Article 142 of the Indian Constitution grants the Supreme Court the power to pass any order necessary for doing “complete justice” in any case or matter pending before it. This provision is often seen as a powerful tool in the hands of the judiciary to provide justice in situations where the law is inadequate or insufficient. However, the use of this provision has also been a subject of much debate, with some arguing that it undermines the principle of separation of powers and can lead to judicial overreach. In this blog, we will discuss the need for judicial restraint while exercising the powers granted under Article 142. The bare language of Article 142 is as follows: “ Enforcement of decrees and orders of Supreme Court and unless 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 orders 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
- 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 principle of separation of powers is a cornerstone of democracy, which ensures that no branch of the government becomes too powerful. The legislature makes laws, the executive implements them, and the judiciary interprets and applies them. However, in some cases, the law may not be able to provide a remedy for a particular situation. In such cases, the judiciary may have to step in and provide a solution using its inherent powers. Article 142 grants the Supreme Court the power to do just that. However, this power must be exercised with caution and restraint.
One of the main arguments against the use of Article 142 is that it can lead to judicial overreach. The Supreme Court is not meant to legislate or make policy decisions. Its role is to interpret and apply the law. When it uses Article 142 to pass orders that go beyond what is provided in the law, it can be seen as encroaching on the powers of the legislature and the executive. This can be particularly problematic when the orders passed under Article 142 have far-reaching implications that affect the rights and freedoms of citizens.
Another concern with the use of Article 142 is that it can undermine the rule of law. The rule of law requires that all actions of the government, including the judiciary, are subject to the law. When the Supreme Court passes orders under Article 142 that are not based on any legal provisions, it can be seen as arbitrary and unfair. This can erode public trust in the judiciary and the rule of law.
Therefore, it is essential that the Supreme Court exercises restraint while using the powers granted under Article 142. The court must ensure that its orders are based on established legal principles and are not arbitrary or unfair. It should also ensure that its orders do not encroach on the powers of the other branches of the government. This requires a careful balancing of the interests of justice with the principles of democracy and the rule of law.
In conclusion, Article 142 is a necessary provision that allows the Supreme Court to provide justice in situations where the law is inadequate or insufficient. However, its use must be tempered with caution and restraint. The Supreme Court must ensure that its orders are based on established legal principles and do not undermine the principles of democracy and the rule of law. By doing so, it can uphold its role as the guardian of the Constitution and the protector of the rights and freedoms of citizens.
Associate at Aggarwals & Asssociates, Mohali