Rationalising “Complete Justice” under Article 142

This article traces the origins of Article 142 of the Constitution of India, the etymology of the phrase “complete justice” and the underlying inspiration it draws from a concept of British Indian vintage-justice, equity and good conscience. Article 142 has been employed by the Supreme Court in myriad situations. The Court has deliberately left its contours undefined, so as to allow for flexibility to deal with future exigencies. This article argues that though the power should indeed remain undefined, when invoked in derogation of statutory provisions or dehors the statutory regime governing a situation, it must necessarily be accompanied by the formulation of a principle or spelling out of a rational justification, which will operate as a precedent. This alone will lead to rationalising its use and negate the uncertainty associated with its exercise in this manner.

Paradoxically, the greatest danger to the administration of justice and constitutional interpretation arises from the genuine desire of Judges to do justice in each individual case.”

— H.M. Seervai1

 

INTRODUCTION

Article 142 of the Constitution of India, which by its phraseology is a seemingly benign procedural adjunct to the Supreme Court’s powers, has emerged as the most potent devices employed by the court in judicial activism and judicial innovation. It has in fact become a new source of substantive power.2 This article traces its origins, evolution, and then recounts the debate surrounding its use in derogation of express statutory provisions. This power has been exercised in varied situations but, broadly speaking, in two manners: the first being to grant relief to do “complete justice” in a given case dehors the applicable statutory provisions and second, to issue directions to fill, what the court perceives as “legislative gaps”, which directions operate as the law of the land until such time that the legislature or the executive steps in.

 

The focus of this article is on the former of the two exercises. While tracing such exercise in the context of equity jurisdiction to “particular equity”, and justifying such exercise, this article only takes exception to the Court’s practice of expressly adding that the relief it has granted in a specific case is not to be treated as a precedent. While it is elementary that a judgment is a precedent only to the extent of its ratio decidendi (and not every direction or observation), the final court of the country, that declares law under Article 141 of the Constitution, ought to be obligated to supply a rational justification for its directions aimed at doing “complete justice”.

 

Granting relief or issuing directions without any reasoning or spelling out the underlying basis, rationale or principle, for posterity, not only does violence to the doctrine of precedent, but also introduces an element of uncertainty in the judicial process. This uncertainty has a bearing on: (i) how citizens conduct themselves, including in adhering to the statutory law, (ii) also what outcome their litigation will have and above all (iii) the deference shown by parties to judicial directions i.e. their compliance. Such unreasoned orders, which are statedly contrary to the statutory law, also obscure the legal standards and mandates that are otherwise devoid of any ambiguity as to their manner of compliance. For a litigant, this uncertainty translates into an exercise of chance, which inherently breeds more speculative litigation, adding to the already overburdened docket of the Supreme Court.

 

Hence, while it is not advisable and perhaps impossible to give an all-encompassing normative prescription for the manner of and circumstances for the exercise of the power under Article 142, particular equity cannot be countenanced in the absence of underlying reasoning, basis or principle, whether pre-existent or otherwise.

 

LEGISLATIVE HISTORY

Article 142 unlike a host of other provisions in the Indian Constitution, was not inspired by a foreign constitutional provision. Only Bangladesh3 and Nepal4 have similar provisions in their respective Constitutions,5 which can be attributed to the fact that they were drafted much after and were inspired by the Indian Constitution in this regard.

 

Article 142 in its present form did not find a place in the draft Constitution prepared by the constitutional advisor to the Constituent Assembly, Sir B.N. Rau. Sir Alladi Krishnaswami Ayyar appears to have sowed the seeds for it, when, while commenting on the draft, he drew attention to the fact that the Federal Court could only make declarations leaving it to the High Court to pass effective decrees.6 He thus suggested the insertion of a provision to enable the Supreme Court to itself pass effective decrees.7 On 13-12-1947, the words “any order as is necessary for doing complete justice” appeared for the first time, when a draft Article 100(1) was suggested and recorded8 in the minutes of the Drafting Committee, which read:

 

The Supreme Court in exercise of its jurisdiction may pass any decree or make any order as is necessary for doing complete justice in any cause or matter pending before it, and any decree passed or order made by the Supreme Court shall be executable throughout the territory of India.

(emphasis supplied)

 

On 14-12-1947, this clause was retained by the Drafting Committee as draft Article 99(1), and eventually on 21-2-1948, when Dr B.R. Ambedkar submitted the Draft Constitution to the Constituent Assembly, it found a place therein as draft Article 118(1). There is interestingly no debate of the Constituent Assembly specifically relatable to this provision. However, the phrase “complete justice” did find a place in the speech of Sir Alladi Krishnaswami Ayyar on 6-6-1949 albeit in the context of Article 112 (which was a precursor to the eventual Article 136):

 

… If only we realise the plentitude of the jurisdiction under Article 112, if only, as I have no doubt, the Supreme Court is able to develop its own jurisprudence according to its own light, suited to the conditions of the country, there is nothing preventing the Supreme Court from developing its own jurisprudence in such a way that it could do complete justice in every kind of cause or matter.9

(emphasis supplied)

 

Though, this provision did not have a counterpart in the Government of India Act, 1935,10 the language used in it bears a striking similarity to that used in Section 4 of the Provincial Insolvency Act, 1920 to the extent of the words “for the purpose of doing complete justice”. The semblance in the wording of Article 142 and this provision has been noticed by the Bombay High Court.11

 

The marginal note of Article 142 reads — “Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.,” which appears to have been based on Section 210 of the Government of India Act, 1935 that dealt with the Federal Court’s 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 court”.12 The phraseology of the marginal note has prompted some to contend that the provision merely deals with procedural matters.13 However, it is well settled that the heading prefixed to a section cannot control the plain words of the provision.14 Thus, the use of the phrase “complete justice” cannot be wished away on account of the marginal note to Article 142, especially since there is a marked departure in Article 142 from Section 210 of the Government of India Act, 1935: the deliberate use of language wide enough to confer powers beyond the limited procedural functions that were envisaged for the Federal Court. Besides, the only relevant speech in the Constituent Assembly involving the phrase “complete justice” suggests the development of jurisprudence leading to administering complete justice, which dissuades against an interpretation restricting it to only procedural matters.

 

The use of the term “complete justice” in Article 142 appears to have been inspired by its usage in British India i.e. justice administered by a court of equity. A Full Bench of the Calcutta High Court in Rambux Chittangeo case15 used it to denote fuller justice “for which it is frequently necessary to seek the assistance of a court of equity” in contradistinction to what it described as “partial justice”, which is administered in the courts of law. Thus, at the root of this Article is the concept of equity.

