Introduction:
Article 142(1) of the Constitution of India reads:
“142. Enforcement of decrees and orders of Supreme Court and orders as to discovery,
etc.— (1) 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,
and any decree so passed or order so made shall be enforceable throughout the territory of India
in such manner as may be prescribed by or under any law made by Parliament and, until provision
in that behalf is so made, in such manner as the President may by order prescribe.”
This provision, apparently unique as it does not have any counterpart in most of the major written constitutions of the world, has its origin in and is inspired from the age-old concepts of justice, equity, and good conscience. Article 142(1) of the Constitution of India, which gives wide and capacious power to the Supreme Court to do ‘complete justice’ in any ‘cause or matter’ is significant, as the judgment delivered by this Court ends the litigation between the parties. Given the expansive amplitude of power under Article 142(1) of the Constitution of India, the exercise of power must be legitimate, and clamours for caution, mindful of the danger that arises from adopting an individualistic approach as to the exercise of the Constitutional power.
Interpreting Article 142(1) of the Constitution of India, in M. Siddiq (Dead) Through Legal Representatives (Ram Janmabhumi Temple Case) v. Mahant Suresh Das and Others , the Constitution Bench of the Supreme Court Court has summarised the contours of the power as:
1023 …The phrase ‘is necessary for doing complete justice’ is of a wide amplitude and encompasses a power of equity which is employed when the strict application of the law is inadequate to produce a just outcome. The demands of justice require a close attention not just to positive law but also to the silences of positive law to find within its interstices, a solution that is equitable and just. The legal enterprise is premised on the application of generally worded laws to the specifics of a case before courts. The complexities of human history and activity inevitably lead to unique contests “such as in this case, involving religion, history and the law — which the law, by its general nature, is inadequate to deal with. Even where positive law is clear, the deliberately wide amplitude of the power under Article 142 empowers a court to pass an order which accords with justice. For justice is the foundation which brings home the purpose of any legal enterprise and on which the legitimacy of the rule of law rests. The equitable power under Article 142 of the Constitution brings to fore the intersection between the general and specific. Courts may find themselves in situations where the silences of the law need to be infused with meaning or the rigours of its rough edges need to be softened for law to retain its humane and compassionate face…”
Words in the above quotation that ‘the equitable power under Article 142 of the Constitution of India brings to fore the intersection between the general and specific’ laws, should be read as making a reference to the classification of equity by Professor C.K. Allen in two principle forms: (i) a liberal and humane interpretation of law in general, so far as that is possible without actual antagonism to the law itself – called equity in general; and (ii) a liberal and humane modification of the law in exceptional cases, not coming within the ambit of the general rule – called particular equity.The words ‘cause or matter’ in Article 142(1) of the Constitution of India, which particularise and empower this Court to do ‘complete justice’ in that ‘cause or matter’, are relatable to particular equity . This is the reason that it has been held that Article 142(1) of the Constitution of India turns the maxim ‘equity follows the law’ on its head, as this Article in the Constitution of India gives legal authority to this Court to give precedence to equity over law. This power, like all powers under the Constitution of India, must be contained and regulated, as it has been held that relief based on equity should not disregard the substantive mandate of law based on underlying fundamental general and specific issues of public policy. Subject to this limitation, this Court, while moulding relief, can go to the extent of relaxing the application of law to the parties or exempting the parties altogether from the rigours of the law, in view of the particular facts and circumstances of the case. In I. C. Golak Nath and Others v. State of Punjab and Another , K. Subba Rao, CJ., while invoking the doctrine of prospective overruling, held that the power under Article 142(1) of the Constitution of India is wide and elastic, and enables this Court to formulate legal doctrines to meet the ends of justice, and the only limitation thereon is reason, restraint and injustice. Restraint and deference are facets of the Rule of Law, and when it comes to the separation of the role and functions of the legislature, the executive and the judiciary, the exercise of power by this Court to do ‘complete justice’, being for a ‘cause or matter’, does not interfere with and encroach on the legislature’s power and function to legislate. Clearly, when this Court exercises jurisdiction conferred by Article 142(1) of the Constitution of India to do ‘complete justice’ in a ‘cause or matter’, it acts within the four corners of the Constitution of India. The power specifically bestowed by the Constitution of India on the apex court of the country is with a purpose, and should be considered as integral to the decision in a ‘cause or matter’. To do ‘complete justice’ is the utmost consideration and guiding spirit of Article 142(1) of the Constitution of India.
