What is the scope of the power

conferred by Article 142 of the

Constitution?
Introduction..................................................................................................................................1
Understanding Article 142 of the Constitution.........................................................................1
Scope of Power under Article 142..............................................................................................2
Landmark Case Laws..................................................................................................................2
National Legal Services Authority v. Union of India (2014).....................................................3
Navtej Singh Johar v. Union of India (2018)............................................................................4
The Impact of Article 142 on Judicial Decision-Making...........................................................6
Conclusion...................................................................................................................................6

Introduction

Article 142 of the Constitution of India is a unique provision that empowers the Supreme Court
to pass any decree or order necessary for doing complete justice in any cause or matter
pending before it. This article gives the Supreme Court wide discretion to mould the relief
according to the facts and circumstances of each case and to ensure that justice is not defeated
by technicalities or procedural hurdles. The article also enables the Supreme Court to enforce
its decrees and orders throughout the territory of India and to punish any contempt of itself.

Understanding Article 142 of the Constitution

The origin of Article 142 can be traced back to Section 205 of the Government of India Act,
1935, which gave similar powers to the Federal Court. The Constituent Assembly debated on
whether to retain this provision in the new Constitution and decided to do so with some
modifications. The main objective behind Article 142 was to vest the Supreme Court with a
plenary power to do complete justice between parties without being fettered by any statutory
limitations or restrictions.

Scope of Power under Article 142

The scope of power conferred by Article 142 is very broad and flexible. The Supreme Court has
invoked this power in various kinds of cases involving constitutional, civil, criminal,
administrative, environmental, human rights, and other matters. The Supreme Court has used
this power to grant interim relief, issue directions, fill up legislative gaps, override statutory
provisions, quash criminal proceedings, transfer cases, appoint commissions, award
compensation, grant pardon, restore status quo ante, etc.

However, the power under Article 142 is not unlimited or arbitrary. It is subject to certain
principles and limitations. Some of them are:

● The power under Article 142 can only be exercised in cases where there is a manifest
injustice or violation of fundamental rights or natural justice.
● The power under Article 142 cannot be used to create new substantive rights or liabilities
that are not recognised by law.
● The power under Article 142 cannot be used to bypass or ignore the statutory scheme or
procedure established by law.
● The power under Article 142 cannot be used to contravene or violate any express
provision of the Constitution or any other law.
● The power under Article 142 cannot be used to encroach upon the jurisdiction or
authority of other courts or tribunals.
● The power under Article 142 cannot be used to legislate on matters falling within the
domain of Parliament or State Legislatures.
● The power under Article 142 must be exercised with caution and restraint and only in
exceptional and extraordinary circumstances.
● The power under Article 142 must be exercised with due regard to the principles of
equity, good conscience and public interest.

Landmark Case Laws

The Supreme Court has delivered several landmark judgments invoking its power under Article
142. Some of them are:

National Legal Services Authority v. Union of India (2014)

Facts:

Petitioner's Plea for Gender Identity Recognition

The petitioner, Laxmi Narayan Tripathy, a hijra, filed a petition seeking legal recognition of her
gender identity as female, challenging the male gender assigned to her at birth. She argued that
the non-recognition of her gender identity violated her fundamental rights guaranteed under
Articles 14 and 21 of the Constitution of India. Additionally, the petitioner sought legal
recognition of the hijra community as a third gender, advocating for their inclusion under all legal
and constitutional protections.

Discrimination Faced by the Transgender Community

The petitioner highlighted the discrimination and trauma experienced by the transgender
community in India, including social exclusion, harassment, and violence. The petitioner also
emphasized the historical and cultural significance of hijras in India and pointed out the
discriminatory treatment faced by the community under colonial-era legislation.
Issues:

1. Violation of Fundamental Rights: Does the non-recognition of gender identity for the
transgender community infringe upon their fundamental rights guaranteed under Articles
14 and 21 of the Constitution of India?
2. Need for Third Gender Recognition: Is the recognition of a third gender necessary to
protect the rights of the transgender community?
3. Equality and Discrimination: Is discrimination based on sexual orientation or gender
identity a violation of the right to equality under Article 14 of the Constitution of India?
4. Gender Identity Protection: Do Articles 15 and 16 of the Constitution of India prohibit
discrimination based on gender identity?
5. Freedom of Expression: Does the right to freedom of speech and expression under
Article 19(1)(a) of the Constitution of India encompass the right to express one's self-
identified gender?

Decision:

Court's Ruling on Gender Identity Recognition

The Supreme Court of India ruled that the non-recognition of hijras/transgenders as a third
gender violated their fundamental rights guaranteed under Articles 14 and 21 of the Constitution
of India. The Court acknowledged the right of transgender individuals to self-identify their
gender and affirmed that gender identity is an integral part of sex. The Court further held that no
citizen can face discrimination based on gender identity, including those who identify as a third
gender.

The Court also determined that discrimination based on sexual orientation or gender identity
undermines the right to equality under Article 14 of the Constitution of India. It interpreted
Articles 15 and 16 of the Constitution to explicitly prohibit discrimination on the basis of gender
identity. Furthermore, the Court recognized that the right to freedom of speech and expression
under Article 19(1)(a) of the Constitution of India encompasses the right to express one's self-
identified gender.

