Vice President Jagdeep Dhankhar yesterday (17th April) took a dig at the Supreme Court, accusing it of overstepping its constitutional powers. Dhankhar’s remarks came in the context of the controversial verdict delivered by the Supreme Court in The State of Tamil Nadu v The Governor of Tamil Nadu and Anr. In the case, a division bench of the Supreme Court, comprising Justices B Pardiwala and R Mahadevan, prescribed time limits to be followed by the President and the Governor while considering Bills in exercise of their powers under Articles 200 and 201 of the Constitution. Besides, the court made the President and the Governor answerable to it for failing to comply with the prescribed time limits, and allowed the state government to approach it to seek the issuance of the writ of mandamus against the President and the Governor.
The verdict is being widely criticised as an act of judicial overreach and an attempt by the judiciary to interfere with constitution-backed powers of the legislature and the executive, and thus a violation of the principle of separation of powers envisaged under Article 50 of the Constitution. Commenting on the verdict, VP Dhankhar questioned how a small bench of two judges could pass a judgment that effectively modified the constitutional provisions. Referring to Article 145(3), which mandates that the minimum number of judges for deciding on a substantial question of law should be five, Dhankhar said that the provision requires revision because at the time enactment of the Constitution, the Supreme Court had a total of 7 judges and 5 judges would have constituted majority. But now the number of judges in the Supreme Court has increased, and therefore the minimum number of judges required to decide on an important question of law should also increase proportionately.
Using strong words, VP Dhankhar said that Article 142 was being misused by the Supreme Court like a “nuclear missile” to override a democratic process. “Article 142 has become a nuclear missile against Democratic forces, available to the judiciary 24 x 7,” Dhankhar said.
What does Article 142 say?
Article 142 is a one of its kind provision in the Indian Constitution which confers vast discretionary powers on the Supreme Court. The contours of the Supreme Court’s power under this provision transcend the boundaries of procedural and substantive law. The provision empowers the Court to fill any gaps in the existing statutory provisions and pass any decree or order which it deems “necessary for doing complete justice” in any case pending before it. In addition to that, the provision also says that the Supreme Court has the power to punish for its contempt.
The extraordinary provision is intended to enable the Supreme Court to do justice in any matter that comes up before it when the existing legal framework appears inadequate. It empowers the Apex Court to assume quasi-legislative and quasi-executive roles in certain contexts if it finds it necessary for safeguarding the fundamental rights and upholding the constitutional values. Article 142, which was Article 118 in the draft Constitution, was inserted in the Constitution by the Constituent Assembly without holding a discussion and its interpretation was left to he discretion of the Supreme Court.
Instances when the Supreme Court invoked Article 142
The Supreme Court, on numerous occasions, has made use of its wide discretionary powers under Article 142 to quash proceedings, grant divorce, issue directions, and even approve settlements. Explaining the scope of the Apex Court’s power under Article 142, the Supreme Court in the Delhi Judicial Service Association case (1991) said that prohibitions or limitations contained in ordinary laws cannot restrict its constitutional power under Article 142. The Supreme Court reiterated in the Vinay Chandra Mishra case (1995) that its power under Article 142 was not limited by any statutory provision.
The Court recently invoked the provision in the Shilpa Sailesh case (2023), where, describing the ambit of its constitutional power under Article 142, it said that it could grant unilateral divorce in appropriate cases, and it can do so without being bound by personal laws and statutory requirements. In 2017, the Supreme Court banned the sale of liquor within 500 metres of a national highway using its discretionary power under Article 142. Similarly, in 2024, the Supreme Court invoked the same powers to set aside the 2024 Chandigarh Mayoral elections. The discretionary power was also used by the Supreme Court in the Union Carbide case (Bhopal Gas Tragedy case), where it ordered Union Carbide to pay $470 million as compensation to victims.
Power under Article 142 is not absolute
Even though the Supreme Court enjoys extraordinary powers under Article 142, they are not absolute. The powers are subject to constitutional limitations. In the Supreme Court Bar Association Case (1998), a Constitution bench of the Supreme Court outlined the scope of its discretionary power under Article 142 by noting that the provision could not supplant the existing substantive law applicable in the case. Similarly, in State of Karnataka v Umadevi (2006), the Supreme Court observed that it cannot grant any relief under Article 142, which would amount to perpetuating an illegality.
Last year, the Supreme Court laid down certain parameters for the exercise of power under Article 142 in High Court Bar Association, Allahabad v. the State of U.P. & Ors. (2024). The Court said that the powers under Article 142 can be exercised to do complete justice, but the Court shall not nullify any judicial orders passed in favour of other litigants in other jurisdictions. And, the Court shall respect a litigant’s substantive rights within its jurisdiction and preserve legal integrity. And most importantly, the Court shall not undermine the principles of natural justice.
The Supreme Court is bound by the Constitution and the principles of natural justice in exercising this discretionary power. The words “necessary for doing complete justice” themselves bear a torch for the court in this regard. The Court should be guided by the principles of reasonableness and necessity in invoking the said provision for doing “complete justice”. In exercising its unique discretionary powers under Article 142, the Court cannot act unjustly and arbitrarily. The extraordinary power has to be invoked sparingly and only in necessary cases. Adopting a balanced approach in exercising its powers under Article 142, the Court should ensure that the fundamental principles of justice and fairness are not transgressed. The use of this provision by the Supreme Court should not go against the spirit of the Constitution, which envisages a balance between the three organs of the state- the Executive, the legislature, and the judiciary.