In Union Carbide Corporation and Others v. Union of India and Others , the Supreme Court laid specific emphasis on the expression ‘cause or matter’ to observe that ‘cause’ means any action or criminal proceedings, and ‘matter’ means any proceedings in the court and not in a ‘cause’. The words ‘cause or matter’, when used together, cover almost every kind of proceedings in court, whether civil or criminal, interlocutory or final, before or after judgment. Having held so, the Court observed thus:
“83. It is necessary to set at rest certain misconceptions in the arguments touching the scope of the powers of this Court under Article 142(1) of the Constitution. These issues are matters of serious public importance. The proposition that a provision in any ordinary law irrespective of the importance of the public policy on which it is founded, operates to limit the powers of the apex Court under Article 142(1) is unsound and erroneous. In both Garg as well as Antulay cases the point was one of violation of constitutional provisions and constitutional rights. The observations as to the effect of inconsistency with statutory provisions were really unnecessary in those cases as the decisions in the ultimate analysis turned on the breach of constitutional rights. We agree with Shri Nariman that the power of the Court under Article 142 insofar as quashing of criminal proceedings are concerned is not exhausted by Section 320 or 321 or 482 CrPC or all of them put together. The power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142. Such prohibitions or limitations in the statutes might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the court on which conferment of powers — limited in some appropriate way — is contemplated. The limitations may not necessarily reflect or be based on any fundamental considerations of public policy. Sri Sorabjee, learned Attorney General, referring to Garg case, said that limitation on the powers under Article 142 arising from “inconsistency with express statutory provisions of substantive law” must really mean and be understood as some express prohibition contained in any substantive statutory law. He suggested that if the expression ‘prohibition’ is read in place of ‘provision’ that would perhaps convey the appropriate idea. But we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of “complete justice” of a cause or matter, the apex Court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the powers of the Court under Article 142, but only to what is or is not ‘complete justice’ of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise.”
Whether this ratio is in conflict with the earlier decisions of the Court, including Prem Chand Garg and Another v. The Excise Commissioner, U.P. and Others , wherein five judges of the Constitution Bench had held that this power under Article 142(1) of the Constitution of India cannot be employed to make an order plainly inconsistent with the express statutory provision or substantive law, much less inconsistent with any Constitutional provisions, was examined by another five judges’ bench of this Court in Supreme Court Bar Association v. Union of India and Another , to observe that there was no conflict of ratios as elucidated in Union Carbide Corporation (supra) and other cases. It is one thing to state that prohibitions or limitations cannot come in the way of the exercise of jurisdiction under Article 142(1) of the Constitution of India to do ‘complete justice’ between the parties in the pending ‘cause or matter’ arising out of that statute, but quite a different thing to say that, while exercising jurisdiction under Article 142(1) of the Constitution of India, the Supreme Court Court can altogether ignore the substantive provisions of the statute dealing with the subject and pass orders concerning an issue which can be settled only through a mechanism prescribed in the statute. These observations were in the context of the powers conferred on the State Bar Councils under the Advocates Act, 1961, which, at the first instance, is empowered to decide whether an advocate is guilty of professional misconduct depending on the gravity and nature of his contumacious conduct. The Supreme Court, in Supreme Court Bar Association (supra), has highlighted that the jurisdiction of the Supreme Court in contempt, and the jurisdiction of the State Bar Councils under the Advocates Act, 1961 are separate and distinct, and are exercisable by following separate and distinct procedures. The power to punish for contempt of court vests exclusively with the courts, whereas the power to punish an advocate for professional misconduct has been vested with the concerned State Bar Council and the Bar Council of India.
