What is Article 142?
Article 142(1) empowers the Supreme Court to pass any "decree or order as it is necessary for doing complete justice in any cause or matter pending before it." The Constitution notably does not define what constitutes "complete justice" or specific circumstances for its use.
Article 142(2) empowers the Court to secure attendance of persons, discovery/production of documents, investigation, and punishment for contempt, subject to laws made by Parliament.
Historical Origins
- Traces roots to Section 210 of the Government of India Act, 1935
- Earlier colonial-era practices of resolving disputes based on "justice, equity and good conscience"
- Adopted by Constituent Assembly in 1949 as Article 118 without formal debate
- Two proposed amendments were moved and subsequently withdrawn
Significant Historical Invocations
| Case | Year | Context |
|---|---|---|
| Bhopal Gas Tragedy | 1989 | Approved USD 470 million settlement; quashed criminal proceedings against Union Carbide |
| Vishaka Guidelines | 1997 | Laid down guidelines for workplace sexual harassment (binding until PoSH Act, 2013) |
| Ayodhya Title Dispute | 2019 | Settled dispute on "preponderance of probability"; directed 5 acres land to Sunni Waqf Board |
| A.G. Perarivalan | 2022 | Ordered release of convict under Article 142 |
Statistics: An IIM Ahmedabad study found 1,579 references and 791 direct invocations between 1950-2023.
SC Attempts to Limit Powers under Article 142
Prem Chand Garg vs. State of Uttar Pradesh (1962)
- Orders under Article 142 must align with Fundamental Rights and existing substantive law
Supreme Court Bar Association vs. Union of India (1998)
- Constitution Bench clarified: Article 142 is meant to supplement statutes by filling gaps, not supplant existing statutory framework
Key Concerns Regarding Article 142
1. Circumventing Statutory Schemes
- Quashing FIRs en masse bypasses individual scrutiny under Section 528 of BNSS, 2023
- Critics argue using Article 142 for "convenience" supplant legislative procedure
2. Undefined and Unfettered Discretion
- Absence of precise "complete justice" definition enables broad judicial discretion
- No external accountability mechanism
3. Polyvocal Court Issues
- Supreme Court has 38 judges sitting largely in Division Benches of two
- Outcomes may depend on individual philosophy of specific benches rather than institutional consistency
4. Separation of Powers Concerns
- Court entering traditionally legislative/executive domains
- Highway Liquor Ban case: Court prohibited liquor shops within 500m of National Highways despite state governments not issuing similar notifications
5. Lack of External Checks
- Limitations entirely self-imposed by judiciary
- No institution outside Court can enforce established guardrails
Global Perspective
| Country | Provision | Key Feature |
|---|---|---|
| South Africa | Section 172(1)(b) | Courts can make "any order that is just and equitable" |
| Canada | Section 24(1) of Charter | Grant "appropriate and just" remedies for constitutional violations |
Way Forward
- Larger Benches: Restrict invocation to Constitution Benches of at least 5 judges
- Mandatory Reasoning: Every exercise must have reasoned orders with principle of proportionality
- Strict Adherence to Precedent: Institutionalize Supreme Court Bar Association principles
- Last Resort Principle: Use as curative tool, not shortcut to bypass established procedures
Related Constitutional Provisions
- Article 32: Right to constitutional remedies (Supreme Court's original jurisdiction)
- Article 136: Special leave to appeal
- Article 226: High Courts' power to issue writs
- Basic Structure Doctrine: Separation of powers as part of basic structure
- Section 528 BNSS, 2023: High Courts' inherent powers to quash FIRs