UP Lokayukta case: When remedy was worse than malady

Several decisions and directions of the Supreme Court passed in recent months are baffling as these are without any mandate of the Constitution. The appointment of former high court judge Justice Virendra Singh (Yadav) as the Lokayukta of Uttar Pradesh at the direction of the apex court took the judicial activism to a new high setting a dangerous precedent.

However, the miscarriage of justice was averted after the protest lodged by Chief Justice D Y Chandrachud of Allahabad High Court that the chief minister had assured him on withdrawing the name of Singh but his name was included in the panel sent to the SC. It led to the filing of a PIL and the apex court held an emergency hearing on December 19 and restrained the UP government from going ahead with the swearing in of Singh.
Initially, the Court became a pawn into the hands of the state government, and appointed the man against whom the chief justice of the high court had serious objections. The state government wanted to appoint Singh but could not do so because of the opposition of the top judge. Six meetings of the committee took place and the chief justice was kept out. The state government also got the statute amended and got the chief justice removed from the committee but the governor’s assent is awaited.

The stalemate continued and the directions of the apex court were consistently flouted. The legal course for the court was to punish the guilty for contempt. Instead, it adopted an outlandish method and appointed Singh on its own but was forced to recant subsequently. The court should severely punish those guilty of misleading it that there was unanimity on the name of Singh.

The court invoked its power under Article 142 of the Constitution which confers upon it the power to do “complete justice”. The constitutional rationale trotted out by the court for the extraordinary step taken by it is the failure of the constitutional functionaries - the chief minister, the leader of the Opposition and the chief justice of the Allahabad HC, who comprise the committee that selects the Lokayukta, to comply with its orders.

However, the invocation of Article 142 for appointing Lokayukta which falls within the exclusive domain of the executive raises serious constitutional questions. The power bequeathed under Article 142 is unique, given to the apex court as a matter of safety valve so that if need be it can give extraordinary relief not even prayed for in some rare cases. For the first three decades, it was invoked in cases few and far between. However, subsequently, its liberal interpretation by the court has spawned fierce controversy with respect to the power conferred by it.

Complete justice
Article 142(1) reads: “The Supreme Court in the exercise of its jurisdiction may pass any decree or make such order as is necessary for doing complete justice in any cause or matter pending before it…” The words “in the exercise of its jurisdiction” make it abundantly clear that the power given under this article does not confer any extra jurisdiction.

However, the interpretation of Article 142 has been inconsistent and mercurial. As far back as in 1954, Justice Vivian Bose, in Virendra Singh v State of UP, interpreted the constitutional provision in these eloquent words: “We have upon us the whole armour of the Constitution and walk henceforth in its enlightened ways, wearing the breast plate of its protecting provisions and flashing the flaming sword of its inspiration.” In K M Nanavati v State of Bombay (1961), the SC held that Article 142 contains no words of limitation.
However, in Prem Chand Garg v Excise Commissioner (1963), a constitution bench of the court made it abundantly clear that it cannot pass an order inconsistent with the express provision of any statute. A larger bench of seven judges in A R Antulay v R S Nayak (1988) endorsed the position that substantive law cannot be superseded.

But in Delhi Judicial Service v State of Gujarat (1991), the SC ruled that its powers are not fettered by provisions of statutory laws. In Union Carbide Corporation v Union of India (1991), the SC took recourse to this article for upholding the settlement between the Union of India and the UCC which, among others, terminated all civil and criminal proceedings pending before any court.

Nevertheless, the court again realised its limitations that it cannot gloss over an express provision of law in Supreme Court Bar Association v Union of India (1998) when it held that it could not suspend the license of a lawyer while punishing him for the contempt of court as this power was specifically vested in the Bar Council.

Again, in Laxmidas Morarji (Dead) by LRS v Behrose Darab Madan (2009), the court made it clear that the constitutional power conferred upon it under Article 142 of the Constitution has to be used sparingly though the same is not restricted by any of the statutory enactments. The court clarified that acting under Article 142, it cannot pass an order or grant relief, which is totally inconsistent or goes against the substantive or statutory enactments pertaining to the case.

The SC has itself held the separation of powers to be a basic feature of the Constitution. But there are cases of overreach by the court. Justice Frankfurter of the US Supreme Court, in Trop v Dulles (1958), observed, “All power is, in Madison’s phrase, of an encroaching nature. Judicial power is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self-restraint.”