Subsection 1 of Article 142 (“Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.”) says “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.”
The Scope of Article 142
- Essentially, this provision of the Constitution gives the country’s top court wide powers to do “complete justice” in a case.
- The Supreme Court draws sweeping authority from Article 142 to exercise executive and legislative responsibilities in order to achieve complete justice.
- Article 142 is complemented by Articles 32 (Right to constitutional remedies), Article 141 (The Supreme Court’s decision will be binding on all courts within India), and Article 136 in this quest (Special Leave petition).
- Judicial activism is a word used to describe this. It has frequently overruled legislation passed by Parliament in order to provide “full justice,” as in the following incidents.
- When the government and legislature fail to defend people’ rights and enforce constitutional ideals, the judiciary has exercised its powers Article 142.
- As the constitutional protector, Article 142 gives it the authority to fill statutory gaps.
- It also establishes a system of checks and balances for the government’s other branches.
- For instance: The Supreme Court established norms to safeguard a woman from sexual harassment at work in the case of Vishakha v State of Rajasthan.
- The Supreme Court was acclaimed in its early years by the general public and attorneys alike for its attempts to deliver total justice to the underprivileged groups of society or to safeguard the environment.
- For example, the Taj Mahal was cleansed, and countless undertrials received justice.
- The Supreme Court, in the Union Carbide case involving the victims of the Bhopal gas catastrophe, elevated itself above the laws enacted by Parliament or state legislatures, declaring that, in order to provide total justice, it might even ignore Parliament’s legislation.
- In the Bandhua Mukti Morcha Case, the Supreme Court of India handed down a significant decision on India’s bonded labour system.
- In the case of Olga Tellis, the right to livelihood was held to be an integral aspect of the right to life.
- The Supreme Court, however, declared in Supreme Court Bar Association v. Union of India that Article 142 could not be used to replace existing legislation, but rather to augment it.
- The Supreme Court should consider whether the use of Article 142 as a source of autonomous power should be governed by rigorous restrictions.
- Another possibility is to submit all cases utilising Article 142 to a Constitution Bench of at least five judges, so that this exercise of discretion is the result of five separate judicial minds working on issues with such broad implications for people’s lives.
- After a period of six months or so from the date on which the court invokes Article 142, the government shall issue a white paper examining both the positive and negative implications of the verdict.
As a result, a balance must be struck between the three pillars of government without intruding on each other’s domain. The powers granted by Article 142 are curative in nature and cannot be understood as authorising the court to act as an executive or legislative. The Supreme Court itself declared in the Supreme Court of India vs. Union of India case that the authority to perform perfect justice under Article 142 is a corrective power that favours equity above law, but it cannot be used to undermine substantive rights.
How to structure
- Give a brief intro about Article 142
- Explain in detail about the article
- Examine the scope of the article in enabling the courts judicial activism/over reach. Since the question is leaning towards positives of it, write the merits
- Conclude with the recent ruling on Perarivalan’s case