 

EQUITY AND ITS KINDS

In nearly all legal systems, a discretionary or moderating influence has been superadded by courts to the rigour of formulated law, loosely referred to as equity.16 In England, it took the form of a distinct system of law or body of principles originating in the English Court of Chancery. Expectedly, the parallel systems of equity and the common law competed against each other and clashed, leading up to the Oxford (Earl of) case17, touted as a political battle between the Lord Chancellor and the Lord Chief Justice18, who headed the courts administering equity, and law (a collective term for common and statute law) respectively. Eventually the two jurisdictions were statutorily fused by the Judicature Act, 1873 which also recognised the primacy of equity over common law in the event of a conflict, and which continues to find place in Section 49 of the Senior Courts Act, 1981 (U.K.) which provides that “wherever there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail”.

 

Sir C.K. Allen has, in his celebrated work, Law in the Making,16 classified equity into two principal forms: (1) a liberal and humane interpretation of law in general, so far as that is possible without actual antagonism to the law itself — called equity in general; (2) a liberal and humane modification of the law in exceptional cases not coming within the ambit of the general rule — called particular equity.19 In other words, invocation of equitable principles while not derogating from statutory law is “general equity”, and doing so while ignoring or overriding the statutory law would be “particular equity”. While the former, as a judicial attitude of mind, is comparatively easy to adopt; the latter is more difficult because it is not always possible or desirable to relax a sound rule out of compassion for an unfortunate litigant.20 Not surprisingly, the latter is not prevalent in contemporary legal systems, though an exception might be the International Court of Justice where principles of equity in the sense of fairness, justice and reasonableness not only play a subsidiary role in supplementing existing rules but under Article 38(2) of the Statute of the ICJ, it additionally has the power “to decide a case ex aequo et bono, if the parties agree thereto” i.e. the court may apply equity in precedence over all other rules.21

 

Courts in India have been employing “equity in general” before and after independence. The Supreme Court of India has interpreted its powers under Article 142 to expressly include “particular equity”, thus perhaps being one of the only contemporary courts employing both forms of equity.

 

“EQUITY IN GENERAL” IN INDIAN LAW

Of the two principal forms of equity mentioned by Allen, the former has been in vogue in India, even before its independence, since what was applied then was common law as liberalised by equity.22 “Equity and good conscience” had first appeared in the Charter of 1683, promulgated by Charles II, but this was confined to the East India Company’s own people.23 A Regulation made in 1781 provided that in all cases for which no specific directions exist, the Judges would have to act according to “justice, equity and good conscience”.24 A similar provision was contained in Regulation III of 1793,25 Regulation VIII of 1795, Regulation VII of 183026 and Regulation II of 1872 apart from a host of other enactments of the time.27 Section 3 of Regulation VIII of 1795, probably best represents the hierarchal position that the concept held at the time:

 

The law to be observed in the trial of suits shall be Acts of Parliament and Regulations of Government applicable to the case; in the absence of such Acts and Regulations, the usage of the country in which the suit arose; if none such appears, the law of the defendant; and in the absence of specific law and usage, —justice, equity, and good conscience alone.25

(emphasis supplied)

 

Thus, it seemingly provided for invoking equitable principles in the face of a legislative or customary vacuum. However, the only “justice, equity, and good conscience” that the English Judges could and did administer, in default of any other rule, was so much of English law and usage as seemed reasonably applicable in the Indian context.23 The Privy Council acknowledged in Waghela Rajsanji v. Sk. Masludin28 that it was generally interpreted to mean the rules of English law, if found applicable to Indian society and circumstances. This, only too often led to an exact reproduction and not a careful adaptation of English law.29 The Supreme Court too has recently, in M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das30, observed that these principles were conflated for English law.

 

Post-Independence, in Rattan Lal v. Vardesh Chander31, the Supreme Court observed that “justice, equity and good conscience” comes into play in the absence of any specific legislative provision. In Sarla Mudgal v. Union of India32, the concept was applied in terms while dealing with a case involving conversion by a Hindu to Islam, only so as to enter into a bigamous marriage. The Court held that the second marriage was void since it would otherwise be “giving a go-by to the substance of the matter and acting against the spirit of the statute if the second marriage of the convert is held to be legal” and that the second marriage would be “violative of justice, equity and good conscience”. In Indian Council for Enviro-Legal Action v. Union of India33, the Supreme Court invoked the term to justify the imposition of punitive costs to ensure that the legal process is not abused by litigants in any manner and also for the imposition of compound interest where there was such an abuse. In Union of India v. I.M. Lal34, the Delhi High Court held that principles of private international law or conflict of laws were applicable to India on account of this concept. Understandably, the phrase “justice, equity and good conscience” in the prayer clause of a writ petition is standard form in India.

 

The wide phrasing of Article 142 is very likely an embodiment of the concept of “justice, equity and good conscience”. The linkage between this concept and Article 142 has now been acknowledged in M. Siddiq35, while observing that the concept, as a tool to ensure a just outcome, has found expression in Article 142 of the Constitution.

 

Before Independence, equitable rules and doctrines were also statutorily incorporated in the Specific Relief Act of 1877, the Indian Trusts Act of 188236 and the Transfer of Property Act, 1882. In Bai Dosabai v. Mathurdas Govinddas37, the Supreme Court observed that where a question of interpretation of such equity-based statutory provisions arose, it would be justified in seeking aid from the concept of equity as a source. Similarly, the Bombay High Court38 refused to recognise a constructive trust in view of the repeal of Section 94 of the Indian Trusts Act and held that it would be transgressing the limits of its powers to seek assistance from an equitable principle originating in England, in the absence of a statutory provision for its basis. This judgment though has been overruled by the Supreme Court in Janardan Dagdu Khomane v. Eknath Bhiku Yadav39, holding that the repeal of Section 94 of the Act does not put any fetter in declaring a trust, even if the situation falls outside the purview of the Act and the court’s jurisdiction for this purpose can be derived from Section 151 of the Code of Civil Procedure, apart from Section 88 of the Act. Nonetheless, many other equitable doctrines relating to conduct of parties, such as clean hands,40 laches,41 promissory estoppel42 and waiver43 are regularly employed by the courts in India, even where statutes incorporating equitable principles are not involved.