A distinction must be drawn at this stage, as noticed in Union Carbide Corporation (supra), between the Constitutional power exercisable by this Court under Article 142(1) of the Constitution of India, and the inherent power of the civil court recognised by Section 151 of the C.P.C. and the inherent power of the High Court under Section 482 Cr.P.C., which provisions empower the civil court in civil cases and the High Court in criminal cases to pass such orders as may be necessary to meet the ‘ends of justice’ or to prevent abuse of the process of court. The expression ‘ends of justice’ refers to the best interest of the public within the four corners of the law, albeit the courts are not empowered to act contrary to the procedure on the particular aspect of law provided in the C.P.C. and the Cr.P.C. Where the C.P.C. and the Cr.P.C. are silent, the civil court or the High Court,respectively, can pass orders in the interest of the public, for the simple reason that no legislation is capable of contemplating all possible circumstances that may arise in future litigation and consequently provide a procedure for them . Thus, the C.P.C. and the Cr.P.C. should not be read as to limit or otherwise affect the inherent power of the civil court and the High Court, respectively, to make such order as is necessary for the ‘ends of justice’, or to prevent abuse of the process of the court. The Constitutional power conferred by Article 142(1) of the Constitution of India on this Court is not a replication of the inherent power vested with the civil court under the C.P.C., and the High Court under the Cr.P.C.
Given the aforesaid background and judgments of this Court, the plenary and conscientious power conferred on this Court under Article 142(1) of the Constitution of India, seemingly unhindered, is tempered or bounded by restraint, which must be exercised based on fundamental considerations of general and specific public policy. Fundamental general conditions of public policy refer to the fundamental rights, secularism, federalism, and other basic features of the Constitution of India. Specific public policy should be understood as some express pre-eminent prohibition in any substantive law, and not stipulations and requirements to a particular statutory scheme. It should not contravene a fundamental and non-derogable principle at the core of the statute. Even in the strictest sense , it was never doubted or debated that this Court is empowered under Article 142(1) of the Constitution of India to do ‘complete justice’ without being bound by the relevant provisions of procedure, if it is satisfied that the departure from the said procedure is necessary to do ‘complete justice’ between the parties. Difference between procedural and substantive law in jurisprudential terms is contentious, albeit not necessary to be examined in depth in the present decision , as in terms of the dictum enunciated by this Court in Union Carbide Corporation (supra) and Supreme Court Bar Association (supra), exercise of power under Article 142(1) of the Constitution of India to do ‘complete justice’ in a ‘cause or matter’ is prohibited only when the exercise is to pass an order which is plainly and expressly barred by statutory provisions of substantive law based on fundamental considerations of general or specific public policy.
As explained in Supreme Court Bar Association (supra), the exercise of power under Article 142(1) of the Constitution of India being curative in nature, this Court would not ordinarily pass an order ignoring or disregarding a statutory provision governing the subject, except to balance the equities between conflicting claims of the litigating parties by ironing out creases in a ‘cause or matter’ before it. In this sense, this Court is not a forum of restricted jurisdiction when it decides and settles the dispute in a ‘cause or matter’. While the Supreme Court cannot supplant the substantive law by building a new edifice where none existed earlier, or by ignoring express substantive statutory law provisions, it is a problem-solver in the nebulous areas.
As long as ‘complete justice’ required by the ‘cause or matter’ is achieved without violating fundamental principles of general or specific public policy, the exercise of the power and discretion under Article 142(1) is valid and as per the Constitution of India. This is the reason why the power under Article 142(1) of the Constitution of India is undefined and uncatalogued, so as to ensure elasticity to mould relief to suit a given situation. The fact that the power is conferred only on the Supreme Court is an assurance that it will be used with due restraint and circumspection.