This article traces the origins of Article 142 of the Constitution of India, the etymology of the phrase “complete justice” and the underlying inspiration it draws from a concept of British Indian vintage-justice, equity and good conscience. Article 142 has been employed by the Supreme Court in myriad situations. The Court has deliberately left its contours undefined, so as to allow for flexibility to deal with future exigencies. This article argues that though the power should indeed remain undefined, when invoked in derogation of statutory provisions or dehors the statutory regime governing a situation, it must necessarily be accompanied by the formulation of a principle or spelling out of a rational justification, which will operate as a precedent. This alone will lead to rationalising its use and negate the uncertainty associated with its exercise in this manner.
“Paradoxically, the greatest danger to the administration of justice and constitutional interpretation arises from the genuine desire of Judges to do justice in each individual case.”
— H.M. Seervai1
INTRODUCTION
Article 142 of the Constitution of India, which by its phraseology is a seemingly benign procedural adjunct to the Supreme Court’s powers, has emerged as the most potent devices employed by the court in judicial activism and judicial innovation. It has in fact become a new source of substantive power.2 This article traces its origins, evolution, and then recounts the debate surrounding its use in derogation of express statutory provisions. This power has been exercised in varied situations but, broadly speaking, in two manners: the first being to grant relief to do “complete justice” in a given case dehors the applicable statutory provisions and second, to issue directions to fill, what the court perceives as “legislative gaps”, which directions operate as the law of the land until such time that the legislature or the executive steps in.
The focus of this article is on the former of the two exercises. While tracing such exercise in the context of equity jurisdiction to “particular equity”, and justifying such exercise, this article only takes exception to the Court’s practice of expressly adding that the relief it has granted in a specific case is not to be treated as a precedent. While it is elementary that a judgment is a precedent only to the extent of its ratio decidendi (and not every direction or observation), the final court of the country, that declares law under Article 141 of the Constitution, ought to be obligated to supply a rational justification for its directions aimed at doing “complete justice”.
Granting relief or issuing directions without any reasoning or spelling out the underlying basis, rationale or principle, for posterity, not only does violence to the doctrine of precedent, but also introduces an element of uncertainty in the judicial process. This uncertainty has a bearing on: (i) how citizens conduct themselves, including in adhering to the statutory law, (ii) also what outcome their litigation will have and above all (iii) the deference shown by parties to judicial directions i.e. their compliance. Such unreasoned orders, which are statedly contrary to the statutory law, also obscure the legal standards and mandates that are otherwise devoid of any ambiguity as to their manner of compliance. For a litigant, this uncertainty translates into an exercise of chance, which inherently breeds more speculative litigation, adding to the already overburdened docket of the Supreme Court.
Hence, while it is not advisable and perhaps impossible to give an all-encompassing normative prescription for the manner of and circumstances for the exercise of the power under Article 142, particular equity cannot be countenanced in the absence of underlying reasoning, basis or principle, whether pre-existent or otherwise.
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*The article has been published with kind permission of Eastern Book Company. Cite as (2021) 1 SCC J-30
† The author is a lawyer practising at the Supreme Court of India.
1 H.M. Seervai, Constitutional Law in India (2010), xxv.
2 Justice Ruma Pal and Samaraditya Pal (Eds.), M.P. Jain’s Indian Constitutional Law, (6th Edn., Economy Paperback Reprint, 2010), p. 281.
3 Bangladesh Constitution, Article 104.
4 Nepal Constitution. 2015, Article 133(3); See also Nepal Constitution 1990, Article 88(2).
5Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 3 SCC 284, para 32.
6 Government of India Act, 1935, Section 209.
7 B. Shiva Rao, The Framing of India’s Constitution: Select Documents, 209 (2010), Notes on certain clauses by Alladi Krishnaswami Ayyar.
8 Id at p. 389.
9 Constituent Assembly Debates, Vol. VIII at p. 639.
10State v. Kalyan Singh, (2017) 7 SCC 444, para 22.
11Rambhau Ganpat Koshire v. Sardarshingh Rupsingh Ture, 2013 SCC OnLine Bom 673 : (2013) 5 Bom CR 44.