 

In Babaji Kondaji Garad v. Nasik Merchants Coop. Bank Ltd.44, the Supreme Court invoked the rule of interpretation called “the equity of the statute”, which it noted had fallen into disuse by that nomenclature, but continued to be in vogue in the form of the rule in Heydon’s case45 or the mischief rule of interpretation. This is a rule of statutory construction by which a statute should be interpreted by first identifying the problem or mischief that the statute was designed to remedy and then adopting a construction that will suppress the problem and advance the remedy.46

 

Apart from the statutory incorporation of equitable principles, two statutory provisions clearly authorise effecting “equity in general”: one is Section 151 of the Code of Civil Procedure, 1908 (“CPC”) and the other is Section 482 of the Code of Criminal Procedure, 1973 (“CrPC”). While the former uses the words “such orders as may be necessary for the ends of the justice or to prevent abuse of the process of the court”, the latter uses the words “such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice”. The phrase “ends of justice” in the aforesaid provisions has been held to refer to the best interest of the public within the four corners of the statute.47

 

In Padam Sen v. State of U.P.48, it was held that the power under Section 151 CPC can be exercised only when there is no possible conflict with what has been expressly provided in the Code. For instance, the power cannot be used to extend the period of limitation on the ground of equity or justice.49 In K.K. Velusamy v. N. Palanisamy50, while summarising the position, it was reiterated that a court has no power to do that which is prohibited by law or the Code, and that the court cannot make use of this power, where the remedy or procedure on a particular aspect is provided in the Code.

 

In Madhu Limaye v. State of Maharashtra51 it was held that Section 482 CrPC is not to be resorted to if there is a specific provision in CrPC for the redressal of the grievance of the aggrieved party or an express bar of law engrafted in any other provision of the said Code. In State of Punjab v. Davinder Pal Singh Bhullar52, it was held that an order under Section 482 cannot be made in circumvention of the procedure prescribed by law. In Gian Singh v. State of Punjab53, the Supreme Court was dealing with the question as to whether it can quash criminal proceedings for non-compoundable offences on the basis of a compromise between the parties. While observing that the words, “nothing in this Code” in Section 482 CrPC, meant an overriding provision, the Supreme Court yet maintained that this power is not to be resorted to if there is a specific provision in the Code on an aspect. The Court eventually held that compounding and quashing were distinct remedies, and hence an offence being non-compoundable would not come in the way of invocation of Section 482, as long as the crime involved was not heinous.

 

Apart from interpreting Section 151 CPC and Section 482 CrPC, to encompass only “equity in general”, the Supreme Court has also drawn a distinction between the powers under these provisions and that under Article 142,54 and has also held that High Courts do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution55, implying that they cannot do so even under Article 226.

 

“PARTICULAR EQUITY” UNDER ARTICLE 142

While classifying the two principal forms of equity, Sir C.K. Allen describes “particular equity” to be tougher to adopt for the challenges it brings with it. No wonder, much of the judicial debate on Article 142 has revolved around whether it can be employed in a manner as to override statutory provisions i.e. to do “particular equity”. Till 1998 there were arguably two distinct lines of judgments, with the Court having exhibited a wavering attitude2 in this context.

 

In Prem Chand Garg v. Excise Commr.56, a Constitution Bench held that this power cannot be employed to make an order plainly inconsistent with express statutory provisions of substantive law, much less, inconsistent with any constitutional provisions.57 But an 11-Judge Constitution Bench, in Golak Nath v. State of Punjab58, while invoking the doctrine of prospective overruling for the first time, took a contrary view and held that this power was wide and elastic, and enabled the Court to “formulate legal doctrines” to meet the ends of justice and the “only limitation thereon is reason, restraint and injustice”. Thereafter, a Constitution Bench of 7 Judges in A.R. Antulay v. R.S. Nayak59, without noticing the views expressed in Golak Nath58, once again held that however wide and plenary the language of the Article, its exercise could not be inconsistent, repugnant or violative of specific provisions of any statute. A 3-Judge Bench in Delhi Judicial Service Assn. v. State of Gujarat60, took a more nuanced approach and held that no statute can limit or restrict this power, though while exercising this power, the Court must take into consideration the statutory provisions regulating the matter in dispute. This nuanced approach was further refined by a 5-Judge Bench in Union Carbide Corpn. v. Union of India61, while holding that criminal proceedings involving non-compoundable offences could be quashed under Article 142, if a settlement had been reached between the parties.62 In doing so, it held that prohibitions, limitations or provisions contained in ordinary laws cannot, ipso facto, act as restrictions on the constitutional powers under Article 142; but they could operate as limitations if based on some underlying fundamental and general issues of public policy, as opposed to merely being incidental to a particular statutory scheme or pattern.63 In other words, the court 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.

 

In DDA v. Skipper Construction Co. (P) Ltd.64 it was held that the power is meant to supplement the existing legal framework and not to supplant it, and thus the Court would respect a statute, but the absence of a statute or statutory provision will not inhibit it from making orders under Article 142. In Mohd. Anis v. Union of India65, while holding that the court could direct investigation by the Central Bureau of Investigation in any State without the State’s consent otherwise required under Section 6 of the Delhi Special Establishment Act, 1946, it was observed that statutory provisions cannot override Article 142 since it was a constitutional provision. In N.A. Mohammed Kasim v. Sulochana66, the Court invoked the power to grant equitable relief to a party not on the ground on which they claimed the relief in the suit but on the ground of promissory estoppel, equity and fair play.

 

The aforesaid conflicting views came to be reconciled with the decision in Supreme Court Bar Assn. v. Union of India67, where a 5-Judge Constitution Bench considered most of the case law on this provision till then and held that the observations in Union Carbide61, A.R. Antulay59, and Delhi Judicial Service Assn.60 do not conflict with those in Prem Chand Garg56. It explained that it is one thing to say that “prohibitions or limitations in a statute” cannot come in the way of exercise of Article 142, but quite a different thing to say that the Court can altogether ignore the substantive provisions of a statute.68 The Court also cautioned that it cannot ignore the substantive rights of a litigant and this power “cannot be used to build a new edifice where none existed earlier”.69 It observed that “ordinarily” it cannot disregard a statutory provision governing a subject, except perhaps to balance the equities between the conflicting claims of the litigating parties by ironing out the creases in a cause or matter before it. It also added that such power cannot be exercised “directly in conflict” with what has been provided for in a statute dealing expressly with the subject.70

 

A 3-Judge Bench in Samaj Parivartana Samudaya v. State of Karnataka71, while analysing the dicta in Supreme Court Bar Assn.67 held that it did not mean that the court would remain “entrapped” within the confines of any of the relevant statutes. It laid emphasis on the words “ordinarily” and “are directly in conflict” employed in that judgment to hold that it could override the statutory scheme, when faced with a situation of mass tort and the inadequacy of the existing legal framework to deal with the same.

 

In State of Punjab v. Rafiq Masih72, a 3-Judge Bench observed that it is a power that gives preference to equity over law i.e. it is a justice-oriented approach as against the strict rigours of the law. One of the pithiest declarations that Article 142 contemplates “particular equity” can be found in State v. Kalyan Singh10, where R.F. Nariman J. observed that the Article “turns one of the maxims of equity on its head, namely, that equity follows the law” and that while moulding relief, the court can go to the extent of relaxing the application of law to the parties or exempting altogether the parties from the rigours of the law, in view of the peculiar facts and circumstances of the case. More recently, a 5-Judge Bench in M. Siddiq73, noted that the phrase “necessary for doing complete justice” is of a 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. It further elaborated that in “hard cases”,74 it can follow an interpretation that best fits and justifies the existing legal framework. Importantly, it was observed that it could be employed to find equitable and just solutions not only on account of “silences of positive law” but even “where positive law is clear”.

