Complete Justice: Article 142

Broken down

"In the exercise of its jurisdiction". The power is not a separate jurisdiction. It is exercised in a matter the Court already has under some other head, an appeal, a petition under article 32, a transferred case. Article 142 lets nobody into the Supreme Court who could not otherwise come.

"Such decree or make such order as is necessary". The test is necessity, judged by the Court, and the form of the order is unlimited: a decree the pleadings never asked for, a direction to a public authority, a scheme.

"For doing complete justice". Complete, that is, between the parties before it. The purpose is the measure of the power, and it is the phrase the Court has used to cut the power back.

"In any cause or matter pending before it". There must be a live proceeding. A disposed matter is no longer pending.

Clause (2) is different in kind, and note its opening words. The powers to compel attendance, to order discovery and to punish contempt of itself are made "subject to the provisions of any law made in this behalf by Parliament". Clause (1) carries no such subjection.

The inherent power of a court of record

MU has asked, in both its 2018 papers, about powers conferred on competent courts which are inherent in nature. The examiner is pointing at two different things, and an answer that runs them together loses the marks.

Article 142 is a conferred power, and it belongs to the Supreme Court alone. A High Court asked to do complete justice must find the power somewhere else.

Article 129 is an inherent power, and the article does not confer it at all. It says the Supreme Court "shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself", and article 215 says exactly that of every High Court. The article recognises a status and the powers that go with it; it does not create them.

The Constitution does not define a court of record, so the report in Supreme Court Bar Association does. It is "a court, the records of which are admitted to be of evidentiary value and are not to be questioned when produced before any court", and its power to punish for contempt "is a part of their inherent jurisdiction and is essential to enable the courts to administer justice according to law in a regular, orderly and effective manner."

The consequence follows in the same report. Because that power is inherent, "no act of parliament can take away that inherent jurisdiction of the Court of Record to punish for contempt", though a law "may serve as a guide for the determination of the nature of punishment". That is the answer to MU's question in a sentence: an inherent power survives the legislature, while a conferred power can be shaped by whoever conferred it.

The case that fixed the limit

Facts. Supreme Court Bar Association v. Union of India, AIR 1998 SUPREME COURT 1895, 1998 (4) SCC 409, decided 17 April 1998 by a Constitution Bench of five. In an earlier contempt case an advocate had been found guilty of criminal contempt, and the Court, invoking article 129 read with article 142, had sentenced him to a suspended term of imprisonment and suspended him from practising as an advocate for three years. The Supreme Court Bar Association petitioned under article 32 for a declaration that only the disciplinary committees of the Bar Councils under the Advocates Act 1961 can suspend or debar an advocate. The single question framed was whether punishment for contempt by an advocate can include suspension of his licence to practise, under article 129 read with article 142.

Held. No. The Court accepted that its plenary powers are "of very wide amplitude", are "in the nature of supplementary powers", and exist "as a separate and independent basis of jurisdiction, apart from the statutes". It then set the boundary. The powers "being curative in nature cannot be construed as powers which authorise the court to ignore the substantive rights of a litigant"; the power "cannot be used to 'supplant' substantive law"; and the article "cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject."

Applying that, punishing a contemner advocate "by suspending his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the contemner is also an advocate, is, therefore, not permissible in exercise of the jurisdiction under Article 142." Contempt of court and professional misconduct are "separate and distinct" jurisdictions, exercised by different forums under different procedures. Two further sentences carry the doctrine. First, "The very nature of the power must lead the court to set limits for itself within which to exercise those powers and ordinarily it cannot disregard a statutory provision covering a subject, except perhaps to balance the equities between the conflicting claims of the litgating parties by 'ironing out the creases'." Second, "wider the amplitude of its power under Article 142, the greater is the need of care for this Court to see that the power is used with restraint."

Why it matters. It is the Court limiting itself, and in its own favour nowhere. Three things come out of it. First, the distinction between a prohibition in a statute, which does not bind article 142 in a matter arising out of that statute, and a substantive statutory scheme dealing with the subject, which cannot be ignored. Second, the rule against doing indirectly what cannot be done directly. Third, and institutionally, the Court said its role is to make statutory authorities perform their duties, and that "it is not permissible or the Court to 'take over' the role of the statutory bodies or other organs of the State and 'perform' their functions." That is the separation of powers stated as a limit on the widest power the Constitution gives a court.

