Complete Justice: An Erroneous Interpretation under Article 142

Submitted by Anukriti Debnath

(20181BBL0081)
INTRODUCTION :

Justice is an illusion as the meaning. The definition of ‘justice’ can vary from party to party. The
functioning of the Supreme Court is largely governed by its attempts to ensure that justice is served to
the aggrieved party. It does not function as any other conventional court. The Supreme Court’s
functioning may be termed as supervisory jurisdiction as it ensures that the decision of any court has
not led to injustice to any of the parties. It is for this purpose for which the Supreme Court was entrusted
with power in the form of Art.142 which says that the Apex Court may pass any decree or make such
order as is necessary for doing complete justice in the exercise of its jurisdiction. It is to be noted that
this article uses the words ‘complete justice’ rather just the word ‘justice’. But while interpreting this
term, the apex court has given various judgments leading it to be an inconsistent interpretation. It has
crossed boundaries while giving judgments which could also result in violation of the basic structure
doctrine. Unfortunately, these judgments created uncertainty about discretion vested in the court to
invoke the mentioned article. The inconsistent and erroneous interpretations have led to the belief that
the time has come for the Apex Court to introspect whether powers vested under Art.142 should be
regulated by Strict guidelines.
Article 142 of the Constitution of India reads:
“Enforcement and decrees and orders of Supreme Court and orders as to discovery, etc.-
(1)The Supreme Court in its exercise of its jurisdiction may pass such decree or make such order as is
necessary for doing complete justice in any cause of 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. 1
(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. 2
Keeping the basic structure of the Constitution in mind, a bare reading of Art. 142(1) would give us a
clear idea about the objective of the mentioned article. The object is that the Supreme Court must not
be obliged to depend on the executive for the enforcement of its decrees and orders as such dependence
would be violative of the principles of independence of judiciary as well as the separation of powers.
All of this would ultimately lead to give it a different dimension than what the founding fathers intended.
The interpretation of the words “complete justice” mentioned under Art. 142(1) has not been consistent
but from the year 1963 to 1989, the interpretation was based on the fact that it cannot be adverted to
defeat the statutory provisions.
The first case to state would be Prem Chand Garg v. Excise Commr.,U.P.,Allahabad3. A question in
this case was whether the Apex Court could frame a rule or pass an order inconsistent with the
fundamental rights while doing complete justice to the parties. The learned judge, in this regard, stated
that while doing complete justice to the parties, the order issued must only be consistent with the
fundamental rights guaranteed by the Constitution but it should also be consistent with the substantive
provisions of the relevant statutory laws.
This view was approved by the same learned judge in cases Naresh Shridhar Mirajkar v State of
Maharashtra4 as well as A.R Antulay v R.S Nayak5 decided by a bench of nine judges and seven judges
respectively.
This view was also reiterated in the case of Arjun Khiamal Makhijani v Jamnadas C. Tuliani6, where it
stated that Art 142 does not intend to ignore mandatory statutory provisions while doing justice to one
party and thereby doing complete injustice to other party by depriving the party from assistance of the
mandatory provisions.
However, this view was soon overturned in the case of Delhi Judicial Service Assn v. State of Gujarat7
where it was stated that the powers bestowed to Supreme Court under Art. 142(1) to do “complete