 

The law as reconciled by Supreme Court Bar Assn.67 and reiterated in M. Siddiq30, thus leaves little room for doubt that Article 142 encompasses within its scope both “equity in general”, and in exceptional cases as highlighted above, “particular equity”.

 

SUI GENERIS MODE OF EXERCISE — FILLING OF LEGAL VACUUM

One mode of the exercise of Article 142 which qualifies neither of the appellations of equity coined by Sir Allen is that when the court fills what it perceives as legislative or executive vacuum, with directions/guidelines which are to operate as law until the legislature or executive suitably substitutes them.75

 

Such an exercise, arguably, is plainly quasi-legislative or an instance of judicial law-making. Though premised on a determination of the inadequacy of the existing legal and statutory framework, as opposed to the absence of legislation to cover a field, it cannot qualify as “particular equity” since such a determination does not necessarily involve the overriding or non-application of existing law but only the Court’s value judgment as to its inadequacy. To illustrate, the necessity for guidelines for sexual harassment in Vishaka v. State of Rajasthan76, strictly speaking, did not arise from the absence of a legal framework addressing the rights of a rape survivor (there was, in fact, a criminal trial against the accused already underway), they arose from the Court’s assessment that additional rights and reliefs be granted to women facing sexual harassment in workplaces considering its magnitude and prevalence. Thus, relying on international human rights conventions and treaties, which “embody the basic concept of gender equality in all spheres of human activity”,77 the Court prescribed “Guidelines and Norms” which were to operate as law, until there was appropriate legislation in their place. Yet the decision did not in any manner affect the applicability of the existing penal provisions covering the circumstances of the case.

 

This has meant that the Court has in a catena of cases78 virtually legislated and formulated policies afresh, albeit temporarily. The exercise of the power in this manner was referred to in Vineet Narain v. Union of India79 to be “a well-settled practice which has taken firm roots in our constitutional jurisprudence.” It was justified as being “essential to fill the void in the absence of suitable legislation to cover the field.”80 In adopting this approach, the Supreme Court has even extrapolated or given effect to international human rights laws and treaty obligations of India.75

 

NECESSITY TO RESORT TO ARTICLE 142

The Court’s recourse to Article 142 is often accompanied by a reference to the plenary powers it grants to the Court discernible from its wide wording. It is arguable that comparable plenary powers are also conferred on the Court under Article 32, since Article 32(2) employs the words “directions or orders”.81 This is so, especially since those words have also been given a meaning beyond the traditional understanding of writ remedies.82 However, a closer consideration of the fetters on Article 32 placed by the scheme of the Article and the Constitution itself, is indicative of why the recourse to Article 142 is often necessary.

 

Firstly, the jurisdiction of the court under Article 32, by virtue of the words “for the enforcement of any of the rights conferred by this Part” used therein, is restricted to redressal of violation of fundamental rights (unlike Article 226 which encompasses statutory violations).83 In fact, Article 139 provides that it can be expanded beyond such violations only by parliamentary enactment to that effect84. Secondly, though Article 32 employs the words “directions or orders”, the Supreme Court might not by that fact be able to override positive law, which it has held it can, in view of the wider language of Article 142 in comparison to that of Article 32. What gives Article 142 a wider net is the words “such order as is necessary for doing complete justice”, coupled with the understanding of the term “complete justice” i.e. equitable relief15. Thirdly, Article 32 being circumscribed by fundamental rights violations, even if it is read in a manner that allows it to override positive law, the Court would require a recourse to Article 142 in dealing with special leave petitions under Article 136 and so also suits under Article 131 which need not involve such fundamental rights violations. Lastly, the Supreme Court has always understood the power under Article 142 to be of a “different level85 and has employed the description of the Court’s inherent powers in Harbans Singh v. State of U.P.86, to describe the same87.

 

A CASE AGAINST PIGEON-HOLING ARTICLE 142

Sir Rashbehary Ghose described the concept of “justice, equity and good conscience” as “an uncertain guide, and not unfrequently[sic] wear an appearance of vagueness, which, it must be confessed, is rather bewildering to the student of Indian law”.29 The same could be said of the term “complete justice”. This power too contains no limitations regarding the causes or the circumstances in which the power can be exercised nor does it lay down any precondition for such exercise.2

 

However, in DDA v. Skipper Construction88, the Supreme Court extolled the virtues of leaving this power undefined and uncatalogued, since it remains elastic enough to be moulded to suit a given situation. In Ashok Kumar Gupta v. State of U.P.89, the Court elaborated that the term is couched with elasticity to meet myriad situations created by human ingenuity or the exigencies of the cause or matters before it. This is understandable since rules of courts of equity were also “invented”.90 Equitable remedies have evolved with time and as Lord Denning said in Eves v. Eves91 — “equity is not beyond the age of childbearing”. While Sir Alladi had spoken of the Supreme Court “developing its own jurisprudence” so as to do complete justice, in Golak Nath58, it was observed that under Article 142, it could “formulate legal doctrines” to meet the ends of justice. In C. Chenga Reddy v. State of A.P.92, it was held that the court could “evolve an appropriate remedy” by “forging new tools”. Similarly, in M. Siddiq30. it was observed that the Court could “create a relief” that ensures complete justice. Thus, to allow the evolution of new jurisprudence, doctrines, reliefs and tools, this power is indeed best left uncatalogued.

 

An apt instance to justify leaving the power uncatalogued would be the recent order passed by the Supreme Court in the wake of the Covid-19 pandemic, extending the limitation period to approach it from 15-3-2020 till further orders.93 Such an order is unprecedented and could not have been conceived before the outbreak of Covid-19.

 

JUSTIFIABLE EXERCISE OF “PARTICULAR EQUITY” UNDER ARTICLE 142

Just as it is not advisable, and perhaps impossible, to catalogue the circumstances justifying the exercise of Article 142, it is not possible to do so for the exercise of “particular equity”. However, it is possible to discern a spectrum of what is permissible and what is not, from the instances of its exercise thus far.