Two decisions the report relies on, Prem Chand Garg v. Excise Commissioner and In Re: Vinay Chandra Mishra, are named here without citations: their own reports have not been read for this book, and what is said of them comes from the Supreme Court Bar Association report.

Article 142 compared

What it does NOT mean

It does not mean the Supreme Court is above the law. The Court's own formulation is that its constitutional powers "can not, in any way, be controlled by any statutory provisions", but that they "are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in statute dealing expressly with the subject". The two sentences are not in conflict: the first is about the source of the power, the second about the discipline of using it.

It does not mean a High Court can do complete justice under article 142. It has articles 215, 226 and 227, dealt with in [The High Courts], and nothing wider.

It does not mean every direction a court gives is an article 142 order. Directions filling a legislative vacuum are issued under article 32 read with article 142 and take effect through article 141, a different technique treated in [Continuing Mandamus and Judicial Guidelines].

A worked example

A statute regulating a profession vests the power to cancel a practitioner's registration exclusively in a statutory council, after a charge is framed and an inquiry held. Dr. Rekha, a registered practitioner, is found by the Supreme Court in an appeal to have given false evidence before it. The Court is minded to cancel her registration itself, to save the years the council would take.

Step one, is there a pending cause or matter? Yes, the appeal. Article 142(1) requires a live proceeding.

Step two, is the order necessary for complete justice between the parties? Doubtful. Complete justice in the appeal means resolving the dispute between appellant and respondent, and cancellation is a relief neither sought.

Step three, does a statute deal expressly with the subject? Yes. The Act vests the power in the council and prescribes a procedure with penal consequences. That is a substantive statutory scheme, not a procedural prohibition.

Step four, apply the limit. The Court would be doing indirectly what it cannot do directly, and building a new edifice where none existed, on facts materially identical to those in Supreme Court Bar Association. The order cannot be made under article 142.

Step five, what can the Court do instead? Find the fact, record it, and refer the matter to the council, requiring it to act and report. If the council then refuses, the Court can examine that refusal, because the statutory authority has now failed in its duty rather than the Court having replaced it.

The standing objection

The article has been used to dissolve marriages irretrievably broken though no statute permits it, to fix the terms of a mass settlement, to move investigations and to lay down administrative schemes. Each order can be defended on its own facts; the objection is cumulative. A power whose only stated test is what the Court thinks necessary has no external check, because no appeal lies against the court of last resort. The Court's answer is the one quoted above. Whether self-restraint suffices is what the syllabus phrase "stresses and strain" is asking, and the related complaint that such orders read as legislation belongs with [Judicial Activism, Restraint and Overreach].

Quick revision

• Article 142(1): the Supreme Court may pass any decree or order necessary for doing complete justice in any cause or matter pending before it, enforceable throughout India.
• The power is plenary, residual and supplementary; it exists apart from statute and is not controlled by statute. Clause (2), unlike clause (1), is expressly subject to any law made by Parliament.
• It belongs to the Supreme Court alone. No High Court has an article 142.
• Article 129 makes the Supreme Court a court of record and article 215 makes every High Court one. The contempt power there is inherent, so no Act of Parliament can take it away, though a law may guide the punishment.
• Supreme Court Bar Association v. Union of India: article 142 is curative, cannot ignore a litigant's substantive rights, cannot supplant substantive law, and cannot build a new edifice by ignoring express statutory provisions.
• The Court cannot suspend an advocate's licence while punishing him for contempt; that lies exclusively with the Bar Councils under the Advocates Act 1961, and the two jurisdictions are separate and distinct.
• The sentence to carry into an exam: the wider the amplitude of the power, the greater the need for restraint.

Test yourself

1. Set out article 142(1) and identify the four conditions built into its words.

2. Distinguish a power that is conferred from a power that is inherent, using articles 142 and 129. Why does the distinction change what Parliament can do?

3. What exactly did the Court hold it could not do in Supreme Court Bar Association v. Union of India, and on what reasoning?

4. "Article 142 cannot be controlled by statute, but will not be used against a statute." Reconcile those two statements.

5. Is self-restraint an adequate check on article 142? Argue both sides.