MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI

TERM PAPER TOWARDS FULFILMENT OF THE ASSESSMENT

IN THE SUBJECT OF ADMINISTRATIVE LAW-1

TITLE OF THE PROJECT

USE OF ARTICLE 142: A CRITICAL APPRECIATION

FINAL DRAFT

SUBMITTED TO: PROF. MILIND GAWAI SUBMITTED BY: SATYAM

(COURSE INSTRUCTOR) ROLL NO. : 2019098

B.A.,LL.B.(HONS.) FIFTH SEMESTER, THIRD YEAR

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TABLE OF CONTENTS

INTRODUCTION 3

DEFINITION AND SCOPE OF ARTICLE 142 5

JUDICIAL INTERPRETATION OF ARTICLE 142 9

SIGNIFICANCE OF ARTICLE 142: CRITICAL ANALYSIS 12

CONCLUSION 14

BIBLIOGRAPHY 15
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INTRODUCTION

Article 142 is constructed on the same concept as the preceding term and defines enforcement of
the Hon'ble Supreme Court's decisions and orders in the exercise of its jurisdiction as required
for complete justice.

The Indian judiciary's goal, as stated in the Indian Constitution of 1950, is to guarantee that
every person of the country receives "full justice." The Constitution of India, 1950, allows the
Hon'ble Supreme Court, under Article 142, the ability to issue any decision to carry out "full
justice." In recent years, the Hon'ble Supreme Court has used its jurisdiction under Article 142 to
arbitrate on the matter and offer citizens with "Complete Justice.".However, because there are no
specific guidelines or rules available or provided by law that explain when, where, and under
what circumstances the Hon'ble Apex Court can invoke the said article i.e. article 142 to do
complete justice, the power under Article 142 to adjudicate "complete justice" does not ensure
abuse prevention.1

The purpose of this study is to examine and comprehend the notion established by Article 142 of
the Indian Constitution of 1950. The paper will discuss the judicial trend in respect to Article
142, as well as the authorities' study in order to come to a logical and sensible conclusion about
the merits and limits of the article. The researcher will use a secondary data approach, which
entails analysing existing databases in order to comprehend the topic and draw logical and
coherent conclusions.

The exceptional powers granted by the aforementioned article were created to fill the gap
between weak legislation and the goals of justice. The Hon'ble Supreme Court can do this by
issuing an enforceable decree or order. The article was originally construed in the case of Prem
Chand Garg v. Excise Commissioner, U.P.2, in which the court stated that, while the powers are
broad, they are ancillary powers that can be exercised when they are not expressly in
contradiction with substantive laws.

1Mahmud Hasan v. State of U.P. (1997) 3 SCC 138.; M.S. Ablawat. Stats of Haryana (2000) 1 SCC 278; New India
Insurance Company v. Darshana Devi (2008) 7 SCC 416; British Physical Lab. India Ltd. v. State of Karnataka
(1998) 1 SCC 170; Kewal Chand v. S.K. Sen (2001) 6 SCC 512.
2Prem Chand Garg v. Excise Commissioner, U.P.,AIR 1963 SC 996
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The study is significant in the academic community because it examines one of the most
important parts of the Indian Constitution, Article 142. As stated in the introduction, the article
gives the Supreme Court the authority to issue a decree or order in order to secure "full justice."
However, in recent years, Article 142 has become a huge element of the Supreme Court, which
has been cited multiple times to determine cases and do "complete justice." 3 Furthermore, under
the abovementioned clause, there are no norms or procedures in place to check and balance
authority. As a result, the article is crucial since it will analyse the available database in order to
draw logical and sensible conclusions in order to verify that the provisions adhere to their
objectives and are not abused.

The goal of this study is to comprehend the extent and importance of Article 142 of the Indian
Constitution of 1950. It will also look at the article's limitations and the changes that are needed
to make it more effective and efficient. The goal will be met by examining the article, the
judicial tendency, and the authorities' criticisms. The author attempts to draw logical inferences
in order to make the provisions more efficient in order to fulfil the author's goal, while avoiding
the traps of arbitrability and misuse.

DEFINITION AND SCOPE OF ARTICLE 142

The Constitution of India, 1950 under Article 142 grants the Apex Court i.e. the Supreme Court
of India an absolute power to pass a decree or make such order as is necessary for doing
complete justice.4 The Article reads as

“142. 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

3Union of India v. C. Damani and Co., 1980 Supp SCC 707; Chandra Bansi Singh v. State of Bibar (1984) 4 SCC
316.
4 King Stubb & Kasiva, Article 142 Constitution of India- is it sword of “complete justice”?, available at
https://www.lexology.com/library/detail.aspx?g=ba92810f-7711-42d8-b8ed-1288af033b75.
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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.”