 

Three instances exemplify the justification for the exercise of “particular equity”. The first of these would be Mohd. Anis65, where the Court held it could direct investigation by the Central Bureau of Investigation in a State and the State could not take refuge of the statutory provision requiring its consent for the same, which it held to be a mere inter se obligation of federalism. The second would be the case of Anil Kumar Jha v. Union of India94, where the Governor of Jharkhand invited a legislator to form the Government and swore him as the Chief Minister though it was widely believed that a candidate of another party commanded a majority in the Assembly. The Governor also fixed a deadline (which was not immediate), for the said Chief Minister to prove his majority on the floor of the House. It was apparent that this allowed the possibility of horse-trading. The Supreme Court, when approached in a writ petition, advanced the floor test by 4 days albeit without expressly referring to Article 142, but in passing these directions, the Court had to necessarily disregard Article 212 of the Constitution, which provides that courts cannot inquire into the validity of proceedings of the legislature. The Bombay High Court has commented95 and rightly so, that it is obvious that the said directions have been given by the Supreme Court while exercising its power under Article 142. Following this decision, similar directions have been passed by the Supreme Court in several other cases.96 A third instance would be that of the recent decision in Keisham Meghachandra Singh v. Manipur Legislative Assembly97, where the Supreme Court, in what would appear to be an exercise to fill up the inadequacy of the law, had prescribed, that in ordinary circumstances, Speakers of Legislative Assemblies would have a broad time-frame of 3 months to decide disqualification petitions under the Tenth Schedule. In the facts of that case, the Court directed the Speaker of the Manipur Assembly to decide the disqualification petition pending before him in 4 weeks. When the Speaker breached the said deadline and so also an extension of 10 days beyond the 4 weeks which he had sought and had been granted, the Court expressly invoked Article 142 and directed that the MLA against whom the disqualification petition was pending be restrained from entering the Legislative Assembly and further that he shall cease to be a minister with immediate effect.98 This was without doubt an exercise in “particular equity”.

 

The above three instances where “particular equity” was employed appear to demonstrate a common thread, namely, subtilitas, a concept in Roman jurisprudence, meaning the adherence to the strict letter of the law, in order to make it the means of an unscrupulous advantage. This is akin to the principle of abuse of right or abuse of process or what is known as chicane in continental systems.99

 

On the other hand, the dicta in Supreme Court Bar Assn.67 stands at the other end of the spectrum of what is impermissible since it prescribes that the power cannot be employed to build an entirely new edifice where none existed. One instance where this yardstick of impermissibility was breached, with respect, is Samaj Parivartana71, where, while citing mass tort, the Court not only cancelled the offending mining leases, which was not unprecedented100, but also subjected future transactions of sale of iron ore in the State of Karnataka to a framework which travelled into the policy domain, inasmuch as sale of iron ore could effectively only be made to domestic steel manufacturers dehors the EXIM policy,101 and also through a compulsory e-auction process, which meant ceasing of the freedom of contract. The Court justified adopting these measures by citing the inadequacy of the legislations on the subject in place.

 

With the greatest respect to the Court, while the punitive directions including cancellation of offending mining leases in the wake of environmental and other illegalities might have been justified, by ordering a sui generis mechanism for the sale of iron ore dehors the statutory scheme, only in the State of Karnataka and restricting exports by a judicial direction, the Court did build a “new edifice where none existed”. Though the Court has in other cases prescribed a legal regime to operate based on its perceptions of legislative inadequacy, those have been of universal application and expressly law declared under Article 141. In this decision though, the directions being restricted to one State in the country creates dual legal regimes, one for this State and the other for the rest of the country. Had the directions been made applicable to the entire country, it could possibly have been justified under the head of filling up of a legal vacuum. It cannot, of course, be suggested that the legal vacuum exists in one State and not in the rest of the country.

 

Hence, there is good reason to justify the exercise of “particular equity” in a situation of subtilitas, whereas there is good reason not to justify the building of a de novo edifice or legal regimen dehors the statutory scheme only for the parties to a case, for it will be impossible to discern an underlying principle when it does not apply universally to all like cases. Thus, the power ought not to be exercised to do “particular equity” if a principle that can be applied in like cases cannot be discerned from it. Equally, the power cannot be exercised to do “particular equity” while expecting the decision not to be treated as a precedent; which is dealt with in detail in the next section.

 

THE PROBLEM AREA — PRECEDENTIAL VALUE OF ORDERS UNDER ARTICLE 142

One would assume that the creation or conceptualisation of new jurisprudence, doctrines, and reliefs, under Article 142 as envisaged in Golak Nath58, C. Chenga Reddy92 and M. Siddiq30, would be for posterity and this has indeed been the case, when the Court has issued guidelines to fill legislative vacuum, since all of these have operated as law declared under Article 141 of the Constitution.

 

Unfortunately, very often the Supreme Court issues directions under Article 142, but adds that it shall not be treated as a precedent.102 In J&K Public Service Commission v. Narinder Mohan103 it held that the directions issued for regularisation of ad hoc appointments did not constitute the ratio, rather they were to be treated as directions under Article 142 of the Constitution of India; implying that such directions cannot constitute a precedent.

 

Students of law and so also Judges who attempt to discern the principles underlying such directions are faced with a problem in that a series of judgments have held that as a general rule, directions issued under Article 142 do not constitute a binding precedent unlike Article 141 of the Constitution.104

 

In State of Punjab v. Rafiq Masih105, the Court explained that its judgments have two compartments; the first being the relief in the operative portion of the judgment by exercise of powers under Article 142 of the Constitution and the second being the law declared. In other words, the directions under Article 142 of the Constitution relaxing the application of law or exempting the case at hand from the rigour of the law (in view of peculiar facts and circumstances of that case) do not comprise the ratio decidendi and therefore lose the basic premise to qualify as a binding precedent. Former Supreme Court Judge, Justice R.V. Raveendran explains106 the dichotomy with the analogy of an ancient Indian adage, “Do as Rama did and Krishna said” and suggests that courts will do well to remember to “do what the Supreme Court said (under Article 141) and not what the Supreme Court did on the special circumstances (under Article 142)”. In Sushilaben Indravadan Gandhi v. New India Assurance Co. Ltd.107, the Supreme Court while culling out the law on contracts for service and of service, brushed aside an earlier order of the Court cited before it by observing that it “seems to have been passed under Article 142 of the Constitution on the facts of the case, without reference to any case law” and hence “unnecessary for us to place reliance on such Order”.

 

Such orders, apart from being contrary to the doctrine of precedent, have caused confusion, chaos, and even consternation for the Supreme Court itself, as was expressed in a 5-Judge Bench decision in State of Karnataka v. Umadevi (3)108. The Court observed that the divergence in the approach of the Court in passing such orders i.e. the “so-called equitable approach” in some cases, as against those where it “insisted on the rules being followed”, cried out loud for clarity. It then added that it was necessary to end the uncertainty so that the High Courts knew what to follow.

