This article has been written by Muskaan Khandelwal pursuing Remote freelancing and profile-building program. This article has been edited by Oishika Banerji (Team Lawsikho).
This article has been published by Sneha Mahawar.
Article 142 of the Indian Constitution empowers the Supreme Court of India with a discretionary power to pass any such order that it deems as ‘necessary for complete justice’, in any matter pending before it. Article 142 was enacted by the Constituent Assembly on 27 May, 1949, giving the country’s highest court plenary power to ensure the secured administration of justice. The ideal example of the exercise of Article 142 is the Ram Janam Bhumi Case, where a 5-judge Bench of Apex Court allowed the construction of a temple on the disputed land, but along with that provided a 5-acre land for the construction of a Mosque to U.P. Central Sunni Wakf Board. It is ideal to note that since the past few years, the usage of Article 142 of the Constitution by the Apex Court has increased for deciding a case on grounds of ‘complete justice’. This frequent invocation of Article 142 does not have a uniform set of rules that mend ways for its application. Thus the circumstances in which Article 142 applies and those in which its application cannot be seen remain ambiguous which is why the need for judicial restraint comes into discussion. This article devotes itself towards highlighting Article 142 of the Indian Constitution through the lenses of judicial restraint.
Scope of Article 142 of the Indian Constitution
As have been mentioned previously, Article 142(1) of the Indian Constitution empowers the Supreme Court to pass any such order “as is necessary for doing complete justice in any cause or matter pending before it”. Article 142 has been formulated with the intention of satisfying circumstances that cannot be dealt with efficiently and adequately by existing provisions of law. The phrase ‘complete justice’ which is the essence of Article 142(1) is the word of width that has been couched with elasticity so as to meet the needs of complex situations that are created by human ingenuity or are the result of statute operation or any law declared under Articles 32, 136 and 141 of the Constitution. This was opinionated in the case of Ashok Kumar Gupta v. State of U.P (1997). The Supreme Court of India is the sole repository of such wide-ranging powers under Article 142 and therefore can issue a number of orders under the statute.
It was in December 2016 when the Supreme Court of India relied on Article 142 so as to prohibit the selling of alcohol thereby ensuring that the sale of liquor is not accessible from the highway within a distance of 500 metres from the outer edge of the highway or simply from the highway service lane. This decision was pronounced with the intention to curb the rising rate of driving after drinking causing road accidents.
It was in the Ritesh Sinha case (2019) where the Supreme Court had once again invoked Article 142 to take mandatory voice samples of the accused, as there lies no such provisions in the existing laws (Code of Criminal Procedure, 1973 (CrPC)) that vests powers on the court to refer to voice samples expressly. Even the amendment made to CrPC which includes handwriting and bodily samples testing, leaves out testing of bodily samples. A similar kind of approach was adopted by the Apex Court in the case of Union Carbide corporation v. Union of India (1991), commonly known as the Bhopal gas leak case. The Court in this case had opined that the restriction of powers provided by Article 142 would be responsible for causing larger damage to the scope of the Article, therefore, in this case, the scope was expanded. The case has received special mention as it differentiated between laws made by the courts for safeguarding the fundamental rights of citizens and those created for restricting fundamental rights. This also guarantees that the Apex Court cannot misuse its vested power so as to infringe guaranteed fundamental rights as it is the guardian angel so these rights alongside being responsible for upholding it by means of Article 142.
Judicial review and its relation with the doctrine of separation of power
The concept of ‘separation of powers’ was introduced by French political philosopher Montesquieu, who had stated that a government generally has three wings, namely, the executive, the legislature and the judiciary, who are independently independent to each other but not interdependently independent. It is ideal to state that while the legislature is responsible for the formation of laws, the executive looks after the implementation of such laws and it is the judiciary who has been vested with the responsibility of interpreting such laws. Judicial interpretation is also given the term of ‘judicial review’ which is further subdivided in three categories, namely, judicial activism, judicial restraint and judicial overreach. Judicial review is a process through which the Supreme Court and the high courts review or examine the actions of the executive and legislature, thereby abiding by the Indian Constitution.
While the ways in which judicial review can be exercised will receive attention henceforth, it is necessary to highlight judicial restraint a little more, owing to the weightage it receives in our topic. A theory of judicial interpretation, judicial restraint is considered to be encouraging judges to restrict excessive usage of vested powers in the name of judicial review. The concept asserts that the judiciary should have reasonable insight before striking down any existing legislation, except on grounds that the same stands ultra vires the Constitution. It is further to be noted that judicially-restrained judges also need to respect stare-decisis which is the principle of upholding precedent that are handed down by past judges.