The Court acknowledged the historical and cultural significance of hijras in India and took note
of the discrimination they have faced under colonial-era legislation. In response, the Court
directed the government to undertake measures to address the challenges encountered by the
transgender community, based on the recommendations provided by an expert committee.
Reasoning:

Court's Justification for Gender Identity Recognition

The Court concluded that the right to self-determination of gender is an integral part of personal
autonomy and self-expression, falling within the scope of personal liberty guaranteed under
Article 21 of the Constitution of India. Recognizing the discrimination faced by the transgender
community, the Court held that the non-recognition of their gender identity violated their
fundamental rights as guaranteed by Articles 14 and 21 of the Constitution.
The Court also acknowledged that discrimination based on sexual orientation or gender identity
hampers the right to equality under Article 14 of the Constitution of India. It interpreted Articles
15 and 16 of the Constitution as encompassing protection against

Navtej Singh Johar v. Union of India (2018)

Facts:

The Writ Petitions challenge the constitutionality of Section 377 of the Indian Penal Code, 1860
("IPC"). The petitioners argue that Section 377 criminalizes consensual sexual intercourse
between adult persons of the same sex in private. They contend that this provision restricts their
expression of sexual orientation and infringes upon their fundamental rights guaranteed under
Articles 14, 19, and 21 of the Constitution.

Section 375 of the IPC permits consensual penetrative acts, including oral and anal sex, but
Section 377 makes the same acts punishable regardless of consent. The LGBT community
argues that Section 377 hinders their ability to freely express their sexual orientation and
engage in consensual sexual conduct in private, which affects the most intimate aspects of their
lives.

The petitioners assert that sexual orientation and privacy are fundamental rights protected
under Articles 14, 19, and 21 of the Constitution. They request that Section 377 be interpreted
narrowly to apply only to the offense of bestiality and non-consensual acts. They argue that the
Criminal Law (Amendment) Act, 2013, and the Protection of Children from Sexual Offences Act,
2012 (POCSO Act) already address sexual assault comprehensively, including non-consensual
sexual acts and offenses involving children.

The petitioners also reference the Delhi High Court's decision in Naz Foundation, which
examined the concept of constitutional morality and struck down Section 377, stating that
consensual carnal intercourse between homosexuals or heterosexuals should not be
considered an offense. They contend that Section 377 violates Article 14 of the Constitution
because the term "carnal intercourse against the order of nature" is not clearly defined in the
Section or any other law.

It is further argued that replacing the term 'sex' with 'sexual orientation' would require a
constitutional amendment.
The Court notes that only a small fraction of the country's population identifies as lesbian, gay,
bisexual, or transgender (LGBT), and in over 150 years, fewer than 200 individuals have been
prosecuted under Section 377.

Issues:

1. Whether Section 377 of the IPC violates the fundamental rights guaranteed by Articles 21,
19, and 14 of the Constitution?
2. Whether Section 377 is vague and arbitrary?
3. Whether Section 377 prevents LGBT individuals from expressing their sexual orientation and
engaging in private sexual conduct?

Arguments:

The LGBT community argues that Section 377 violates their fundamental rights under Articles
21, 19, and 14 of the Constitution by criminalizing consensual sexual intercourse between
same-sex adults in private.

The petitioners contend that Section 377 is vague and arbitrary because it does not clearly
define "carnal intercourse against the order of nature" in the Section or any other law.

They further argue that Section 377 restricts LGBT individuals from expressing their sexual
orientation and engaging in private sexual conduct, which impacts the most intimate aspects of
their lives.

Decision:

The Court declares Section 377 of the IPC as unconstitutional and violative of the fundamental
rights guaranteed by Articles 21, 19, and 14 of the Constitution. The Court finds that Section
377 is vague and arbitrary since the term "carnal intercourse against the order of nature" is
undefined in the Section and other laws. Additionally, the Court concludes that Section 377
prohibits LGBT individuals from expressing their sexual orientation and engaging in private
sexual conduct, which encompasses the most intimate aspects of their lives. Thus, Section 377
cannot be justified as a reasonable restriction under Article 19(2) based on public or societal
morality, as it is inherently subjective.

In Ayodhya Case (2019), the Supreme Court settled the long-pending dispute over the
ownership of the land where Babri Masjid once stood and where Ram Janmabhoomi is believed
to be located by allotting it to a trust for building a Ram temple and allotting an alternative site to
Muslims for building a mosque.

The Impact of Article 142 on Judicial Decision-Making

Article 142 has enabled the Supreme Court to play an active and dynamic role in ensuring
justice and upholding constitutional values in various spheres of life. It has also enhanced the
prestige and authority of the Supreme Court as the guardian of the Constitution and the final
arbiter of disputes. However, Article 142 has also raised some concerns and criticisms
regarding its scope, exercise and impact on judicial decision-making. Some of them are:

● Article 142 may undermine the principle of separation of powers and checks and
balances among different organs of the state by allowing the Supreme Court to assume
legislative or executive functions in certain cases.
● Article 142 may create uncertainty and inconsistency in law by allowing the Supreme
Court to depart from or override statutory provisions or precedents in certain cases.
● Article 142 may affect the federal structure and cooperative federalism by allowing the
Supreme Court to interfere with or override the policies or decisions of the central or
state governments in certain cases.
● Article 142 may dilute the rule of law and due process principle by allowing the Supreme
Court to pass orders without giving adequate reasons or hearing to the affected parties
in certain cases.
● Article 142 may encroach upon the rights and interests of third parties who are not
before the court or who are not adequately represented in certain cases.
● Article 142 may lead to judicial overreach or activism by allowing the Supreme Court to
intervene in matters that are best left to other authorities or institutions in certain cases.

Conclusion

Article 142 is a remarkable provision that reflects the vision and wisdom of the framers of the
Constitution who entrusted the Supreme Court with a wide and flexible power to do complete
justice in any cause or matter pending before it. This power has enabled the Supreme Court to
address various issues and challenges in a complex and diverse society and protect and
promote constitutional values and human rights. However, this power also entails a great
responsibility and restraint on the part of the Supreme Court to use it judiciously and sparingly
and not to exceed its limits or abuse its discretion. The ultimate aim of Article 142 is to ensure
that justice is done according to law and not according to whim or caprice.