 

Similarly, while dealing with the inconsistency between judgments allowing the quashing of proceedings involving an offence under Section 307 of the Penal Code, the Supreme Court, in Narinder Singh v. State of Punjab109, rightly observed that though in each of the aforesaid cases the view taken by this Court may be justified on its own facts, at the same time “this Court owes an explanation as to why two different approaches are adopted in various cases”. It added that stare decisis is a fundamental principle of judicial decision-making and its objective is to “put a curb on the personal preferences and priors of individual Judges”.

 

Hence the approach of detaching Article 142 from Article 141 goes against one of the basic principles of administration of justice viz. that all cases should be decided alike. Consistency, certainty and uniformity in the field of judicial decisions are considered to be the benefits arising out of the doctrine of precedent since a precedent sets a pattern upon which future conduct may be based.110

 

Even in M. Siddiq30, the 5-Judge Bench therein observed that under Article 142, it could create reliefs based on “principles grounded in equitable standards”. A decision ordinarily is a decision on the case before the court while the principle underlying the decision would be binding as a precedent in a case which comes up for decision subsequently. The only thing binding as an authority upon a subsequent Judge is the principle upon which the former case laying down the precedent in question was decided.111

 

In Myers v. Director of Public Prosecutions112, the House of Lords, while acknowledging the need for evolution of the law and the limits within which such change could be brought about observed thus:

… If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations: that must be left to legislation. And if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty.113

(emphasis supplied)

 

There is no doubt that the doctrine of binding precedent is a cardinal feature of the common law in India, as also an established principle in its constitutional jurisprudence. In Union of India v. Raghubir Singh114, the Supreme Court explained that its judgments are of significance, not merely because they constitute an adjudication on the rights of the parties and resolve the dispute between them, but also because, in doing so, they “embody a declaration of law operating as a binding principle in future cases”. It further added the doctrine of binding precedent enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions forming part of his daily affairs. It observed that in dealing with the dilemma between applying the strict letter of the law or adopting an equitable approach, the court would do well to ensure that:

 

[…] although the new legal norm chosen in response to the changed social climate represents a departure from the previously ruling norm, it must, nevertheless, carry within it the same principle of certainty, clarity and stability”.

(emphasis supplied)

 

There will always be certain legally unregulated cases in which on some point no decision either way is dictated by the law and the law is accordingly partly indeterminate or incomplete and, in such cases, the Judge must exercise his discretion and “make law” for the case instead of merely applying already pre-existing settled law.115 Where the law does not give an answer, the Judge must establish, by his decision, a new legal rule, and this he will do on the basis of extra-legal considerations of morality and social policy.116 H.L.A. Hart argues that at this point Judges make a choice which is neither arbitrary nor mechanical and they display characteristic judicial virtues, one of which is “a concern to deploy some acceptable general principle as a reasoned basis for decision”.117 The Judge must always have some general reasons justifying his decision.118 In such indeterminate cases, Judges very often cite some general principle or some general aim or purpose which has roots in existing law and which points towards a determinate answer for the case.119

 

In M. Siddiq30, the Supreme Court has borrowed the term “hard case” to illustrate the use of Article 142. Black’s Law Dictionary120 defines a “hard case” thus:“Hard case. — A law suit involving equities that tempt a Judge to stretch or even disregard a principle of law at issue—hence the expression, ‘Hard cases make bad law’.” Dworkin, who originally coined the term “hard case”, suggests that in deciding such cases, a departure from an existing rule would be justified only if “the change would advance some principle, which principle thus justifies the change121. He cites the classic “hard case” of Riggs v. Palmer122 to illustrate this. He contends that the change in that case i.e. a new interpretation of the statute of wills, was justified by the principle that no man should profit from his own wrong. Thus, a court may create a new exception to the established rules, but should do so on the basis of legal principles.123 Dworkin argues that if principles are not part of the law, it follows that the parties in a litigation will not have a right to any particular decision.124

 

Israeli jurist and former President of the Supreme Court of Israel, Aharon Barak holds the view that judicial discretion is subject to both procedural and substantive restrictions and one such restriction is that “they must explain their decisions”. The exercise of discretion must be rational, consistent, and coherent.125 In the words of Justice H.R. Khanna, a Judge is not to yield to “spasmodic sentiment”, to vague and unregulated benevolence126 and an attempt to do absolute justice in every single case would make the development and maintenance of general rules impossible.127 Justice Oliver Wendell Holmes, in Northern Securities Company v. United States128, while elaborating on the adage “hard cases make bad law”, observed that such decisions were the result of some accident of overwhelming interest which appeals to the feelings and distorts the judgment.

 

Ironically, even the Chancery courts in England which were subjected to the criticism that “Equity varies with the length of the Chancellor’s foot”,129 attempted to provide rational justifications for particular applications of principle, which made it easy to systemise equity and to develop a body of equitable principles.130

 

Similarly, while it is not conceivable that Article 142 can be pre-catalogued, it can surely be an open catalogue to which classes are added through judicial formulation of principles, on evolving needs. Unless the power under Article 142 carries with it the obligation to formulate a principle or to provide rational justifications, orders passed thereunder would continue to be unpredictable. It would amount to having a moving target for litigants unsure of the position of the law. This unpredictability has both deontological and consequential repercussions, in that, apart from undermining the credibility of the judicial process and affecting deference to the law, it has the propensity to encourage litigants to approach the Supreme Court in speculative litigation, notwithstanding the law being against them. It would give credence to the legend131 of the former Attorney General for India, C.K. Daphtary, having quipped in response to a query from a Supreme Court Bench as to his familiarity with gambling, when he said:

 

M’Lord, what else am I doing day in and day out while arguing before Your Lordship’s court?”

———

*The article has been published with kind permission of SCC Online cited as (2021) 1 SCC J-30

The author is a lawyer practising at the Supreme Court of India.

1 H.M. Seervai, Constitutional Law in India (2010), xxv.

2 Justice Ruma Pal and Samaraditya Pal (Eds.), M.P. Jain’s Indian Constitutional Law, (6th Edn., Economy Paperback Reprint, 2010), p. 281.

3 Bangladesh Constitution, Article 104.

4 Nepal Constitution. 2015, Article 133(3); See also Nepal Constitution 1990, Article 88(2).

5Kalyan Chandra Sarkar v. Rajesh Ranjan, (2005) 3 SCC 284, para 32.

6 Government of India Act, 1935, Section 209.

7 B. Shiva Rao, The Framing of India’s Constitution: Select Documents, 209 (2010), Notes on certain clauses by Alladi Krishnaswami Ayyar.

8 Id at p. 389.

9 Constituent Assembly Debates, Vol. VIII at p. 639.

10State v. Kalyan Singh, (2017) 7 SCC 444, para 22.

