Ever since Plato’s celebrated book “The Republic” made its appearance somewhere around 375 BC, speculations continued as to why it is subtitled as “Concerning Justice”. How can these two be assimilated and why he titled his book so vaguely though its first part had mainly covered Socratic dialogue. In the last 2500 years of the development of human civilisation since Plato, neither the word “Republic” could get a clear meaning nor the word “justice”. The framers of the American Constitution used “Republic” for the first time in their Constitution without defining it. They only said that the existing form of the Government was “Republican”, and as a Union, it guaranteed the same to every individual States. However, it is a common knowledge that the word “Republic” primarily implies two things. First, the Head of the State must not be a hereditary one and second, he must be an elected representative of the people, namely, citizens of the country. The significance of saying all these is that if the meaning of a term is clear in the mind of every individual, an attempt to define the same with composition of words would be not of much relevance.
In the same parlance if we try to find out the meaning of “justice” we can attempt the same as till date, with no finality it has been defined, not even in our own Constitution, which is considered to be the largest written code on human conduct and governance. Interestingly enough the word “justice” has found its place in the Preamble to the Constitution as a constitutional value and as a philosophical goal under Article 38(1) of the Directive Principles but not as a constitutional/fundamental right. At best, a derivative meaning can be imputed to “justice” that has passed through the ages of civilisation through Greek, Roman, Medieval and Renaissance age and ultimately settled at “ensuring what is just and proper”. To quote Dr Justice B.S. Chauhan, “Justice is an illusion as the meaning and definition of ‘justice’ varies from person to person and party to party. Party feels having got justice only and only if it succeeds before the court, though it may not even have a justiciable claim.”
The purpose of having the above discussion can be summed up differently to justify that “justice” is not an altogether vague concept but its meaning varies contextually. However in the subconscious mind of every individual it has been set through judicial process that ensuring what is “just, proper and equitable” is what we mean as imparting justice though words like just and proper cannot be treated as a synonym of justice.
Now the question arises as to if “justice” can be subdivided into complete justice, incomplete justice, partial justice, substantial justice, so on and so forth, though its subdivision like fair justice, equitable justice, social justice, natural justice, etc. are being well-recognised as categories of justice despite the fact that its meaning and contextual usage are quite different from each other. For example, while natural justice and social justice are treated as a means through which justice is secured and promoted, fair and equitable justice are the end products of ensuring justice through a court process. It is with this background in mind an attempt is made to explain “complete justice” as enshrined in Article 142 of the Constitution of India.
It can be said at the cost of repetition that “complete justice” has not been defined in the Constitution of India nor debated in the Constituent Assembly to derive its meaning while adopting it, though discussed thoroughly to provide it a proper meaning, which will be discussed at the concluding portion of this article but it would not be entirely wrong to say that “complete justice” travels much beyond the concept of giving justice. It is a great plenary power vested with the Supreme Court of this country. Through judicial pronouncement over the years, its meaning had been expanded and purpose has been broadened, though in the initial phase of its exercise till 1989, it had received a very narrow interpretation. The interpretations which have emerged through long practice of constitutionalism and judicial interpretation has not been consistent, but can be broadly outlined:
- An order, which the Supreme Court can pass to do complete justice must not be inconsistent with the substantive provisions of the relevant statutory laws or fundamental rights guaranteed by the Constitution. Reference: Prem Chand Garg Excise Commr. that was approved by the seven-Judge Bench in A.R. Antulay v. R.S. Nayak.
- In addition to the above, it was also held in Prem Chand Garg that in exercise of power under Article 142 and similar other powers, the Supreme Court would not be bound by the relevant provisions of procedure if it is satisfied that a departure from the said procedure is necessary to do complete justice between the parties. In other words, statutory laws cannot be violated though procedural aspects may be ignored/overlooked.
(iii) A contrary view emerged in 1980 and therefore, the Supreme Court’s power to do complete justice in exercise of the Article 142(1) is seen entirely at a different level and felt as of a different quality. It was held in Delhi Judicial Service Assn. v. State of Gujarat that any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of this Court. This view was also approved by the Constitution Bench formed to decide the case of Union Carbide Corpn. v. Union of India and Supreme Court Bar Assn. v. Union of India.
(iv) During the closure of 20th century, again the initial view re-emerged that the Supreme Court cannot disregard or ignore statutory provisions under Article 142 and it was added that without striking down a statute, contrary direction cannot be given (State of Punjab v. Bakshish Singh).
