SC displays judicial restraint, resets judicial compass

Often criticised for judicial overreach, the Supreme Court has demonstrated restraint by strongly disapproving the use of Article 142 to take over functions of other arms of the State, namely the Legislature and the Executive.

“It is a matter of settled law that jurisdiction under Article 142 cannot be invoked to achieve results that are contrary to the Constitution or statutory provisions,” a five-judge Constitution Bench led by CJI BR Gavai unanimously stated, while answering 14 questions referred to it in a Presidential Reference under Article 143 of the Constitution.

The verdict can be viewed as the Supreme Court’s attempt to reset the judicial compass, addressing concerns within the political class about actual or perceived misuse of Article 142 to usurp the functions of the Legislature and the Executive.

The Presidential Reference originated from the Supreme Court’s April 8 verdict, which fixed timeframes for governors and the President to grant assent to Bills passed by state Assemblies. On April 8, a two-judge Bench set aside Tamil Nadu Governor RN Ravi’s decision to withhold assent for 10 Bills, reserving them for consideration by the President even after their re-enactment by the state assembly. Invoking Article 142, it had declared the bills were “deemed” to have received the Governor’s assent due to inordinate delay.

Two of the 14 questions referred by President Droupadi Murmu concerned Article 142, which empowers the Supreme Court to “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.”

The President asked the Court: “Can the exercise of constitutional powers and the orders of/by the President/Governor be substituted in any manner under Article 142 of the Constitution of India? … Do the powers of the Supreme Court under Article 142 of the Constitution of India limit themselves to matters of procedural law, or do they extend to issuing directions or passing orders which are contrary to or inconsistent with existing substantive or procedural provisions of the Constitution or laws in force?”

The Bench – which included Justices Surya Kant, Vikram Nath, PS Narasimha, and AS Chandurkar – concluded that the “deemed assent” of pending bills by the Court, under Article 142, amounted to a takeover of the role and function of a separate constitutional authority, and reliance on Article 142 cannot supplant constitutional provisions.

The Bench concluded, “…we are of the considered opinion that Article 142 cannot be employed to arrive at a conclusion contrary to the express provisions of the Constitution.”

Two provisions of the Constitution are said to have been misused – Article 136 (Special Leave Petition) and Article 142, which empowers the Court to make orders necessary for complete justice in pending matters.

Citing a 1962 Supreme Court verdict, the Bench added, “this Court cannot even under Article 142(1) make an order plainly inconsistent with the express statutory provisions of substantive law, much less inconsistent with any constitutional provisions.”

It is now incumbent on judges to take their cue from this judgment and act accordingly.