Former Police Commissioner, Delhi and ex-Governor
Whether it is the release of Perarivalan, a convict in the Rajiv Gandhi assassination case, after 31 years by the Supreme Court, or the sacking of a cabinet minister of Manipur, there is a common thread in the form of Article 142(1) of the Constitution. While these two cases are just illustrative, there are a whole lot of others, irrespective of the nature of the matter before the Supreme Court. Be it civil, criminal or constitutional, from the Ram Janmabhoomi case to the cancellation of coal block licenses to the prohibition of liquor vends to operate within the stipulated distance from the national highways, all have the firm imprint of the judgment being delivered under Article 142(1) of the Constitution.
With the Constitution of India being the supreme law of the country, the provisions of Article 142(1) are such that they empower the Supreme Court to deliver complete justice. The concept of complete justice is far beyond the judgment in favour of an individual litigant or parties, which means imparting justice not for just one side alone but for all — rendering a certain degree of finality to the issue at hand.
During the debates on the draft Constitution in the Constituent Assembly, Article 210 of the Government of India Act, 1935, was modified into Article 118 of the draft Constitution which was ultimately finalised as Article 142. Notably, this article was not debated at all by the Constituent Assembly, though two amendments were proposed, which were later withdrawn. In addition to the proposed contents of Article 118, a fresh draft was put forth which was finally adopted as Article 142(1). According to this, “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.”
But what is complete justice? It has been observed by the Supreme Court itself that the power to do complete justice is entirely of a different level and quality which cannot be restricted by the provisions of statutory law. This power enables the administration of justice and whenever the court sees that the demand of justice warrants the exercise of such power, it is so done by resorting to this extraordinary provision especially introduced in the Constitution. At the stage of drafting, the constitutional advisor Sir BN Rau had visited several countries and incorporated a number of constructive provisions from their constitutions into our own. However, provisions of Article 142 (1) are unique to the Constitution of India.
The Supreme Court has very explicitly explained the operation of Article 142 and held: “The plenary powers of this court under Article 142 are inherent in the court and are complementary to those which are specifically conferred upon it by various statutes. It further states that the power under this article is curative in nature which cannot be construed as a power to ignore the substantive rights of a litigant.”
The apex court has acted under this constitutional provision where there is some manifest illegality or where some palpable injustice has resulted and the grant of relief is beyond the parameters of the statutory law. In spite of the basic structure of our Constitution emphasising separation of powers, in certain matters, decrees passed by the Supreme Court appear in the shape of executive directions which are in larger public interest. The celebrated case of Taj Mahal being restored to its old glory is a case in point. In view of the very heavy pollution in the Agra-Mathura area, the marble of the iconic monument had begun to turn yellow. Under Article 142 (1), the Supreme Court imposed severe restrictions in the entire Taj trapezium zone facilitating restoration.
In yet another matter, it was discovered that in hundreds of cases under trial, prisoners had continued to be in custody for periods more than that prescribed for maximum imprisonment on conviction. All such prisoners were given due relief by the top court.
While the usage of this article has been fully recognised and accepted, the two judgments pertaining to constitutional issues appear to be the ‘brahmastra’ (the legendary weapon of Gods) moments of the Supreme Court. In the Manipur Assembly case, an anti-defection matter had been pending with the Speaker under the Xth Schedule of the Constitution.
T. Shyamkumar Singh, an MLA, had defected to the ruling party and had been made a minister. The Speaker, for some reason, was not taking a decision on the motion pending with him for disqualification of the MLA, while he enjoyed the fruits of defection, as a minister. Despite the Supreme Court giving notice and time, the issue was allowed to linger. The Supreme Court then finally delivered an order in March 2020, under Article 142(1), removing the minister from the cabinet and debarring him from entering the premises of the Assembly till further orders. This yet again brought out the weaknesses in the provisions of the Xth Schedule for which the apex court has made some specific suggestions.
The matter of Perarivalan is at a different level, as it also involved the constitutional power of the Governor of a state to grant pardon or remission under Article 161. Instead of exercising this power, the Governor had referred the matter to the President of India but the Supreme Court decided the matter ordering the release of the convict. This also meant an adverse comment on the handling of the matter at the level of the Governor, particularly when the state cabinet had made a specific recommendation.
Thus while on the one hand, a debate on the extent of the state government's authority to recommend a pardon involving Central acts like the Explosive Substances Act, the Passports Act and the Foreigners Act etc., may continue in academic circles for some time, on the other, there is an apprehension that the apex court in order to do good to society may not cross over into the domain of the executive.
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