11Rambhau Ganpat Koshire v. Sardarshingh Rupsingh Ture, 2013 SCC OnLine Bom 673 : (2013) 5 Bom CR 44.

12 Justice Ruma Pal and Samaraditya Pal (Eds.), M.P. Jain’s Indian Constitutional Law, (6th Edn., Economy Paperback Reprint, 2010), p. 210.

13 R. Prakash, “Complete Justice Under Article 142”, (2001) 7 SCC J-14 at p. 19.

14Bhinka v. Charan Singh, AIR 1959 SC 960.

15Rambux Chittangeo v. Modoosoodhun Paul Chowdhury, 1867 SCC OnLine Cal 18 : (1867-74) Supp BLR 675 in Kshirodebihari Datta v. Mangobinda Panda, 1934 SCC OnLine Cal 65 : AIR 1934 Cal 682.

16 Government of India Act, 1935, Section 209. C.K. Allen, Law in the Making (Clarendon Press, Oxford, 1927). The book originated in the Tagore Lectures delivered in Calcutta in 1926 titled Sources of Law.

171615 Ch Rep 1 : 21 ER 485.

18 Sarah Worthington, Equity, (2nd Edn., Clarendon Law Series, Oxford University Press, 2006).

19 C.K. Allen, Law in the Making (Clarendon Press, Oxford, 1927). The book originated in the Tagore Lectures delivered in Calcutta in 1926 titled Sources of Law, at p. 197.

20 Id at p. 232.

21 Rebecca M.M. Wallace, International Law – A Student Introduction, (2nd Edn., 2nd Indian Reprint, 1995).

22 Motilal Setalvad, The Common Law in India, Hamlyn Law Lectures, Series 12, 1960, 2nd Edn. at p. 56.

23 Sir Frederick Pollock, The Law of Fraud, Misrepresentation and Mistake in British India, Tagore Law Lectures (1894).

24 Motilal Setalvad, The Common Law in India, Hamlyn Law Lectures, Series 12, 1960, 2nd Edn., at p. 59.

25 Herbert Cowell, The History and Constitution of the Courts and Legislative Authorities in India, Tagore Law Lectures (1872).

26 Sripati Roy, Customs and Customary Law in British India, Tagore Law Lectures (1908).

27 See the Bengal Civil Courts Act, 1871, p. 24; The Oudh Civil Courts Act, 1871, p. 31; The Punjab Laws Act, 1872, p. 6; The Burma Courts Act, 1872, p. 6; The Madras Civil Courts Act, 1873, p. 16 cl. (c); The Central Provinces Laws Act, 1875, p. 6; The Burma Courts Act, 1875, p. 4; The Oudh Laws Act, 1876, p. 3 cl. (g); The Bengal, Agra and Assam Civil Courts Act, 1887, p. 37 cl. (2).

281887 SCC OnLine PC 7 : (1886-87) 14 IA 89 at p. 96 per Lord Hobhouse.

29 Rashbehary Ghose, The Law of Mortgage in India, Tagore Law Lectures (1875), Lecture IX.

30(2020) 1 SCC 1 at p. 659.

31(1976) 2 SCC 103 at p. 114.

32(1995) 3 SCC 635 at p. 647, para 22.

33(2011) 8 SCC 161 at p. 245.

341972 SCC OnLine Del 22 : ILR (1972) 1 Del 601 at p. 614.

35M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1 at p. 662.

36 B. Shiva Rao, The Framing of India’s Constitution Select Documents, 209 (2010), Notes on certain clauses by Alladi Krishnaswami Ayyar at pp. 57, 58.

37(1980) 3 SCC 545 at p. 550.

38Gopal L. Raheja v. Vijay B. Raheja, 2007 SCC OnLine Bom 399 : (2007) 4 Bom CR 288 at p. 302, para 49.

39(2019) 10 SCC 395 at p. 406 paras 37, 38.

40Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjibhai Mody, (1964) 3 SCR 480 : AIR 1964 SC 345.

41S.S. Balu v. State of Kerala, (2009) 2 SCC 479.

42D.C.M. Ltd. v. Union of India, (1996) 5 SCC 468.

43Sikkim Subba Associates v. State of Sikkim, (2001) 5 SCC 629.

44(1984) 2 SCC 50 at p. 57.

45(1584) 3 Co Rep 7a : 76 ER 637.

46Black’s Law Dictionary, (11th Edn., 2019), p. 1195.

47Yakub Abdul Razak Memon v. State of Maharashtra, (2013) 13 SCC 1 at p. 65.

48(1961) 1 SCR 884, para 8.

49Ranglal v. Munjaji, 1953 SCC OnLine Hyd 64 : AIR 1956 Hyd 29, Mohd. Gulam. Rabbani v. Bankipora Hari Sabha, 1973 SCC OnLine Pat 77 : AIR 1973 Pat 358.

50(2011) 11 SCC 275 at p. 283.

51(1977) 4 SCC 551.

52(2011) 14 SCC 770 at p. 798.

53(2012) 10 SCC 303 at p. 339.

54Sanchalakshri v. Vijayakumar Raghuvir Prasad Mehta, (1998) 8 SCC 245 at p. 249.

55C.M. Singh v. H.P. Krishi Vishwa Vidyalaya, (1999) 9 SCC 40 at p. 42; Anil Kumar Jain v. Maya Jain, (2009) 10 SCC 415 at p. 423.

56AIR 1963 SC 996.

57 Id, at para 14.

58AIR 1967 SC 1643, at para 51, per Subba Rao, J. This aspect remains untouched by the decision in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 which overruled the judgment on the aspect of whether constitutional provisions guaranteeing fundamental rights could be amended.

59(1988) 2 SCC 602, at para 206, per Ranganathan, J. who was in the majority.

60(1991) 4 SCC 406 at p. 462.

61(1991) 4 SCC 584.

62 Id, at para 83.

63 Id, para 84, per Ranganath Mishra, J.

64(1996) 4 SCC 622 per Jeevan Reddy, J.

651994 Supp (1) SCC 145.

661995 Supp (3) SCC 128 at p. 132.

67(1998) 4 SCC 409 at p. 437.

68 Supreme Court Bar Assn. case, (1998) 4 SCC 409, 438, Id, para 56.

69 Id, 432, para 47.

70 Supreme Court Bar Assn. case, (1998) 4 SCC 409, 432, para 48.

71(2013) 8 SCC 154 at p. 186.

72(2014) 8 SCC 883 at p. 890, para 12.

73M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das, (2020) 1 SCC 1 at p. 664.

74 Ronald Dworkin, “Hard Cases”, Harvard Law Review, Vol. 88, No. 6 (April 1975), pp. 1057-1109 available at <https://www.jstor.org/stable/1340249>.

75Vishaka v. State of Rajasthan, (1997) 6 SCC 241.

