Article 142

Article 142 of the Indian Constitution, found in Chapter IV of Part V, grants the Supreme Court extensive authority for administering complete justice, known as plenary power. It gives the Court the discretion to issue orders deemed necessary for justice in any pending matter, embodying the spirit of judicial activism. This allows the Supreme Court to do its job as the guardian of the Constitution. Article 142 has seen increased usage in recent years, raising concerns about the lack of uniform rules governing its application. While the power has two main aspects – achieving complete justice and addressing legislative gaps – its broad nature allows the Court to issue case-specific orders. However, critics call for judicial restraint due to the undefined nature of complete justice, which can lead to discretionary misuse. Such concerns highlight the potential for judges to overreach into legislative functions, emphasising the need for a clear framework to avoid excessive interpretation or lawmaking.

Judicial Activism: it denotes a concept where judges go beyond the mere application of laws and interpret them taking into account the wider societal implications of laws. In simple words judicial activism comes into play when the judiciary intervenes to scrutinise executive actions, guaranteeing the protection of individual’s rights and also ensuring socio-economic justice. Judicial activism plays a very important role in allowing judges to act in their own discretion in matters where the legislation is silent or has proven ineffective. These provisions are given in the Indian Constitution in Article 142 (Power to Do Complete Justice), Article 32 (Power to Issue Writs), Article 141 (Supreme Court’s decisions to be binding on all courts in India) and Article 136 (Special Leave Petition).

Judicial Restraint: Judicial restraint is the opposite of Judicial activism. It urges the judges to limit the use of their powers and discretions under law and avoid the introduction of personal feelings or preference into legal proceedings. Different from judicial activism, judicial restraint supports the ordinary political process. This approach promotes democratic governance by leaving policy decisions to policymakers. Essentially, judicial restraint highlights the need for caution in judiciary’s role. Judges should stick to interpreting laws and keep their involvement limited to what is necessary. In essence, the court should avoid unnecessary interference with the government's functioning.

Article 142 is contained in Chapter IV of Part V of the Constitution of India. It grants the Supreme Court of India unlimited authority to administer complete justice. This order would be applicable throughout the territory of India. This power is known as the “plenary power” of the Supreme Court. It gives the supreme court discretionary power to pass any order that it deems fit or necessary for complete justice in any matter pending before it. It can be said that Article 142 contains the spirit of judicial activism within it. Article 142 was enacted by the constituent assembly on 27.05.1949.

In recent years usage of Article 142 has increased for deciding cases. This frequent invocation of Article 142 of the Constitution is not based on a uniform set of rules for its application. Due to this many experts have called for Judicial restraint in the “unlimited power” given to the Supreme Court in Article 142.

The Supreme Court usually uses its special authority under Article 142 in two ways: to achieve ‘complete justice’ or to address ‘legislative gaps’. There are three aspects to the power of the Supreme Court under Article142:

• Plenary Power: gives the Supreme Court broad powers to issue orders or decrees for doing complete justice in any case before the Court. This power allows the court to address issues without any limitation of law.
• Equity: it is employed when the strict application of law is insufficient for a fair outcome. These provisions ensure the delivery of complete justice and fairness. This power is used where the law does not provide a remedy on a matter. E.g. in the Union Carbide Case where the court awarded increased compensation to victims of the Bhopal Gas tragedy by going above what is given in the law.
• Broad Justice: since the power under Article 142 is wide in nature it enables the supreme court to issue orders which are specific for each case and do complete justice.

Article 142 has been made with the intention of satisfying circumstances that cannot be addressed with the legal provisions under laws of land. Article 142(1) embodies the concept of ‘complete justice’ marked by flexibility. This adaptability is put in place to handle the complexities of humans and laws. The power under this Article allows it to issue a variety of orders within the legal framework.

while the powers given to the Supreme Court under Article 142 are vast, many have called for exercise of judicial restraint while exercising these powers to prevent judges overreaching to the legislatures’ field and start making laws rather than interpreting them. Judicial restraint should be exercised while exercising powers under Article 142 for the following reasons:

• “Complete Justice” not defined: the term complete justice under Article 142 is not defined and its meaning is unclear because of this the term has been interpreted differently depending on the facts of each case. This lack of clarity has been criticised by experts as it leaves room for discretion and misuse of powers.
• Potential of Judicial Overreach: The judges wield a lot of power and they have a lot of discretion, it becomes easy and even inadvertent to start making laws. In India there is no defined framework for judiciary. In certain cases judges can give excessive interpretation or start making laws which goes against the principle of separation of powers.
• Unrestricted Powers: There is no accountability mechanism to this provision except inherent judicial restraint.

• To address the legislative gaps. For Example, The Vishaka Guidelines for preventing sexual harassment at the workplace were formulated under Article 142 in the absence of specific legislation at the time.
• To provide immediate relief such as in Union carbide case and many environmental cases.
• To solve the complex and multifaceted religious issues. For example, The Supreme Court used Article 142 in the Ayodhya land dispute case.
• To introduce Judicial or administrative reforms. For Example, In the Union of India vs. R. Gandhi case, the Court used Article 142 to create an institutional mechanism for the appointment of members to the National Company Law Tribunal

• Shilpa Sailesh Vs Varun Sreenivasan (2023): the Hon’ble Supreme Court held that the court possesses authority to dissolve a marriage through issuance of a divorce decree by mutual consent and it is not obligated to adhere to strict procedural requirements, if certain conditions are fulfilled. It also held that under Article 142 it also has the power to grant divorce of ‘irretrievable breakdown of marriage’.
• Ram Janmabhoomi-Babri Masjid Dispute (2019) : In this historical case, Article 142 was invoked by Supreme Court aiming to provide complete justice by allocating the disputed land in Ayodhya for the construction of a Rama temple and also directing the government to provide an alternative land for the construction of a mosque.
• Jubilee Hills Co-op House Building Society Case (2006): Supreme Court said that while delivering justice to someone under Article 142, another person, not a party to the Case, should not be prejudiced. No injustice on someone else can be incidentally done through the powers under Article 142.
• Union Carbide / Bhopal Gas Tragedy Case (1998): The Supreme Court used Article 142 in this case to give relief to the people affected by the gas leak caused by the Union Carbide plant. The court granted a compensation of $470 million to the victims stating that, for the sake of achieving ‘complete justice’ it had the authority to override the laws enacted by the Parliament.
• Supreme Court Bar Association Case (1998): Court stated that Article 142 should not be used to override legislative intent. It is mostly curative in nature to deliver justice to a litigant who has slipped through the cracks. It is not a sanction to ignore or bypass existing laws.

Article 142 of the Indian Constitution gives the Supreme Court special power to issue orders for doing ‘complete justice’ for the public at large. However, the judgements given by the Apex Court have created some confusion. The best way forward would be to formulate elaborate guidelines on the use of the powers under this Article, such guidelines should be made while keeping in mind the principles of separation of powers and judicial restraint. However, such guidelines should also give room for judicial activism in certain cases as it has been seen in the past that judicial activism has indeed been a tool for social justice.