1
INDIA CONST. art 142, cl.1.
2
INDIA CONST. art 142,cl. 2.
3
Prem Chand Garg vs Excise Commissioner, U. P. (1963) 1 SCR 885.
4
Naresh Shridhar Mirajkar And Ors vs State Of Maharashtra And Anr, (1966) 3 SCR 744.
5
A.R. Antulay vs R.S. Nayak & Anr, (1988) AIR 1531.
6
Arjun Khiamal Makhijani Etc vs Jamnadas C. Tuliani & Ors. Etc, (1989) 4 SCC 614.
7
Delhi Judicial Service ... vs State Of Gujarat And Ors. Etc-Etc, (1991) 3 SCR 936.
justice” was entirely of different level and quality. It was emphasized that any prohibition from the
ordinary laws cannot limit the constitutional power of this court.
This view was also approved in the case of Union Carbide Corp. v Union of India8 .
In the case of Bonkya v State of Maharashtra9, it was held that the arena of powers available to the Apex
Court under Art 142(1) is not conditioned by any provision but nevertheless, even though the Court
exercises this jurisdiction in order to serve justice to the parties but it should not be in disregard to the
relevant statutory provisions.
However, the Court in the case of Supreme Court Bar Assn. v Union of India10 took the position that it
gets unlimited power from Art. 142(1). But it also did adopt a more cautious approach this time. The
court held that these constitutional powers under Art 142(1) cannot be controlled by any statutory
provisions in any way but if their exercise comes directly in conflict with expressly mentioned relevant
provisions then these are not meant to be exercised.
Supreme Court Bar Assn was also referred in the case M.S Ahlawat v State of Haryana 11 where it was
held that the order passed by SC b issuing a notice and conviction under Sec 193 of the Indian Penal
Code for making false statement was without jurisdiction and thus Art 142(1) could not be invoked.
Similarly, in M.C Mehta v Kamal Nath12, it held that the power of Art. 142 cannot be used an aid in
situations where action under it would amount to infringing of another specific provision of a statute.
From the above judgments, we draw a conclusion that the decisions rendered in Garg13 and Antulay14
reflect the proper position of the interpretation.
We can also draw that the two words ‘complete justice’ cannot enlarge the scope of Art 142 and while
construing the meaning of the Art., it is the scheme of the article which is to be looked into.
Art 142 also has a link with Section 151 of Civil Procedure Code, 1908 and Section 482 of Criminal
Procedure Code, 1973. These provisions deal with inherent powers and Art 142(1) substantially uses
words occurring in the mentioned provisions. Since these are procedural law, also gives us an idea of
the procedural aspects of Art 142(1). Therefore, complete justice can be done to cure procedural
susceptibilities and does not confer any substantive power.
One of the major points to consider while interpreting any article is the key to understanding the
intention behind the mentioned article. Same is the case with Art 142 which is actually the Art 118 of
the Draft Constitution. It is very important to know that no debate took place in the floor of Constituent
Assembly while considering the words “complete justice”. This absence of any discussion on “complete
justice” would also go to show that the article is intended for procedural purposes only.
However, while interpreting “complete justice”, reading the words in isolation would also lead to the
wrong interpretation. They occur in Art 142 to which Cl 2 also forms a part.
A bare reading of Art 142(2) also proves that Art 142 is an article of procedure:
Art 142(2) confers three different types of powers on the Supreme Court. They are
1. Securing attendance of persons before it.

8
Union Carbide Corporation vs Union Of India (Uoi) And Ors. Jana, (1989) 3 SCC 38.
9
Bonkya Alias Bharatshivaji Mane ... vs State Of Maharashtra, (1995) 6 SCC 447.
10
Supreme Court Bar Association vs Union Of India & Anr, (1998) SC 1895.
11
M.S.Ahlawat vs State Of Haryana And Anr, (2000) 1 SCC 278.
12
M. C. Mehta v. Kamal Nath, (1977) 1 SCC 388.
13
supra note 3, at 2.
14
supra note 5, at 2.
 2. Discovery and production of documents.
3. Investigation and punishment of contempt of itself.

The first two powers are evidently in the area of law of evidence and hence their procedural aspect. The
third power is read with Art 129 of Constitution of India, which states that the Supreme Court shall be
a court of record and shall have all the powers of such a court including the power to punish for contempt
of itself, shows that it also deals with the procedural aspect.
Our Constitution bestows powers to two articles i.e. Art. 129 and Art. 142(2) in dealing with contempt
power of the Supreme Court. It is enhanced by Art. 142(2) which inter alia, deals with the investigation
and punishment of the contempt of Supreme Court. Art. 129 confers substantive power on the Supreme
Court to punish for contempt of itself. Art.142(2) enhances it by specifically conferring power of
investigation and punishment. The area of investigation is admittedly a procedural law.
All these factors strengthen the view that Art. 142 is a procedural aspect of law and thus, the
interpretation of “complete justice” to the effect that statutory provisions may be overruled, is clearly
erroneous.
But the most important question that still remains is about the reason for insertion of this provision
under Art. 142.
This was answered in Prem Chand Garg v Excise Commr., U.P.,Allahabad as follows :
“It may be pertinent to point out that wide powers which are given to this Court for doing complete
justice between the parties, can be used by this Court, for instance, in adding parties to the proceedings
pending before it, or in admitting additional evidence, or in remanding the case, or in allowing a new
point to be taken for the first time. It is plain that in exercising these and similar other powers, this 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.”15
These observations indicate that the complete justice provision can be invoked for only procedural
purposes. Hence, Art. 142 does not confer substantive power on the Apex Court to do “complete
justice”.

15
supra note 3, at 2