The weeks before the Supreme Court closes for vacations usually sees a flurry of judgements, and this time was no different. However, what was interesting was the court’s wide use of a controversial provision of the Constitution in deciding cases ranging from the release of A G Perarivalan (a convict in the Rajiv Gandhi assassination case) to the revival of 90,000 income tax notices that had been struck down by the High Courts. This power was also invoked to issue directions to the police to treat sex workers with dignity and afford them the protection of law. In all these cases, the court referred to Article 142 of the Constitution -- a provision that allows the court to exercise its powers to do “complete justice” in any matter before it.
But what is “complete justice”?
This is a term that has caused much controversy over the years in its interpretation, but that was not the case in the Constituent Assembly. Article 142, as we know it, was introduced and adopted without much discussion on May 27, 1949. It was referred to during a discussion on the Supreme Court’s jurisdiction to hear appeals by Thakur Das Bhargava, who believed that “complete justice” meant deciding cases not just in accordance with the law but also the principles of ‘natural justice’. During a debate on June 6, 1949, he explained:
“What is this ‘natural justice’? This ‘natural justice’, in the words of the Privy Council, is above law, and I should like to think that our Supreme Court will also be above law in this matter, in this sense that it shall have full right to pass any order which it considers just.”
The Supreme Court’s predecessor, the Federal Court, set up under the Government of India Act, 1935, had no such power to do “complete justice”, except during a few months in the transition to the current Supreme Court. And such a power had never been exercised by any court in India when the Supreme Court was vested with it. The closest provision that gives the court such wide powers may be Section 151 of the Code of Civil Procedure, 1908, but that is limited to only civil cases and only to the extent that the Code itself does not provide for something to that effect.
Which still leaves us with the question, what does “complete justice” mean?
Over the years, furious debates have taken place over this issue -- does it mean the power to fill in gaps in the law, or does it mean even the power to override the law, in the interests of justice?
There are no simple answers, and the court itself has veered from one end to the other in the last few decades. Interpreting “complete justice” very widely means that the court is giving itself law-making powers, as though it is exercising the divine right of a king. Interpreting it too narrowly would mean that the court could allow the law to become an instrument of tyranny and not justice.
This idea of “complete justice” raises tough questions when the court chooses to exercise this power in cases on a regular basis. Even apart from the cases mentioned earlier, the court has used this power in a wide range of cases, from granting divorce to couples whose marriage has “broken down irretrievably” (though such a ground for divorce is not available in the law) all the way to making appointments to tribunals to reduce pendency.
None of these uses of Article 142, however, proved as controversial as the court’s judgement in 1989 in which it allowed Union Carbide Corporation and its officers to avoid all civil and criminal liability for the Bhopal Gas Tragedy after paying $470 million to the Indian government. The decision was seen as a betrayal of the victims and so criticised that the court itself was forced to re-examine the order and, in 1991, re-start the criminal proceedings, though it refused to re-look the settlement of the civil suits.
Were the framers of the Constitution wrong to have given such a wide power to the Supreme Court? Perhaps not. It is the obligation of every constitutional institution to use whatever powers it’s given responsibly. To quote Isabella from Shakespeare’s Measure for Measure, “O, it is excellent to have a giant’s strength. But it is tyrannous to use it like a giant.”