(v) Complete justice is also seen as a corollary to inherent powers as reflected in Section 151 of the Civil Procedure Code, 1908 and Section 482 of the Criminal Procedure Code, 1973 as some protagonists say, they are similarly worded. In Monica Kumar v. State of U.P., similar view has been expressed by the Supreme Court to equate inherent powers under Section 482 CrPC to Article 142 of the Constitution.
Summing up the above discussion would lead us to believe that no definite finding emerged till date as to the extent of jurisdiction that can be exercised by the Supreme Court under Article 142 of the Constitution. However, the reasoning given by the Supreme Court in Dhananjay Sharma v. State of Haryana expresses the intent of Court in the following words:
“25. Article 142 being in the nature of a residuary power based on equitable principles, the courts have thought it advisable to leave the powers under the article undefined. The power under Article 142 of the Constitution is a constitutional power and hence, not restricted by statutory enactments. Though the Supreme Court would not pass any order under Article 142 of the Constitution which would amount to supplementing substantive law applicable or ignoring express statutory provisions dealing with the subject, at the same time these constitutional powers cannot in any way, be controlled by any statuary provisions….”
The above interpretation, which has again been reiterated in 2009 in Laxmidas Morarji v. Behrose Darab Madan, would invariably lead anyone to conclude that Article 142 is a residuary constitutional code, which going by the debates in the Constituent Assembly, may lead to a departure from what has been observed. However, before going to the relevant debate on “complete justice” taken place in the Constituent Assembly, it is imperative to have a look at the text of Article 142, that was passed in one go by the Constituent Assembly without any specific discussion or proposal for amendment.
142. Enforcement of decrees and orders of Supreme Court and orders 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 order 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 in 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.16
It is an acknowledged fact that drafting of the Indian Constitution has been greatly inspired by the Government of India Act of 1935 inasmuch as some of the provisions were borrowed with their exact wordings or with little changes. The title “Enforcement of decrees and orders of Federal Court and orders as to discovery, etc.” and second part of Article 142, which was placed as Draft Article 118 of the Draft Constitution, 1948, were almost reproduced from Section 210 of the 1935 Act except that “Federal Court” was replaced with “Supreme Court’’. It also retained the other provisions like obligations of all authorities to aid the Federal Court (Article 14417) and contempt power too (Article 12918). Additionally, it has stretched the jurisdiction of the Supreme Court to pass such decree or order as is necessary for doing complete justice in any cause or matter pending before us. “It can also be derived from the Constituent Assembly Debates and preserved documents of those days that ‘for the purpose of doing complete justice’ has been borrowed from Section 4 of the Provincial Insolvency Act of 192019 and inserted for the first time in draft Article 100(1) on 13-12-1947 that was ultimately renumbered as Article 118 in the Draft Constitution submitted by Dr B.R. Ambedkar on 21-2-1948.”20
The need for having such an exceptional article bestowing plenary powers on the Supreme Court can better be understood from the reproduction of the relevant portions of the debates in the Constituent Assembly (CA), while approving Article 13621 (then draft Article 112) as the texts “in any cause or matter” was commonly placed in both the articles.
To start with the words of Prof. Shibban Lal Saxena, Member CA:
“Mr President, Sir, this article is a very important article in the Constitution. If there is a Supreme Court, it will have to have supreme powers…. But what I wish is that in cases where natural justice is under consideration the Supreme Court should be enabled to give judgments which may not be within the letters of the law. It should be permitted to give any judgment to satisfy the requirements of the cases. Even now, the Privy Council entertains appeals of this kind. Where natural justice is involved, they take appeals and give decisions which are not bound by the law of the land. I therefore wish that under Article 112 where we give power to the Supreme Court to entertains any appeal, we should also enable it to decide those appeals on the principles of jurisdiction and considerations of natural justice….”22
Shri Krishna Chandra Sharma, Member CA also made a reference combinedly to Draft Articles 112 and 118 in the following words:
“Krishna Chandra Sharma: Mr President, Sir, the provisions of this Article 112 are very important and very comprehensive. It lays down one important principle of Constitution, namely, that while in the scheme of the Government of India Act, the executive was all powerful and both the legislature and the judiciary were subordinate to it, this article, a provision of which type has not found a place in the Government of India Act, 1935, has given a status to the judiciary, equivalent and in no way subordinate to the executive and legislature. Therefore, Sir, this comprehensive does a great deal of good to the people and gives them the right of appeal from the High Courts. Sir, I support the provisions of this article and I would further add that this article gives ample power to do justice in the hands of the Supreme Court….”23