After a keen perusal of the bare text under Article 142 of the Constitution of India it can be
deduced that the Constitution of India, 1950 has bestowed the Hon’ble Supreme Court a
powerful sword with a purpose to ensure complete justice in any case or matter. 5 Through this
Article the Supreme Court can take cognizance of any matter if the Court perceives that the
adjudication was not done to meet the end of justice. Thus, at that juncture the Court can take
cognizance and pass any decree or order as to meet the end of justice.

The author after analyzing various judgments, reached a conclusion that the Supreme Court
while elucidating on the power under Article 142 of the Constitution of India, 1950 stated that it
is necessary to intervene in complex cases related to the environment, history, and religion and
the current laws were insufficient for the current scenario. Despite their substantive similarities,
the two domains of the judiciary and the legislature remain separate and distinct. 6

Unlike the legislature, the Supreme Court's authority is extremely contextual; the context is to
"do full justice in any cause or matter pending before it" in the process of administering justice in
accordance with the statute in effect To put it another way, this power cannot be used to erect a
new edifice where none previously existed, by ignoring express legislative provisions dealing
with a subject and thereby doing something indirectly that cannot be accomplished explicitly'.

The Supreme Court, on the other hand, has 'plenary power'—power that is total, absolute, and
unqualified in its own demarcated sphere of doing 'complete justice.' Article 142's exercise of
power cannot be limited or conditioned by any legislative provision because it is a feature of the
5Dr. Justice B.S. Chauchan, Courts and its endavour to do complete justice (2017), available at
http://www.nja.nic.in/17%20Complete%20Justice.pdf.
6M.C. Mebta v. Kamal Nath (2000) 6 SCC 213.
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Constitution. ' In reality, the scope of this discretionary power is as broad as is necessary to deal
with the countless circumstances that human imagination has generated for the purpose of "doing
full justice."

Nevertheless, it is seen often that the Hon’ble Apex Court in exercising it powers under Article
142 of the Constitution of India, 1950 they cannot ignore any substantive statutory provision
while dealing with the subject, nor can we afford to press such power into service where it may
amount to contravention of specific provision of a statue. Thus, in other words the order, decree,
or direction given by the Hon’ble Supreme Court should not be inconsistent with, repugnant to,
or in violation of, specific provisions of a statue.7

The national press recently reported on a Supreme Court decision in the special leave petition
case Devinder Singh Narula v. Meenakshi Nagia 8, in which the apex court waived the statutory
period of six months' waiting and granted a decree of divorce by mutual consent under section
13-B of the Hindu Marriage Act. The ramifications of this decision have spawned at least two
relevant public-interest questions with legal and constitutional implications:

a. If the Supreme Court could negate, nullify, or disregard the express provision of the
statutory six-month wait period, thus contravening and counteracting the particular
provision of section 13-B(2) of the Hindu Marriage Act, 1955, in exercising powers
under Article 142 of the Constitution.
b. If the Supreme Court's declaration of 'the statute' under article 141 could be taken as the
judgment of a six-month waiver in the exercise of powers under article 142 of the
Constitution, and, thus, enforceable by all the courts within the territory of India."

By closely reviewing the judgment in Devinder Singh Narula, the apex court's answer to these
listed counts can be deduced.

7 Virendra Kumar, "Varying judicial responses to dissolution of marriage by mutual consent under the Hindu
Marriage Act, of 1955: A crisis of constitutional culture" 52 JILI 267-86 (2010).
8 Devinder Singh Narula v. Meenakshi Nagia, Civil Appeal No. 5946 of 2012.
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The first question, whether the Supreme Court can circumvent the explicit and categorical
statutory prohibition as given under section 13-B (2) of the Hindu Marriage Act, 1955 9, in the
exercise of its power under article 142, is judicially disputable" and thus appears highly
anomalous and ambiguous. On this point, one should take note of at least the following differing
versions of the Supreme Court's various benches, each with its own legal and constitutional
consequences.

