Innovation of Article 142 by the Hon’ble Supreme Court Speaks to be a Boon or a Bane

By Tashmayee Sarkhel

Published on: 02nd August 2022, at 20:54 IST

This article includes the aspects related to Article 142^[1], the landmark cases concerning it, and the discretion of the Hon’ble Supreme Court on them.

Article 142 delegates to the Supreme Court the only power to conduct “full justice” between the parties, i.e., if the law or statute fails to provide a remedy, the Court can extend itself to put an end to the dispute in a manner that is appropriate to the facts of the case.

The Supreme Court invoked Article 142 to exercise its extraordinary powers in any case or matter pending before it to accomplish “full justice” while delivering the judgment.

Article 142

According to Article 142, the Governor of a state has the authority to grant pardons, reprieves, respites, or remissions of punishment, as well as suspend, remit, or commute the sentence of any person convicted of any offense against any law relating to a matter to which the State’s executive power extends.

“The Supreme Court may, in the exercise of its jurisdiction, 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 or order 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 such provision is made, in such manner as the President may by order preside over,” as Article 142 states.

Article 142 and Supreme Court:

The Supreme Court has exercised its Article 142 power in various cases, notably the Union Carbide Case in 1989 and the Ayodhya Ram Mandir decision in 2019. During the Bhopal gas tragedy, the US-based Union Carbide Corporation was also ordered to pay $470 million in compensation to the victims by the Supreme Court. The Supreme Court refused to divide the property in the Ram Mandir Case, instead of handing up 2.77 acres of the disputed territory to Hindus. In circumstances where litigants have suffered abuses during the processes, Article 142 of the Constitution grants the Supreme Court unrestricted power to do complete justice.

• In the case of Rajiv Gandhi’s assassination, Perarivalan was released – The Supreme Court used its exceptional jurisdiction under Article 142 of the Constitution on Wednesday to order the release of AG Perarivalan, who has been imprisoned for almost 30 years in connection with the killing of Rajiv Gandhi. Perarivalan was 19 when he was arrested in 1991 for purchasing batteries that were used to detonate the belt bomb that killed the former Prime Minister. The state cabinet’s opinion recommending the premature release of all seven convicts in the case was binding on the governor, according to a high court bench led by Justice L Nageswara Rao. The Supreme Court also rejected the Centre’s contention that the president alone can offer a pardon in a case under Section 302^[2] of the Indian Penal Code, arguing that this would render Article 161^[3] (the governor’s power to grant pardon) ineffective.
• Despite the lack of legislation, the Supreme Court has asked cops to treat sex workers with dignity – Because the Centre has yet to pass a law on sex workers, the Supreme Court has issued a series of directives on their “rehabilitation,” including training police to treat sex workers with dignity and avoid abusing or harming them. A Bench led by Justice L Nageswara Rao also asked the Centre to explain its position on a panel’s recommendation in 2011 to exempt sex workers who are adults and participate with consent from criminal prosecution. Justices B F Gavai and A S Bopanna also joined the bench, which instructed states and union territories to “act in strict conformity with some of the recommendations,” which relate only to rehabilitation measures in respect of sex workers and other related matters.” “Regardless of occupation, every individual in this nation has a right to a dignified existence under Article 21^[4] of the Constitution,” the bench ruled. The authorities who have a duty under the Immoral Traffic (Prevention) Act, 1956^[5] must keep in mind the constitutional protection that is guaranteed to all citizens in this country.” The bench, in a judgment dated May 19, directed the Centre to submit its views on proposals on which it had reservations within six weeks. The government has “some misgivings” about several of the panel’s recommendations, according to Additional Solicitor General Jayant Sud, who told the bench. On July 19, 2011, the court established a group, chaired by senior attorney Pradip Ghosh, to recommend steps to combat trafficking, rehabilitate sex workers who desire to leave the industry, and provide conditions that allow sex workers who wish to continue working with dignity to do so. Jayant Bhushan, a senior advocate, Usha Multipurpose Cooperative Society’s president/secretary, Durbar Mahila Samanwaya Committee’s president/secretary, and NGO Roshni Academy’s founder Saima Hasan were also members of the committee. A list of recommendations was submitted by the panel. On May 19, the Supreme Court noted that “the proposals were evaluated by the Government of India in 2016 and a draught statute was released incorporating the recommendations,” as it heard the case. However, because the law has yet to be enacted, the court said it is using its Article 142 authority to mandate the implementation of certain of the suggestions.

Conclusion:

It said that any ruling or decree issued by the Supreme Court to provide comprehensive justice was enforceable across India. In a few of the cases, it can only be employed if the court is otherwise exercising its jurisdiction, and the matter or disagreement before the Supreme Court must necessitate the court’s order to serve complete justice, it happens at a time when Article 142 is challenged. Hence It supersedes the executive and legislative branches of government in ensuring the country’s stability and safeguarding citizens’ rights.

Reference:

1. Article 142, The Indian Constitution ↑
2. The Indian Penal Code, s.302 ↑
3. The Indian Constitution, a. 161 ↑
4. The Indian Constitution, a. 21 ↑
5. The Immoral Traffic (Prevention) Act, 1956 ↑