“Pandit Thakur Das Bhargava: Sir, in regard to Article 112, I want to make one or two observations. This Article 112 is exceptionally wide. The words are “in any cause or matter” and I understand this is a departure from the established law of the land also. Now perhaps in all the provinces the revenue jurisdiction is quite exclusive and the Privy Council had got nothing to do with such jurisdiction, but our Supreme Court shall be fully omnipotent as far as a human court could be and it shall have all kinds of cases…. My humble submission is that Article 112 is the remnant of the most accursed political right of the divine right of kings. At the same time the jurisdiction of the article is almost divine in its nature, because I understand that this Supreme Court will be able to deliver any judgment which does complete justice between States and between the persons before it. If you refer to Article 118, you will find that it says: “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 passed or order 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.” So far so good: but my humble submission is that the Privy Council also, which as a matter of fact belonged to Great Britain and which was a sign of our judicial domination by the British, even that had very wide powers and proceeded to dispense justice according to the principles of natural justice. 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; and in this light, I beg to submit before the House that this is a very important section and gives almost unlimited powers and as we have got political swaraj, we have judicial swaraj certainly. The right of appeal is absolute in Articles 110 and 111, but so far as the special appeal Supreme Court jurisdiction is concerned it is of a special nature and it is above law. Even if there is no right of appeal, the Supreme Court can interfere where dictates of justice require it to do so. I should therefore think that the Supreme Court shall exercise these powers and will not be deterred from doing justice by the provision of any rule or law, executive practice or executive circular or regulation, etc. Thus, the Supreme Court will be in this sense above law. I want that this jurisdiction which has been enjoyed by the Privy Council may be enjoyed and enlarged by our Court and not restricted by any canon or any provision of law.”24
To sum up the relevance of the debate that had taken place in the Constituent Assembly, it would not be a futile attempt to record the statements of Mr Alladi Krishnaswami Ayyar too:
“Mr President, it is necessary to realise the comprehensive nature and the plenitude of the jurisdiction conferred by this article…. If only we realise the plenitude 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 county, 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.”25
The above Debates would clearly demonstrate that the framers of the Constitution wanted to give vast and exceptional power to the Supreme Court to deliver justice that would look “complete” in all respect, no matter whether the theme is disused in the context of Article 112 (present Article 136) or Article 118 (present Article 142). They even tried to equate it to the power that is ”divine in nature”. The interpretation that in its marginal notes, the absence of words “complete justice” has led it to the position of a procedural autonomy can be discarded solely on the ground that “power to punish for its own contempt” is absent in the marginal note of Article 129. The obvious reason of absence of such wordings can be attributed to the borrowing of the marginal noting from the Government of India Act of 1935 while ignoring to put the context in it which were subsequently inserted into the provisions in the draft Constitution. Further the very specific sentence of Article 142 brings a definite meaning that Parliament has to make law or provision to enforce a decree/order passed by the Supreme Court and until such a provision is made accordingly, President of India would prescribe the manner in which the order/decree shall be enforced. Therefore, neither Parliament nor the President of India even through an Ordinance [in view of Article 12326 clause (3)] is empowered by the Constitution of India to pass any law contrary to the decree or order passed by the Supreme Court and insertion of languages in a statute like “notwithstanding any order or decree or direction of any court of law” cannot in any way affect the orders passed by the Supreme Court in exercise of its plenary power and perhaps for this obvious reason the President of India, in exercise of his power under clause (1) of Article 142 of the Constitution of India, had issued the Supreme Court (Decrees and Orders) Enforcement Order, 1950 delegating the enforceability of an order passed by the Supreme Court in exercise of the appellate jurisdiction to the original court whose order is appealed against.
In the conclusion, it can be said that such plenary power of the Supreme Court, which the framers of the Constitution have stated to be “divine in nature”, should retain its originality, purpose and meaning in all ages and remain unaffected amidst Montesquieu’s theory of separation of powers vis-à-vis Lord Blackstone’s theory of checks and balances.
*MA, LLM, PhD. Former Additional District Judge in Odisha and former Assistant Professor of National Judicial Academy Bhopal. Currently, Member Judicial, Customs Excise and Service Tax Appellate Tribunal, West Zonal Bench, Mumbai. Author can be reached at email@example.com
Courts and its endeavour to do complete Justice by Dr Justice B.S. Chauhan, Judge, Supreme Court of India (presentation at NJA).