In the first case, Anjana Kishore v. Puneet Kishore was decided by a three-judge Supreme Court
bench. In this case, the Supreme Court directed the parties to file a joint petition with the family
court under section 13-B of the Act for the grant of a decree of divorce by mutual consent, along
with a copy of the agreement reached between the parties, while considering the transfer petition.
The Supreme Court's additional stipulation in this regard was:

“An application for curtailment of time for grant of divorce shall also be filed along with
the joint petition. On such application being moved the Family Court may, dispensing
with the need of waiting for six months, which is required otherwise by sub-section (2) of
Section 13-B of the Hindu Marriage Act, 1955, pass final order on the petition within
such time as it may deem fit.”10

The Supreme Court issued this directive after invoking its extraordinary power under Article 142
of the Constitution. The apex court was convinced that such a direction was appropriate "to do
full justice" in the case by "looking at the facts and circumstances of the case arising from the
parties' pleadings and revealed during the course of hearing.”

However, because there is no revealing analysis of how the fact matrix prompted the bench to
invoke its extraordinary powers 'to do complete justice' between the parties, nor an articulate
conclusion of the complete breakdown of their marriage necessitating the immediate dissolution
of their marriage by overriding the specific statutory stipulation in section 13-B, it is worth

9 Section 13B, Hindu Marriage Act, 1955.

10 Supra at Note 9.
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noting that in this case (2). It's better described as a "closed case" with no procedural or
compelling precedent meaning.11

JUDICIAL INTERPRETATION OF ARTICLE 142

The section of the paper will discuss the judicial trend of Article 142 of the Constitution of India,
1950. The Hon’ble Supreme Court has invoked Article 142 in catena of judgments. Some of
them are analysed herein below:

1. THE AYODHYA CASE12

Under the Acquisition of Some Area at Ayodhya Act, 1993, the Supreme Court recently cited
this article in a unanimous judgment in the Ayodhya case, in which the bench handed over the
disputed land of 2.77 acres to a trust to be established by the central government within three
months for the construction of a temple. In Ayodhya, another 5 acres of land has been set aside
for the construction of a mosque.

When the court decided that ignoring the Sunni Waqf Board's argument because they witnessed
the unlawful demolition of their mosque in 1992 would be unfair to the Muslim groups, the case
took a turn. The Supreme Court ordered the Central Government to grant a five-acre plot of land
in a different location within the acquisition district. The Nirmohi Akhada's claims to the
disputed land had previously been rejected by the Supreme Court. By virtue of Article 142, the

11Hariharan, Article 142 to Rescue, Legal Service India, available at

http://www.legalserviceindia.com/legal/article-2431-article-142-to-the.
12M. Siddiq v. Mahant Suresh Das, (2019) SCCOnline 1440.
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Central Government was once again guided to include the Nirmohi Akhada in a body that would
be in charge of land management.13

The Hon’ble in the above stated case interpreted Article 142 of the Constitution of India, 1950
and stated that “The term ‘is requisite for doing complete justice' has a broad amplitude and
incorporates a power of equity which is used when the strict application of the law is insufficient
to achieve a just outcome,” the Hon'ble Supreme Court said in the case. The demands of justice
necessitate paying careful attention not just too constructive legislation, but also to its silences, in
order to find an equal and just solution within its cracks. The legal profession is based on
applying broadly worded laws to the facts of a case before the courts.

2. UNION CARBIDE CASE14

Thousands of people were impacted by the Bhopal Gas Tragedy when the Supreme Court
invoked Article 142 in the notorious Union Carbide case in 1989. Although paying victims $470
million in compensation, the Hon'ble Supreme Court noted that in order to do "full justice," it
might also circumvent Parliament's rules. It was at this point that the court realized it needed to
depart from current law in order to provide relief to those who had been affected by the Bhopal
gas tragedy. The court ordered that the victims be compensated and elevated itself above
Parliamentary legislation, claiming that certain restrictions and limits are ipso facto provisions
highlighted under Article 142. There was no clear law that clarified how the Supreme Court used
Article 142 to achieve full justice.15

The land mark judgment in Supreme Court Bar Association v. Union of India 16, this assertion
was toned down. This does not give the court the authority to build a new structure while
disregarding the litigant's substantive rights; such powers are curative in nature. This legislation
is thought to fill in gaps in the legal system. The time has come to reflect on the Supreme Court's
use of Article 142 as an autonomous and ultimate source of control that must be governed by
strict guidelines.

