CJP cases scrapped: Supreme Court’s much-debated powers under Article 142

Why in the News

The Supreme Court has used Article 142 of the Constitution to quash first information reports filed across several States against participants in the nationwide examination protests led by the Cockroach Janta Party (CJP). The order gives legal force to an assurance the Union government had already given to CJP members. A negotiated settlement between the Centre and a protest group therefore takes effect as a judicial decree. Article 142 allows the Court to pass any decree or order necessary for doing “complete justice” in a matter pending before it, and it neither defines that phrase nor states when the power may be used. The Court has itself held that this power may fill a gap in a statute but may not override a statutory scheme. What is contested is whether quashing thousands of pending cases in a single order, without examining any of them on its own facts, fills such a gap or replaces one.

What is Article 142?

1. The text of the power: Article 142 lets the Supreme Court pass such decree or order as is necessary for doing complete justice in any cause or matter pending before it.
2. What the provision leaves open: It does not define “complete justice” and it does not specify the circumstances in which the power may be used.
3. Its statutory ancestor: The provision traces to Section 210 of the Government of India Act, 1935, and behind that to the colonial practice of deciding disputes on “justice, equity and good conscience” where the written law was silent.

How did a power this wide enter the Constitution without debate?

1. Adopted as Draft Article 118: The provision appeared in the Draft Constitution as Article 118 and was adopted by the Constituent Assembly on 27 May 1949 without a debate.
2. Two amendments were dropped: Two amendments to it were moved and then withdrawn.
3. The nearest the Assembly came to discussing it: During an earlier debate on a related Article granting the court special leave to hear appeals, the member Krishna Chandra Sharma compared the proposed powers to the Privy Council’s own power to step in wherever justice demanded, appeal or no appeal.
4. The scope was left to the Court: The content of the Court’s widest power was worked out case by case over the following seven decades rather than settled at the drafting stage.

How has the Court used this power?

1. The Bhopal gas tragedy settlement: Article 142 was used to secure a payout of 470 million dollars from Union Carbide and to quash the criminal cases against the company.
2. The Ayodhya title dispute: The power was used to settle the dispute on a “preponderance of probability” and to direct that five acres of land be given to the Muslim side.
3. A convict’s release: The Court ordered the release of A G Perarivalan, a convict in the Rajiv Gandhi assassination case.
4. Routine civil use: The provision is also used to grant divorce where a marriage has irretrievably broken down, and in public interest litigation.
5. The measured scale of its use: An empirical study by researchers at the Indian Institute of Management, Ahmedabad examined every case between 1950 and 2023 citing “Article 142” or “complete justice”, and found 1,579 references and 791 direct invocations, mostly in civil matters.

Has the Court fenced its own power?

1. Consistency with law and rights: In Prem Chand Garg versus State of Uttar Pradesh (1962) the Court held that orders under Article 142 must still be consistent with fundamental rights and with the law.
2. Supplement, not supplant: In Supreme Court Bar Association versus Union of India (1998) the Court held that Article 142 can supplement a statute by filling a gap the law leaves open. The same ruling held that it cannot supplant a statute or override an existing statutory scheme.
3. The limits are not self enforcing: The Court has often disregarded its own caution, and no institution outside the Court can hold it to these two rulings.
4. Discretion multiplies across benches: The effect of an undefined discretion is magnified in a court of 38 judges sitting mostly in benches of two.

How does the CJP order test that limit?

1. The ordinary statutory route: A first information report is examined on its own facts before being quashed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, with the court asking whether an offence is made out or whether the case is plainly malicious.
2. What the order did instead: Thousands of first information reports across several States were clubbed together and quashed without that scrutiny, as part of a negotiated settlement.
3. The statutory scheme is displaced, not supplemented: The order substitutes the Court’s view of how the law ought to operate for the procedure the statute lays down for quashing.
4. The Court also decides who is excluded: The same discretion under Article 142 determines which protesters are left out of the relief.
5. The scholarly objection: Legal scholar Gautam Bhatia argues that criminal law provisions cannot be overridden through a blanket judicial decree.

Why had Article 142 already drawn criticism?

1. The Tamil Nadu Bills order: The Court used the same provision last year to deem long withheld Bills of the Tamil Nadu legislature as assented to.
2. The response from the Vice President: The Vice President described that use of the power as a “nuclear missile” against democratic institutions.
3. A former law officer’s warning: A former Attorney General of India wrote in 2017 that the provision had done “tremendous good” for deprived sections of society, and that it was time to build in checks and balances.
4. A proposal to restrict who may invoke it: After the Sabarimala judgment the same former Attorney General described Article 142 as a “Kamdhenu from which unlimited powers flowed”, and proposed that only Constitution Benches of five judges be allowed to invoke it, so that its use does not turn on the reading of a single smaller Bench.

Challenges to Article 142

1. No stated standard for “complete justice”: The Constitution attaches no test to the power, so its width is settled afresh in each case by the Bench exercising it. Eg. In Delhi Development Authority versus Skipper Construction Company (1996) the power was used to reach the personal assets of persons who were not parties to the proceeding before the Court.
   The Fix: Require every order made under the provision to record on the face of the order the specific statutory gap it is filling and the limits of the relief granted.
2. Bench strength does not scale with the consequence: No minimum Bench is prescribed, so an order altering an outcome for an entire class can issue from a small Bench. Eg. A three judge Bench in 2024 set aside the declared result of the Chandigarh mayoral election and declared the defeated candidate elected.
   The Fix: Maintain a published, reasoned compilation of orders made under the provision, so a body of standards accumulates instead of scattered discretion.
3. The relief creates no right for the next litigant: An order for complete justice is granted on the facts of one case, so a similarly placed person cannot claim the same relief from a lower court. Eg. Divorce on the ground of irretrievable breakdown, allowed in Shilpa Sailesh versus Varun Sreenivasan (2023), is available only from the Supreme Court, since that ground does not exist in the Hindu Marriage Act, 1955.
   The Fix: Where the power is repeatedly used to fill the same statutory gap, refer that gap to the Union government with a reasoned recommendation to amend the statute.
4. Only the same court can correct such an order: An order issues from the highest court, so the sole remedy is a review or a curative petition before that court. Eg. The curative petition route created in Rupa Ashok Hurra versus Ashok Hurra (2002) is itself a judge made remedy and succeeds in very few cases.
   The Fix: List every order that departs from a statutory scheme for a compliance hearing before the same Bench, so an order that misfires is corrected on the record.

Conclusion

The Court’s limits on its own widest power are self imposed, and nothing outside the Court enforces them. The unresolved question is whether a power designed to fill silences in the law may be used to set aside a procedure the law expressly provides, on terms agreed between a litigant and the government. What to watch is whether the Court itself frames a standard for when the power may be exercised, because no other institution can.

Back2Basics: Bharatiya Nagarik Suraksha Sanhita, 2023

1. What it is: The statute governing criminal procedure in India, covering investigation, arrest, trial and the powers of criminal courts.
2. What it replaced: It came into force on 1 July 2024 in place of the Code of Criminal Procedure, 1973.
3. Its companion statutes: It was enacted alongside the Bharatiya Nyaya Sanhita, 2023 and the Bharatiya Sakshya Adhiniyam, 2023.
4. The quashing power it carries: Section 528 preserves the inherent powers of a High Court, which include quashing proceedings to prevent abuse of the process of a court.

Matching Previous Year Question

“[2019, GS2, 10 marks] Do you think that constitution of India does not accept principle of strict separation of powers rather it is based on the principle of ‘checks and balance’? Explain.”