12 Justice Ruma Pal and Samaraditya Pal (Eds.), M.P. Jain’s Indian Constitutional Law, (6th Edn., Economy Paperback Reprint, 2010), p. 210.
13 R. Prakash, “Complete Justice Under Article 142”, (2001) 7 SCC J-14 at p. 19.
14Bhinka v. Charan Singh, AIR 1959 SC 960.
15Rambux Chittangeo v. Modoosoodhun Paul Chowdhury, 1867 SCC OnLine Cal 18 : (1867-74) Supp BLR 675 in Kshirodebihari Datta v. Mangobinda Panda, 1934 SCC OnLine Cal 65 : AIR 1934 Cal 682.
16 Government of India Act, 1935, Section 209. C.K. Allen, Law in the Making (Clarendon Press, Oxford, 1927). The book originated in the Tagore Lectures delivered in Calcutta in 1926 titled Sources of Law.
171615 Ch Rep 1 : 21 ER 485.
18 Sarah Worthington, Equity, (2nd Edn., Clarendon Law Series, Oxford University Press, 2006).
19 C.K. Allen, Law in the Making (Clarendon Press, Oxford, 1927). The book originated in the Tagore Lectures delivered in Calcutta in 1926 titled Sources of Law, at p. 197.
20 Id at p. 232.
21 Rebecca M.M. Wallace, International Law – A Student Introduction, (2nd Edn., 2nd Indian Reprint, 1995).
22 Motilal Setalvad, The Common Law in India, Hamlyn Law Lectures, Series 12, 1960, 2nd Edn. at p. 56.
23 Sir Frederick Pollock, The Law of Fraud, Misrepresentation and Mistake in British India, Tagore Law Lectures (1894).
24 Motilal Setalvad, The Common Law in India, Hamlyn Law Lectures, Series 12, 1960, 2nd Edn., at p. 59.
25 Herbert Cowell, The History and Constitution of the Courts and Legislative Authorities in India, Tagore Law Lectures (1872).
26 Sripati Roy, Customs and Customary Law in British India, Tagore Law Lectures (1908).
27 See the Bengal Civil Courts Act, 1871, p. 24; The Oudh Civil Courts Act, 1871, p. 31; The Punjab Laws Act, 1872, p. 6; The Burma Courts Act, 1872, p. 6; The Madras Civil Courts Act, 1873, p. 16 cl. (c); The Central Provinces Laws Act, 1875, p. 6; The Burma Courts Act, 1875, p. 4; The Oudh Laws Act, 1876, p. 3 cl. (g); The Bengal, Agra and Assam Civil Courts Act, 1887, p. 37 cl. (2).
281887 SCC OnLine PC 7 : (1886-87) 14 IA 89 at p. 96 per Lord Hobhouse.
29 Rashbehary Ghose, The Law of Mortgage in India, Tagore Law Lectures (1875), Lecture IX.
30(2020) 1 SCC 1 at p. 659.
31(1976) 2 SCC 103 at p. 114.
32(1995) 3 SCC 635 at p. 647, para 22.
33(2011) 8 SCC 161 at p. 245.
341972 SCC OnLine Del 22 : ILR (1972) 1 Del 601 at p. 614.
35M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1 at p. 662.
36 B. Shiva Rao, The Framing of India’s Constitution Select Documents, 209 (2010), Notes on certain clauses by Alladi Krishnaswami Ayyar at pp. 57, 58.
37(1980) 3 SCC 545 at p. 550.
38Gopal L. Raheja v. Vijay B. Raheja, 2007 SCC OnLine Bom 399 : (2007) 4 Bom CR 288 at p. 302, para 49.
39(2019) 10 SCC 395 at p. 406 paras 37, 38.
40Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjibhai Mody, (1964) 3 SCR 480 : AIR 1964 SC 345.
41S.S. Balu v. State of Kerala, (2009) 2 SCC 479.
42D.C.M. Ltd. v. Union of India, (1996) 5 SCC 468.
43Sikkim Subba Associates v. State of Sikkim, (2001) 5 SCC 629.
44(1984) 2 SCC 50 at p. 57.
45(1584) 3 Co Rep 7a : 76 ER 637.
46Black’s Law Dictionary, (11th Edn., 2019), p. 1195.
47Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1 at p. 65.
48(1961) 1 SCR 884, para 8.
49Ranglal v. Munjaji, 1953 SCC OnLine Hyd 64 : AIR 1956 Hyd 29, Mohd. Gulam. Rabbani v. Bankipora Hari Sabha, 1973 SCC OnLine Pat 77 : AIR 1973 Pat 358.
50(2011) 11 SCC 275 at p. 283.
52(2011) 14 SCC 770 at p. 798.
53(2012) 10 SCC 303 at p. 339.
54Sanchalakshri v. Vijayakumar Raghuvir Prasad Mehta, (1998) 8 SCC 245 at p. 249.
55C.M. Singh v. H.P. Krishi Vishwa Vidyalaya, (1999) 9 SCC 40 at p. 42; Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415 at p. 423.
57 Id, at para 14.
58AIR 1967 SC 1643, at para 51, per Subba Rao, J. This aspect remains untouched by the decision in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 which overruled the judgment on the aspect of whether constitutional provisions guaranteeing fundamental rights could be amended.
59(1988) 2 SCC 602, at para 206, per Ranganathan, J. who was in the majority.
60(1991) 4 SCC 406 at p. 462.
62 Id, at para 83.
63 Id, para 84, per Ranganath Mishra, J.
64(1996) 4 SCC 622 per Jeevan Reddy, J.
661995 Supp (3) SCC 128 at p. 132.
67(1998) 4 SCC 409 at p. 437.
68 Supreme Court Bar Assn. case, (1998) 4 SCC 409, 438, Id, para 56.
69 Id, 432, para 47.
70 Supreme Court Bar Assn. case, (1998) 4 SCC 409, 432, para 48.
71(2013) 8 SCC 154 at p. 186.
72(2014) 8 SCC 883 at p. 890, para 12.
73M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1 at p. 664.
74 Ronald Dworkin, “Hard Cases”, Harvard Law Review, Vol. 88, No. 6 (April 1975), pp. 1057-1109 available at <https://www.jstor.org/stable/1340249>.
75Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
77 Id, para 15.
78 See e.g. Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244; Vishaka v. State of Rajasthan, (1997) 6 SCC 241; Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406.
80Vineet Narain v. Union of India, (1998) 1 SCC 226, Id, para 51.
81 See e.g. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.
82 Id at p. 187.
83 Id at p. 192; Nain Sukh Das v. State of U.P., AIR 1953 SC 384.
84 Justice C.K. Thakker and M.C. Thakker (Eds.), V.G. Ramachandran’s Law of Writs, (6th Edn., 2006), p. 171.
85Monica Kumar v. State of U.P., (2008) 8 SCC 781 at p. 801.
86(1982) 2 SCC 101.
87 Ed.: Despite the above cogent arguments as to the breadth of the power available to the Supreme Court under Article 142, it is still worth contemplating the relevant portion of the bare text of Article 32(2) of the Constitution, which does appear to confer nearly plenary power on the Supreme Court to issue directions for the enforcement of fundamental rights, which would appear to include the power to issue legislative directions as well:
Article 32(2) The Supreme Court shall have power to issue directions … for the enforcement of any of the rights conferred by this Part.
(emphasis supplied)
As correctly argued in this article, there will be situations wherein the Supreme Court would not be able to have recourse to Article 32, as fundamental rights may not be involved, yet so many of the clearly legislative directions of the Supreme Court purportedly issued under Article 142 following Vishaka, (1997) 6 SCC 241, it is respectfully submitted, can be put on a far more sound and justifiable constitutional, legal and jurisprudential basis if their source is located in Article 32 and not Article 142. When these legislative directions are purported to be given in exercise of power under Article 142, the judicially crafted legislation must be justified on a judicial interpretation of Article 142. Whereas, were Article 32(2) to be invoked, in those cases where it certainly could have been so invoked, its bare text provides for the giving of such directions: thus providing a direct constitutional basis for such legislative directions.
90 P.J. Fitzgerald, Salmond on Jurisprudence (12th Edn., Universal Law Publishing Co., 2004) 145.
91[1975] 1 WLR 1338 : 1975 EWCA Civ. 3 (CA).