13 Id.
14 Union Carbide Corporation v. Union of India, 1989 S.C.C. (2) 540.
15 Id.
16Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409.
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3. MANIPUR SPEAKER CASE

The Hon’ble Court in the landmark judgment of Keisham Meghachandra Singh v. Hon’ble
speaker, Manipur Legislative Assembly interpreted the applicability of Article 142. The brief
facts of the case are, Mr. Shyamkumar Singh, a Congress Party candidate, was duly elected.
When the results were announced, Mr. Singh approached the Governor of the state with a group
of BJP representatives to form a BJP-led government, and he was appointed as the BJP's
Minister. There were about 13 disqualification petitions against Mr. Singh pending before the
Speaker, according to the investigation. Even after granting the Speaker enough time to
investigate the issues of disqualifications, he failed to make a decision within the time frame
allocated.

Mr. Shyamkumar Singh, a Manipur BJP MLA and Minister of Forest and Environment, was
barred from joining the State Assembly and his role as Minister was terminated by the Supreme
Court. By exercising the Court's authority under Article 142 of the Indian Constitution, Justice
Nariman and Justice Bhatt issued the order. There had been two big guidelines passed that were
extremely important. To begin, the court will set a deadline for the Speaker to reject the petitions
for disqualification.18

Second, it called for a constitutional amendment to remove the Speaker's authority over
disqualification requests, as well as a challenge to Parliament to find an alternative mechanism
for this reason. However, the latter proposal, like the existing collegium method for nominating
our Indian judiciary, could make the system opaque. The foundation of democracy, federal
sovereignty, will be shattered as the Centre will have a clear say in the selection of the Speaker.

17 Keisham Meghachandra Singh v. Hon'ble Speaker, Manipur Legislative Assembly, AIROnline 2020 S.C. 54.
18 Id.
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SIGNIFICANCE OF ARTICLE 142: CRITICAL ANALYSIS

Justice is a philosophy that cannot be divided. The sacred obligation of doing justice to its people
is demanded of the Supreme Court, as the protector of its citizens' rights. The question arises as
to why, if the Judiciary is obligated to provide justice, there is a need to draft a separate Article
for an unknown authority to enact some decree or order to provide full justice. This Article
contains no intrinsic safety valve that prevents the court from exercising this authority. The
response to the question is that this Article is used to address issues that cannot be effectively
and efficiently addressed by our country's current provisions.19

The case must meet the criterion of being extraordinary in nature in order to receive relief under
this Article. This isn't to say that justice isn't being served, just that it isn't being served in the
way that Article 142 specifies. When the court senses a need for justice, it will reach out to
certify that justice is being served by such plenary authority. One of the most well-known issues
is the implementation of Article 142 in the case of Taj Trapezium.20

Due to environmental pollution, the Supreme Court used Article 142 to impose extreme
restrictions in the Taj Trapezium zone, causing the iconic heritage monument, The Taj Mahal, to
deteriorate. A strong distinction should be made between the ratio decidendi and the directions
given under Article 142. While taking Article 210 from the Government of India Act, 1935, a
minor change was made, and as a result, the Constituent Assembly finalized Article 118, which
is now Article 142 of the Indian Constitution.

Since there have been no significant constitutional debates about this Article, it seems that the
founding fathers intended the Supreme Court to have certain special powers based on the facts
and circumstances of the case. In this regard, the Supreme Court's approach can be divided into
three phases: limited, harmonious, and broad interpretations as it sees fit.

The essence of this power has been succinctly stated: The plenary powers of this Court under
Article 142 of the Constitution are inherent in the Court and are complementary to those powers
imposed on the Court directly by different statutes, though they are not restricted by those

19 Supra at Note 4.
20 M.C. Mehta v. Union of India, (1987) A.I.R. 1086
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statutes. These forces have a wide range of amplitude and are supplementary powers. Finally,
before any conclusion is reached, the evolution of judicial activism in our country as a form of
justification for overriding legislative requirements has been continuously scrutinized by the
courts.21

The Supreme Court has invoked Article 142 in a number of significant cases, but the list does not
end there. There are a number of decisions in the queue. When we look at these various
decisions, we can see that the Supreme Court attempted to define the term "full justice," but the
definition remains ambiguous. It is said in some decisions that it can be used when the rule of
statutes is silent.22

When we look at the cases where Article 142 has been used, it seems that it is being used to fill a
legal gap. When we look at the decision on the selling of liquor along national and state
highways, we see that it has impacted a lot of hotels, pubs, restaurants, and liquor stores,
resulting in thousands of people losing their jobs. The apex court also levied a large penalty on
the coal block owner/allottees in the coal block case without hearing allottees. It demonstrates
that the Supreme Court violated an individual's constitutional rights when providing "full
justice."