76(1997) 6 SCC 241.

77 Id, para 15.

78 See e.g. Lakshmi Kant Pandey v. Union of India, (1984) 2 SCC 244; Vishaka v. State of Rajasthan, (1997) 6 SCC 241; Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406.

79(1998) 1 SCC 226.

80Vineet Narain v. Union of India, (1998) 1 SCC 226, Id, para 51.

81 See e.g. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161.

82 Id at p. 187.

83 Id at p. 192; Nain Sukh Das v. State of U.P., AIR 1953 SC 384.

84 Justice C.K. Thakker and M.C. Thakker (Eds.), V.G. Ramachandran’s Law of Writs, (6th Edn., 2006), p. 171.

85Monica Kumar v. State of U.P., (2008) 8 SCC 781 at p. 801.

86(1982) 2 SCC 101.

87 Ed.: Despite the above cogent arguments as to the breadth of the power available to the Supreme Court under Article 142, it is still worth contemplating the relevant portion of the bare text of Article 32(2) of the Constitution, which does appear to confer nearly plenary power on the Supreme Court to issue directions for the enforcement of fundamental rights, which would appear to include the power to issue legislative directions as well:

 

Article 32(2) The Supreme Court shall have power to issue directions … for the enforcement of any of the rights conferred by this Part.

(emphasis supplied)

As correctly argued in this article, there will be situations wherein the Supreme Court would not be able to have recourse to Article 32, as fundamental rights may not be involved, yet so many of the clearly legislative directions of the Supreme Court purportedly issued under Article 142 following Vishaka, (1997) 6 SCC 241, it is respectfully submitted, can be put on a far more sound and justifiable constitutional, legal and jurisprudential basis if their source is located in Article 32 and not Article 142. When these legislative directions are purported to be given in exercise of power under Article 142, the judicially crafted legislation must be justified on a judicial interpretation of Article 142. Whereas, were Article 32(2) to be invoked, in those cases where it certainly could have been so invoked, its bare text provides for the giving of such directions: thus providing a direct constitutional basis for such legislative directions.

88(1996) 4 SCC 622.

89(1997) 5 SCC 201.

90 P.J. Fitzgerald, Salmond on Jurisprudence (12th Edn., Universal Law Publishing Co., 2004) 145.

91[1975] 1 WLR 1338 : 1975 EWCA Civ. 3 (CA).

92(1996) 10 SCC 193 at p. 222.

93Cognizance for Extension of Limitation, In re, 2020 SCC OnLine SC 343.

94(2005) 3 SCC 150.

95Sanjay Lakhe Patil v. Maharashtra State Legislative Assembly, 2014 SCC OnLine Bom 2489.

96Union of India v. Harish Chandra Singh Rawat, (2016) 16 SCC 744, Chandrakant Kavlekar v. Union of India, (2017) 3 SCC 758, G. Parmeshwara v. Union of India, (2018) 16 SCC 46, Shiv Sena v. Union of India, (2019) 10 SCC 809.

972020 SCC OnLine SC 55.

98Keisham Meghachandra Singh v. Manipur Legislative Assembly, 2020 SCC OnLine SC 617.

99 Government of India Act, 1935, at p. 209.

100M.C. Mehta v. Union of India, (2009) 6 SCC 142.

101 A set of guidelines and instructions related to the import or export of goods notified by the Government of India under Section 5 of the Foreign Trade (Development and Regulation) Act, 1992.

102Bharat Petroleum Corpn. Ltd. v. P. Kesavan, (2004) 9 SCC 772; Indian Council of Agricultural Research v. A.N. Lahiri, (1997) 10 SCC 691; Chief Secy. v. Students of A.P.A.U., (2005) 12 SCC 448; Central Marine Fisheries Research Institute v. A. Kanakkan, (2009) 17 SCC 253.

103(1994) 2 SCC 630.

104State of Punjab v. Surinder Kumar, (1992) 1 SCC 489; Indian Bank v. ABS Marine Products (P) Ltd., (2006) 5 SCC 72; Ram Pravesh Singh v. State of Bihar, (2006) 8 SCC 381; State of U.P. v. Neeraj Awasthi, (2006) 1 SCC 667 and Indian Drugs & Pharmaceuticals Ltd. v. Workmen, (2007) 1 SCC 408.

105(2014) 8 SCC 883 at p. 890.

106 R.V. Raveendran, “Precedents-Boon or Bane?” (2015) 8 SCC J-1 at J-18.

1072020 SCC OnLine SC 367.

108(2006) 4 SCC 1 at p. 24.

109(2014) 6 SCC 466 at p. 480.

110K. Ajit Babu v. Union of India, (1997) 6 SCC 473 at p. 477.

111Karnataka SRTC v. Mahadeva Shetty, (2003) 7 SCC 197 at p. 206.

1121965 A.C. 1001 (HL).

113 Id, 1021 (per Lord Reed).

114(1989) 2 SCC 754 at p. 766.

115 HLA Hart, The Concept of Law 272 (2nd Edn., Oxford: Clarendon Press, 2005).

116 N.E. Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights 87 (2003).

117 Precedent in English Law, Cross and Harris 222 (4th Edn., Clarendon Law Series, Oxford University Press, 2007).

118 HLA Hart, The Concept of Law 272 (2nd Edn., Oxford: Clarendon Press, 2005) at p. 273.

119 Id, 274.

120Black’s Law Dictionary, p. 860 (11th Edn., 2019).

121 Ronald Dworkin, Taking Rights Seriously 37 (Harvard University Press, 1977).

122115 NY 506 (1889). In this New York case, one Mrs Riggs had bequeathed property to Mr Palmer, her nephew. The nephew murdered his aunt to obviate any change in the bequest. The Court held that notwithstanding the fact that on a strict reading of the letter of the law, Mr Palmer would have been entitled to his share under the will, the court shall not allow him to take the same. Thus, the Court went against the letter of the law in view of equitable considerations.

123 N.E. Simmonds, Central Issues in Jurisprudence: Justice, Law and Rights 87 (2003) at p. 99.

124 Id, at p. 105.

125 A. Barak, Purposive Interpretation in Law, pp. 210-211 (2007).

126 H.R. Khanna, Judiciary in India and Judicial Process, p. 55 (1985).

127 Id at p. 56.

1281904 SCC OnLine US SC 63 : 48 L.Ed. 679 : 193 US 197 (1904).

129 Samuel Harvey Reynold, The Table Talk of John Selden, pp. 60-61 (1892).

130 Motilal Setalvad, The Common Law in India, Hamlyn Law Lectures, Series 12, 1960, 2nd Edn. at p. 31.

131 Vicaji J. Taraporevala, Tales from the Bar & the Bench 4 (2010).

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