This Article explains the concept of Article 142 of the Indian Constitution with the help of Case laws; dealing with the nuances of Article 142 of the Indian Constitution.
Text of Article 142 of the Indian Constitution
142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc
( 1 ) 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 orders 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
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself
Nature and Scope of Article 142
In the case of Premchand Garg v. Excise Commissioner, the nature and scope of this power came up for consideration before the Supreme Court It was held that the power, though wide, did not enable the Court to make an order plainly inconsistent with any Constitutional provisions.
In Union Carbide Corporation v. Union of India the Supreme Court held that:
“The power under Article 142 is at an entirely different level and of a different quality. The prohibitions or limitations or provisions contained in ordinary laws cannot ipso facto act as prohibitions or limitations on the Constitutional powers under Article 142. Such prohibitions or limitations in the statute might embody and reflect the scheme of a particular law taking into account the nature and status of the authority or the Court on which conferment of powers — limited in some appropriate way — is contemplated. The limitations may not necessarily reflect or be based on any fundamental considerations of public policy. .. .. .. .. ..It will again be wholly incorrect to say that the powers under Article 142 are subject to such express statutory prohibitions that would convey the idea that statutory provisions override a Constitutional provision.”
Supreme Court in the case of Visakha v. State of Rajasthan excersing Article 142 formed the law of the land in the absence of any substantive law covering the issue of sexual harassment at workplace and such directions filled the vacuum till the Legislature enacted a substantive law. In a later decision in State of Karnataka v. State of Andhra Pradesh (2000) 9 SCC 572, the Supreme Court held that Article 142 conferred wide powers on the Supreme Court to do complete justice between the parties and the Court can pass any order or issue any direction that may be necessary.
In Supreme Court Bar Association v. Union of India, Supreme Court, observed that, “it is well-recognized and established that this Court has always been a law-maker.” This implies the law making power of the Supreme Court.
Section 13 of the Hindu Marriage Act lays down the grounds to obtain a decree of divorce, but irretrievable breakdown of marriage is not one of the grounds. In Romesh Chander v. Savithri the issue that came up for consideration before the Supreme Court was whether a marriage which is otherwise dead emotionally and practically be allowed to continue for name sake. The Supreme Court, in the exercise of powers under Article 142 of the Indian Constitution, directed that the marriage between the appellant and the respondent shall stand dissolved as the marriage was practically dead. This decision has been followed by the Supreme Court in several decisions.
It is a settled law that the Supreme Court grants a decree of divorce only in those situations in which the Court is convinced beyond any doubt that there is absolutely no chance of the marriage surviving and it is broken beyond repair.
It is however, pertinent to note that the power conferred upon the Supreme Court under Article 142 of the Indian Constitution is confided to the Supreme Court and the High Courts and Tribunals have no right to exercise this power.
In AR Antulay v RS Nayak, the Supreme Court has observed in relation to Article 142:
… however wide and plenary the language of the article, the directions given by the Court should not be inconsistent with, repugnant to, or in violation of the specific provisions of any statute.
Preconditions to Article 142
The Supreme Court’s powers under Article 142 are vastly broad based. That power in its exercise is circumscribed only by two conditions:
(1) that it can be exercised only when the Supreme Court otherwise exercises its jurisdiction, and
(2) that the order which the Supreme Court passes must be necessary for doing complete justice in the cause or matter pending before it. But the power should not be exercised frequently, but sparingly.
Under section 25 of the Delhi Special Police Establishment Act, 1946, Central Bureau of Investigation (CBI) cannot investigate a cognizable offence committed within a State without the consent of the concerned State Government. But the Supreme Court has ruled that it can under Article 142 (1) direct CBI to investigate such an offence within a State without the consent of the concerned State Government. The court has asserted that the exercise of its power under Article 142 (1) is not conditioned by any statutory power, because statutory provisions cannot override constitutional provisions. Article 142 (1) being a constitutional power cannot be limited or conditioned by any statutory provision. The court has explained the scope of Article 142 in the following words:
In UOI v M. Bhaskar, this Article was interpreted to mean that benefits of a judgment, where appropriate, can even be extended “to all similarly placed persons” irrespective of the fact whether they are party to the proceedings or not. The principle under this Article was applied in cases where non-appealing accused was given the benefit of a judgment where conviction has been altered in an appeal filed by an accused similarly situated.
The power under Article 142 of the Indian Constitution is meant to supplement the existing legal work to do complete justice between parties and not supplant it. It is conceived to meet situations which cannot be effectively and appropriately tackled by the existing provisions of law. It is advisable to leave this power undefined and uncatalogued so that it remains elastic enough to mould to suit the given situation.
What does Article 142 say?
Article 142 allows the Supreme Court to pass any order necessary to do “complete justice” in any case. “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
What is the difference between review petition and curative petition?
The main difference between the review petition and curative petition is the fact that review petition is inherently provided in the constitution of India whereas the emergence of the curative petition is in relation with the interpretation of the review petition by the Supreme Court which is enshrined in article 137.