Wednesday Post

An irretrievable breakdown of marriage has not been given legal backing as a ground for granting a divorce, although since 1978 law commission is requesting to amend the law to include this situation as a ground for granting the divorce. It is the Supreme Court (SC) that has become the last resort for aggrieved spouses to get the marriage dissolved and SC has over the years invoked its special power under Article 142 of the Constitution to grant a divorce in cases where marriages have broken beyond repair. Recently SC brought to an end a decade and half old protracted legal battle by a spouse to dissolve the marriage which had not even taken off with the wife deserting the husband,  on the same day after the marriage. SC invoked its power under Article 142 to do justice and granted divorce as the husband and wife had been living separately for the last 16 years and the marriage was virtually dead.

Now what is Article 142

“142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc.-

(1) The Supreme Court in the exercise of its jurisdiction may 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 so passed or orders 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 provision in that behalf is so made, in such manner as the President may by order prescribe.

(2) Subject to the provisions of any law made on this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”

It seems that our constitution has given a very powerful tool to SC for complete justice in any case or matter.

Here are few landmark cases where SC has used Article 142 to do complete justice

1Ayodhya  Case

SC invoked this article while passing a unanimous judgment on the Ayodhya case wherein the bench handed over the disputed land of 2.77 acres to a trust to be formed by the central government within three months for the construction of a temple, under the Acquisition of Certain Area at Ayodhya Act, 1993. Another 5 acres of land was allotted for the construction of a mosque in Ayodhya

SC described its power under Article 142 and said- “The phrase ‘is necessary for doing complete justice’ is of wide amplitude and encompasses a power of equity which is employed when the strict application of the law is inadequate to produce a just outcome. The demands of justice require close attention not just to positive law but also to the silences of positive law to find within its interstices, a solution that is equitable and just. The legal enterprise is premised on the application of generally worded laws to the specifics of a case before courts.”

2 Bhopal Gas Tragedy Case

In 1989, SC invoked Article 142 during the infamous case of Union Carbide and provided relief to the thousands of people who were affected during the black night of Bhopal Gas Tragedy. In the said judgment, SC while awarding the compensation of $470 million to victims observed that to do “complete justice” could even override the laws made by Parliament. The specific part of the judgment is hereunder

“prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142……..But we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of ―” complete justice” of a cause or matter, SC will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the powers of the Court under Article 142, but only to what is or is not ‘complete justice‘ of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise.”

The above-mentioned statement of SC placed itself above the laws made by Parliament or the legislatures of the States.

3 Coal Block Allocation Case

SC used the said provision of the constitution again in 2014 to cancel the allocation of coal blocks granted from 1993 onwards without any guilty of wrongdoing and imposed a penalty of Rs 295 per tonne of coal already mined. SC did not hear individuals and their particular facts, but only their associations were heard.

4 Sale of Liquor/Alcohol Banned on State And National Highways

In December 2016 the Hon’ble Supreme Court invoked Article 142 for banning the sale of alcohol and ensure that liquor vends are not visible or directly accessible from the highway within a stipulated distance of 500 meters form the outer edge of the highway, or from a service lane along the highway. As per SC, such a decision was taken to avoid accidents due to drunk and drive.

The above-mentioned are very important judgments wherein SC invoked Article 142. In these judgments SC tried to explain the phrase complete justice, However, to the general public, it might seem that the use of Article 142 is being used to fill the lacuna of the law. The judgment on the sale of liquor (case 4 above) actually affected many hotels, bars, restaurants, and liquor shops which resulted in unemployment. I think, later this law was amended which excluded hotels, bars, and restaurants situated on highways within limits of City/Town.

In the end, it is true that Article 142 has been invoked for the purpose of doing complete justice at a large scale to the different sections of the population. But, still, the judgments passed by SC have created a lot of confusion and there is no clarity about when to invoke this provision.  There should be some strict guideline that justifies the use of Article 142, which ensures that it would be complete justice without affecting the society. Presently it is the privilege of the justices of SC, in which case they can invoke this article.

Waiting for your comments on this blog.

Anil Malik

Mumbai, India

15^th September 2021.