (Vineet Narain judgement, 1997), judges ( K Veeraswami,1991), to settle claims in the Union Carbide case (1989), examine the Emigration Act (1979) and to device rules to tackle sexual harassment at workplace (Vishaka, 1997). Often the decrees are forgotten soon after they are passed, like the guidelines on the implementation of the Dowry Prohibition Act. How many would remember, for instance, the fiat that hospitals which import equipment with customs concessions must publish the names of the poor persons it has treated every month?

Discussions on Article 142 are usually couched in blurred or inscrutable language, disregarding the dictum that language of law must be clear and simple. An ordinary person, for instance, would be nonplussed by a passage in the Ayodhya judgment: “Where rigidity is considered inadequate to address a situation, the plenary power of this court for doing complete justice is an appeal of last resort to the inherent quality of equity that the law is designed to protect, to ensure that the court is empowered to craft a relief that comports with both reason and justice.” In the present volatile situation in multi-religious polity and law, it is important to follow transparent and strict guidelines on the use of Article 142. A torrent of words, as lawyers know, hides a weak stance. Commenting on the trend some time ago, the present Attorney General K K Venugopal quoted US Justice Benjamin Cardozo, who said that a judge “is not a knight-errant roaming at will in pursuit of his own ideal...”