92(1996) 10 SCC 193 at p. 222.
93Cognizance for Extension of Limitation, In re, 2020 SCC OnLine SC 343.
95Sanjay Lakhe Patil v. Maharashtra State Legislative Assembly, 2014 SCC OnLine Bom 2489.
96Union of India v. Harish Chandra Singh Rawat, (2016) 16 SCC 744, Chandrakant Kavlekar v. Union of India, (2017) 3 SCC 758, G. Parmeshwara v. Union of India, (2018) 16 SCC 46, Shiv Sena v. Union of India, (2019) 10 SCC 809.
98Keisham Meghachandra Singh v. Manipur Legislative Assembly, 2020 SCC OnLine SC 617.
99 Government of India Act, 1935, at p. 209.
100M.C. Mehta v. Union of India, (2009) 6 SCC 142.
101 A set of guidelines and instructions related to the import or export of goods notified by the Government of India under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992.
102Bharat Petroleum Corpn. Ltd. v. P. Kesavan, (2004) 9 SCC 772; Indian Council of Agricultural Research v. A.N. Lahiri, (1997) 10 SCC 691; Chief Secy. v. Students of A.P.A.U., (2005) 12 SCC 448; Central Marine Fisheries Research Institute v. A. Kanakkan, (2009) 17 SCC 253.
103(1994) 2 SCC 630.
104State of Punjab v. Surinder Kumar, (1992) 1 SCC 489; Indian Bank v. ABS Marine Products (P) Ltd., (2006) 5 SCC 72; Ram Pravesh Singh v. State of Bihar, (2006) 8 SCC 381; State of U.P. v. Neeraj Awasthi, (2006) 1 SCC 667 and Indian Drugs & Pharmaceuticals Ltd. v. Workmen, (2007) 1 SCC 408.
105(2014) 8 SCC 883 at p. 890.
106 R.V. Raveendran, “Precedents-Boon or Bane?” (2015) 8 SCC J-1 at J-18.
108(2006) 4 SCC 1 at p. 24.
109(2014) 6 SCC 466 at p. 480.
110K. Ajit Babu v. Union of India, (1997) 6 SCC 473 at p. 477.
111Karnataka SRTC v. Mahadeva Shetty, (2003) 7 SCC 197 at p. 206.
1121965 A.C. 1001 (HL).
113 Id, 1021 (per Lord Reed).
114(1989) 2 SCC 754 at p. 766.
115 HLA Hart, The Concept of Law 272 (2nd Edn., Oxford: Clarendon Press, 2005).
116 N.E. Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights 87 (2003).
117 Precedent in English Law, Cross and Harris 222 (4th Edn., Clarendon Law Series, Oxford University Press, 2007).
118 HLA Hart, The Concept of Law 272 (2nd Edn., Oxford: Clarendon Press, 2005) at p. 273.
119 Id, 274.
120Black’s Law Dictionary, p. 860 (11th Edn., 2019).
121 Ronald Dworkin, Taking Rights Seriously 37 (Harvard University Press, 1977).
122115 NY 506 (1889). In this New York case, one Mrs Riggs had bequeathed property to Mr Palmer, her nephew. The nephew murdered his aunt to obviate any change in the bequest. The Court held that notwithstanding the fact that on a strict reading of the letter of the law, Mr Palmer would have been entitled to his share under the will, the court shall not allow him to take the same. Thus, the Court went against the letter of the law in view of equitable considerations.
123 N.E. Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights 87 (2003) at p. 99.
124 Id, at p. 105.
125 A. Barak, Purposive Interpretation in Law, pp. 210-211 (2007).
126 H.R. Khanna, Judiciary in India and Judicial Process, p. 55 (1985).
127 Id at p. 56.
1281904 SCC OnLine US SC 63 : 48 L.Ed. 679 : 193 US 197 (1904).
129 Samuel Harvey Reynold, The Table Talk of John Selden, pp. 60-61 (1892).
130 Motilal Setalvad, The Common Law in India, Hamlyn Law Lectures, Series 12, 1960, 2nd Edn. at p. 31.
131 Vicaji J. Taraporevala, Tales from the Bar & the Bench 4 (2010).