Power glut in the Supreme Court

Excessive use of a little-known provision is upsetting Constitutional balance

If the founding fathers could revisit the Constitution, one of the many surprises in store for them would be the development of an article which they adopted without a debate. It has grown so powerful that the court has interfered with economy as in the recent order on liquor shops on highways and passed social legislation like the Vishaka judgment protecting women at workplace.

This Article 142 of the Constitution empowers the Supreme Court to pass any order to do “complete justice”. The provision was hardly used in the first four decades, except to correct procedural defects. The first recorded use was in the Nanavati case (1961), in which a naval officer convicted of murder was granted suspension of sentence pending appeal. The official Supreme Court Reports (SCR) did not report any use of the provision for a long time before or after it. It was understood by the draftsmen and judges that the power to do “complete justice” was to be exercised only in procedural matters. 

However, when the Supreme Court expanded the breadth of fundamental rights after the Emergency, public interest litigation was crafted to wipe every tear from every eye. It opened its door to tortured prisoners, environmentalists and meddlesome politicos. The cup of affirmative action overflowed into Article 142 and it also became a powerful tool in the hands of the judges. It was in the 1980s that the urge to do "complete justice" bloomed fully. In 1984, the court set guidelines for adoption of orphans by foreigners. In 1997, the court drafted the Vishaka judgment. Around the same time, the court directed a temple management to maintain the place of worship out of its properties. The court took the Article142 route to set guidelines on the implementation of the Dowry Prohibition Act.

The exercise of this power has become so common that the court has passed orders in commercial matters and road accident appeals. The Sahara case, in which its boss Subrata Roy was jailed, rolls on under Article 142 orders even after three years. The court has ordered reinstatement of teachers and granted admission to an eligible candidate to medical college. It has granted divorce by mutual consent short-circuiting ordinary procedures. Since so many of the court orders are forgotten soon after ‘breaking news’, few would remember the fiat that hospitals which import equipment with customs concessions must publish the names of the poor persons it has treated every month. The power under Article 142 now hangs like “a brooding omnipresence in the sky” (Oliver Wendell Holmes’ phrase) to do justice in any cause.

The exercise of this power had divided constitution benches. In earlier cases, the court had maintained that the power to attain complete justice should not step on other statutory provisions. But in later cases, especially in the Union Carbide gas leak case, the court took the view that its extraordinary power can override ordinary laws. Judgments since then have not been very consistent. The words “complete justice” is delightfully vague and undefinable, and what matters is the discretion and inclination of judges to invoke them according to the facts of the case before them. Naturally, it tends to run unbridled sometimes.

The issue came to the fore early this month when the court barred liquor vends along the highways all over the country. Critics, especially the lawmakers, pointed out this as one more instance of judicial overreach. Orders regarding singing of national anthem in cinemas to instill ‘constitutional patriotism’ added another discordant note to the Constitution.

It is not that the court is lacking extraordinary, inherent powers to attain justice. Its writ jurisdiction is widest in any democratic constitution. So it is not necessary to expand a once obscure provision to further arm the judiciary. It was the taunt against British parliament that "it can do everything but make a woman a man and a man a woman". In the Indian context the Supreme Court is being transmogrified into a divinity which is endowed with several arms, each carrying different weapons, all for apparent noble causes.