Judicial activism is a judicial philosophy where the judiciary should and can go beyond its boundaries in considering a broader implication of any law, in the interest of the larger public. It is sometimes called the opposite of judicial restraint. Judicial activism or judicial intervention takes place in three significant scenarios:
- Legislative vacuum: This usually happens in absence of law for a certain offence that has already occurred. As was seen in the case of Bhanwari Devi And Ors. vs State of Rajasthan on 17 January, 2002, there was no law for governing sexual harassment with women at workplaces. After a thorough evaluation of the Indian Constitution, the Supreme Court had enacted a set of procedural guidelines called ‘the Vishaka Guidelines’ to govern such offences. Later on in 2013, the Prevention of Sexual Harassment Act, 2013 (POSH) had come into picture.
- Executive non-compliance: In the Hossainara Khatoon case (1979), the Bihar government unnoticed infringement of Article 21 of the Indian Constitution, although the presence of knowledge about the same was in existence thereby not taking any action. The Supreme Court of India’s interference had brought hope in the same and from this only, the right to speedy trial became recognised under Article 21.
- On behalf of both the legislature and the executive: In light of this, the Supreme Court’s initiative of providing guidelines for banning and usage of firecrackers, responsible for harming the environment, causing pollution, stands notable. There are several laws formulated for protecting the environment from pollution, in terms of industrial pollution, vehicular pollution, thermal power plant pollution, etc. But there was no such law enacted in the interest of the public for the purpose of governing firecracker’s pollution harming the environment. It was the Apex Court who had taken such a progressive step towards the regulation of firecrackers in Delhi.
Considered to be the antithesis of judicial activism, judicial restraint is one of the theories of judicial interpretation that insist judges limit their power. Courts should understand to not interfere in policy and formulation and law enactment, instead interpreting them. The fact that there is a certain amount of danger associated with this plenary power of the Supreme court provided under Article 142, cannot be ignored. Instead what can be said is the exercise of this power should not be inconsistent. Hence comes the aspect of judicial restraint in the discussion. Here, judges should try to take decisions based on three key components:
- Examining the past decisions taken in any case
- Intent of framers of the Constitution.
- Court should restrain itself from making a new policy based on their decision and leave policy formulation to its experts.
How judicial restraint can be exercised with respect to Article 142
A reflection as to how judicial restraint can be exercised with respect to Article 142 have been provided hereunder:
- Arbitrariness within Article 142:
Arbitrariness refers to the decision-making process which is based on irrelevant facts, while ignoring relevant considerations. However, it cannot be denied that the divergent symbolism provided to the plenary powers of the court has proved out to be helpful for providing an accurate remedy in cases where legislation has been falling short, such as in the case of Bodhissatwa Gautam v. Shubhra Cakrawarti (1995) which narrates the heartbreak of the person who was allegedly cheated by false promise of marriage and compensation was provided by means of invoking Article 142 of the Constitution.
- Ambiguous definition of ‘complete justice’:
There lies a lot of ambiguity with the term ‘complete justice’ as put forth in Article 142 and is therefore subjective to each case depending upon the facts and circumstances of each. This kind of arbitrariness in wordings provides ample room for discretion thereby making way for misusing the powers in the hands of the Apex Court in the name of complete justice.
- Lack of regulatory framework:
The action of the judiciary cannot be subjected to regulation due to the area being left grey. The Apex Court had banned the functioning of e-rickshaws in certain parts of Delhi without making provisions for alternative jobs. Although it cannot be held liable for being responsible for the infringement of the fundamental right to any profession or trade to carry on, the decision is indeed a reflection of abuse of power under Article 142. Further in the series of coal block allocation cases, while only associations were allowed to place their contentions, other individuals and their relevant evidence were not heard by the Supreme Court in the exercise of Article 142 of the Indian Constitution.
The judiciary is criticised for interference but it is present for ensuring justice to people involving those for whom justice is a far-fetched dream. It is not necessary to give justice in court under the law as it can be given outside court because justice is priority whether given inside or outside court. Judicial activism is equally important as judicial morality/judicial restraint, as both can make or break the state. It is really essential to maintain the balance of powers among the three key components of a state, any sort of imbalance may collapse the state. For a common man, it is easier to connect with the judiciary than the executive and legislature, thus he will want the judiciary that takes every possible step to ensure justice instead of claiming that lawmaking is not a part of their job. It is the duty of the judiciary whether it plays its role up to a certain limit or beyond it, as it is people only who praise it for giving justice one day and criticise the other day for enforcing any guideline that do not favour most of them.
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