SUPREME COURT
& ARTICLE 142
AN INDIAN
PERSPECTIVE
SARASIJ
MAJUMDER
Recently, the Supreme Court of India exercised its powers
under Article 142 of the Constitution to grant permanent commission to a woman
Army officer, Lt. Col.
The appellant, a commissioned officer in the Army Dental
Corps in 2008, had been denied the third opportunity to apply for permanent
commission. I couldn’t trace the reasons for such decision made by Army.
Article 142 of the Indian Constitution grants Supreme Court
of India a HUMONGOUS POWER to pass any
order it deems necessary to achieve complete justice in a matter, as per their
opinion.
The Supreme Court has very broad, undefined, and inherent powers under Article 142, and the
court itself determines what it means to achieve complete justice. The
Constituent Assembly adopted the draft of Article 142 & Article 118, without debate, leaving the
court to define its scope. To me, it reflects a shabby job done by the then Constituent Committee.
The
Supreme Court should use Article 142 with caution and responsibility, while
protecting the values of justice and adhering to the limits of its
jurisdiction.
As per records available, there seems to be a very large number of cases,
where SC has taken the support of Article 142, to decide on the ‘APPEAL’. This
indicates either limitation of ‘available laws’ to handle the cases, or some
shortcomings of Judiciary, or may be
both! As a legally initiated person—this is my observation, without any Malafide.
REF:
https://indiankanoon.org/search/?formInput=article%20142&pagenum=11
I produce below the article, as could be collected by me
from site:
Constitution Article:
Article
142 in Constitution of India: [Cites 3, Cited by 14698]
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.
(2)Subject
to the provisions of any law made in this behalf by Parliament, 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 the investigation or
punishment of any contempt of itself.
THE
INCOMPLETENESS OF THE ARTICLE:-
- Subjectivity in the definition: While
using article 142, court has wide discretion, and this allows the
possibility of its arbitrary exercise or misuse due to the absence of a
standard definition for the term “complete justice”.
- Defining “complete justice” is a
subjective exercise that differs in its interpretation from case to case,
and person to person. I will narrate a story at the last.
- Blurs the Lines Between Branches: Judicial
activism may sometimes blur boundaries between judiciary and legislature,
causing confusion in roles, leading to jurisdictional conflicts.
- S.R. Bommai vs. Union of India (1994): The
SC's intervention in Karnataka's political crisis with a floor test
blurred judiciary-executive lines, sparking concerns of overreach.
- Unaccountability: Article 142 grants the
judiciary, unlike the executive and legislative branches, immunity from
easy scrutiny or challenge for its decisions.
- The power has also been criticized on
grounds of the separation of powers doctrine.
- Lack of Consistency: Inconsistent legal
rulings under Article 142 complicate litigation planning and operations
for individuals and businessmen.
DISCUSSION:--
1.0 I
think, this article compromised ‘LEGISLATION’- which derives power from
‘ELECTORATE’, DIRECTLY, and in case of Conflict with Judiciary, Legislation
shall prevail upon.
2.0 ‘JUDICIARY’ is a body not sanctified
by process of any ‘Election’. ‘Collegium’ is not a ‘DEMOCRATIC’ process, and bypassed the ambit of elected representatives.
3.0 Collegium selected Judiciary should
not have any power to override ‘Legislation’.
4.0 Without going into the ‘MERRIT’ of
the case—I request GOI to review Article 142, and all such articles in
constitution which made Judiciary more
powerful over Legislation, particularly, when the ‘DECREE’ can’t be challenged.
5.0 COLLEGIUM system also shall be
replaced by a more Transparent, and Legislation Compliant system.
6.0 ‘JUDICIARY’ shall not be a pillar of
autocracy—armed with constitutional shortcomings, or ambiguities.
7.0 Also—till somebody is in
‘UNIFORM’—he/she should abide by ‘SERVICE RULES’—interpretations
notwithstanding. Otherwise, this type of JUDICIAL DECISIONS will compromise the
discipline needed in ‘ARMED FORCES’ to face the ‘BULLET’—which no other
profession is required to do.
WAY FORWARD &ADDRESSING
ARBITRARINESS:
1.
Judges should ensure that decisions made under
Article 142 are based on relevant facts and considerations, avoiding
arbitrary inference, assumptions, and use of power. The decisions shall be at
least ‘Evidence Centric’, in absence of
specific evidence.
2.
While Article 142 provides a flexible approach
to remedy shortcomings in legislation, it should not be applied unless as last resort.
3.
Defining ‘complete justice’: The ambiguity
of the term ‘complete justice’ should not be exploited to justify arbitrary
decisions.
4.
Clear guidelines or principles can help mitigate
misuse of power under the guise of achieving ‘complete justice’.
5.
Establishing a regulatory framework: To
prevent misuse of Article 142 decisions should be subject to scrutiny and
accountability, ensuring that all relevant parties are heard before invoking
Article 142.
6.
Referral to Constitution Bench: Referral of
all cases invoking Article 142 to a Constitution Bench. It shall be headed by
Law Minister, and five(5) members
consisting of reputed retired Judges/ Constitution Experts, Speaker and
Solicitor General.
THE
STORY:-
Once a decision was to be taken,
who is more prudent for ‘Heir to the Throne’ of Hastinapur—Duryodhana, or
Yudhistir.
A
Court was established, and four persons were brought—a Brahmin, a
Kshatriya, a Vaishya, and a KIRAT. All were accused of murder.
‘D’ was given the first chance to
deliver judgement. He delivered it in a
second- “All are murderers, and capital punishment is the right justice for
all. Mount them on Tridents, and leave unto death”.
Now Vidur asked ‘Yudhishthir’—Kumar,
now you delver your Judgements.
He carefully heard the reasons of
the Murder, questioned the Culprits, Kotwal, and the relatives of the deceased,
and proposed as follows:
1.0 Brahmin
is ‘Varna Shrestha’—knowledgeable. He must have controlled his anger, which he
failed. He deserves Capital Punishment.
2.0 Kshatriya’s
profession allows him to kill the enemy. His education is incomplete, as in
this case, it was a mis-judgement. He should be ‘imprisoned’ , educated, warned,
and then released.
3.0 The
Vaishya wanted to protect his wealth, but could have done that without killing
the THIEF. He also need more education,
shall be ‘imprisoned’, educated,
and then released.
4.0 ‘KIRAT’
is lowest in the ‘Varna’ and uneducated, live in forests and survive by killing
animals. He should be educated that he can kill animal for food only—but can’t
kill HUMAN. He need counselling only.
Then he should be set free.
I leave it to the readers to
decide—whether our Sanatani approach was more humane, yet delivers ‘Justice’ or
not.
Shall we not review our ancient
‘NAYASHASTRA’ , and adopt the relevant for closing the GAPS of Western Jurisprudence??
Disclaimer:- This is a non-commercial post. The content is shared only for information. It shall not be construed as a comment either on JUDICIARY, or Judgements delivered.
References:-
1.0 As
cited above in the text.
2.0 https://visionias.in/current-affairs/monthly-magazine/2024-03-15/polity-and-governance/article-142
3.0 Constitution
of India.
4.0 MAHABHARATA.
5.0 Image:
Google.
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