CONCLUSION

The Supreme Court has a peculiar and exceptional power under Article 142 of the Indian
Constitution to issue an order or declaration to provide full justice to litigants who have been
through a slew of proceedings contaminated with tangible illegality or injustice. This clause, as
intended by the Constitution's framers, is critical for those who are concerned about delays in
receiving required relief due to the rotten state of the law's scope and the judicial system's
disadvantageous role.

21Kihoto Hollohon v. Zachillhu , A.I.R. 1993 S.C. 412

22 Id.
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It has the authority to issue any order it sees fit based on the facts and circumstances of the case.
It must, however, not only be compliant with the Constitution's constitutional rights, but also
with the substantive provisions of applicable statutes. Any order issued by the Court should not
be construed as supplanting substantive laws. Invoking Article 142 requires judicial restraint, and
exercising the power solely on the basis of sympathy should not be done, since this great plenary
power is indeed a discretionary power that should not be exercised as part of the Court's routine
exercise of jurisdiction.

The right understanding of Article 142 was invoked in order to provide full justice on a broad
scale to various segments of the population. However, the Apex Court's decisions have caused a
great deal of ambiguity, and there is no clear guidance on how to invoke Article 142. The
Supreme Court should issue a strict guidance that justifies the use of Article 142 and ensures that
it is a "complete justice" for society without jeopardizing citizens' rights. In his article on the
subject, India's current Attorney General, Mr. K.K. Venugopal, quoted Justice Benjamin
Cardozo as saying that a judge “is not a knight-errant wandering at will in search of his own
ideal.”

The powers under Article 142 of the Constitution of India, 1950 are meant to be exercised in
order to further the needs of justice, there must be compelling reasons for exercising this
discretionary jurisdiction. This power of plenitude should be used wisely to achieve the ends of
justice, to protect against injustice that is obvious to the Court's eyes, and to ensure the Supreme
Court's role as the saviour of justice in the modern world.

BIBLIOGRAPHY

A. CASES
1. Mahmud Hasan v. State of U.P. (1997) 3 SCC 138.; M.S. Ablawat. Stats of Haryana
(2000) 1 SCC 278; New India Insurance Company v. Darshana Devi (2008) 7 SCC 416;
British Physical Lab. India Ltd. v. State of Karnataka (1998) 1 SCC 170; Kewal Chand v.
S.K. Sen (2001) 6 SCC 512.
2. Prem Chand Garg v. Excise Commissioner, U.P., MANU/SC/0082/1962.
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3. Union of India v. C. Damani and Co., 1980 Supp SCC 707; Chandra Bansi Singh v. State
of Bibar (1984) 4 SCC 316.
4. King Stubb & Kasiva, Article 142 Constitution of India- is it sword of “complete
justice”?, available at https://www.lexology.com/library/detail.aspx?g=ba92810f-7711-
42d8-b8ed-1288af033b75.
5. M.C. Mebta v. Kamal Nath (2000) 6 SCC 213.
6. Devinder Singh Narula v. Meenakshi Nagia, Civil Appeal No. 5946 of 2012.
7. Union Carbide Corporation v. Union of India, 1989 S.C.C. (2) 540.
8. M. Siddiq v. Mahant Suresh Das, (2019) SCCOnline 1440.
9. Supreme Court Bar Association v. Union of India, (1998) 4 SCC 409.
10. Keisham Meghachandra Singh v. Hon'ble Speaker, Manipur Legislative Assembly,
AIROnline 2020 S.C. 54.
11. M.C. Mehta v. Union of India, (1987) A.I.R. 1086.
12. Kihoto Hollohan v. Zachillhu , A.I.R. 1993 S.C. 412.

B. ARTICLES
1. Dr. Justice B.S. Chauchan, Courts and its endavour to do complete justice (2017),
available at http://www.nja.nic.in/17%20Complete%20Justice.pdf.
2. Virendra Kumar, "Varying judicial responses to dissolution of marriage by mutual
consent under the Hindu Marriage Act, of 1955: A crisis of constitutional culture" 52 JILI
267-86 (2010).
3. Hariharan, Article 142 to Rescue, Legal Service India, available at
http://www.legalserviceindia.com/legal/article-2431-article-142-to-the.

C. LEGISLATIONS
1. Section 13B, Hindu Marriage Act, 1955.
2. Article 142, Constitution of India, 1950.

D. BOOKS
1. M.P. Jain (1962). Indian constitutional law. Bombay, N.M. Tripathi.
2. DD Basu, 3d ed. (Calcutta: S. C. Sarkar & Sons, Ltd
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