Can the Judiciary Override Statutory Provisions?

“Power to do Complete Justice”: Can Judiciary override Statutory Provisions?

1. Introduction

The Constitution of India is the central rule that everyone has to follow from which all different laws determine their power and with which they must adjust. All powers of the state and its diverse organs have their source in it and must be practiced subject to the conditions and constraint set down in it. The Constitution accommodates the parliamentary type of government which lacks strict partition between the executive and the legislature yet keeps up clear partition between them and the judiciary. Under Article 142 of the Indian Constitution, the Supreme Court has the power to do “complete justice” which is subject to the fundamental rights guaranteed by the Constitution in any case pending before it.

2. Objective

The Supreme Court of India is the protector and guarantor of all the rights of the citizens of the country and is vested with the obligation to do “complete justice” between the parties. The main objective of this paper is to discuss the nature and scope of the absolute jurisdiction of the Supreme Court as under Article 142. The main issue lies as to the sufficiency of the Article 142 to do “complete justice” and the main debated topic is regarding whether Article 142 can be invoked to pass an order which is contradicting to the statutory provisions. This paper attempts to discuss the power and extent of the judiciary to do complete justice, the limitations bound on it.

3. Nature and Scope of the power to do “complete justice”

The Article 142 of the Indian Constitution presents ancillary or incidental powers upon the Supreme Court for doing complete justice in any case pending before it. It engages the Supreme Court to do complete justice and lessen the gap between legal justice and real justice. It based on two principles that the Supreme Court in the activity of its jurisdiction can pass decree or make such order as is vital for doing complete justice in any reason or matter pending before it. This decree passed or order made would be enforceable all through the territory of India in such way as may be recommended by Parliament by making a law. And, the Supreme Court as regards to the territory of India has complete power to make any order for the purpose of ensuring complete justice to a person. This power of the Supreme Court under Article 142 is restricted to the provisions made by the Parliament[1]. This article is designedly made comprehensive in order to enable the Supreme Court to make law and to pass orders and decisions as are required to do “complete justice”[2]. The use of the expression “complete justice” assumes that an order or judgment that has been passed and further orders being made in the specific matter, it envisages a subordinate order to the principle judgment so as to guarantee that “complete justice” is rendered in the matter is not disappointed by any procedural obstacles. The power is usually exercised in situations where there is a distinct error and the ignorance of Article 142 would lead to the tragedy of injustice. There must be solid and convincing reasons that the parties of the matter in dispute would suffer total injustice if this power of the Court is not used. It is similar in the situation where the law or the statutory provisions are not capable of removing the grievances of the people or where the cohesion to the statutory provisions or procedural guidelines would be unjustified in the circumstances of the case. Under the circumstances where the law is discovered to be insufficient or the Court is of the vision that there is a prospect of injustice being done to the matter in dispute only then it can use its powers under Article 142 to do “complete justice”. The Supreme Court in Supreme Court Bar Association v. Union of India[3] stated that the powers of the Supreme Court under Article 142 of the Constitution is inbuilt power to the Court and is complimented to those powers which are particularly presented on the court by different statutes however are not restricted by those statutes. These powers exist free of statutes with a perspective to do complete justice between the parties in dispute. In Delhi Judicial Service Assn. v. State of Gujarat[4], when the Supreme Court quashed the criminal proceedings against the Chief Judicial Magistrate it had been challenged by the respondents. The Chief Judicial Magistrate was suspected of corruption and was handcuffed and a case was filed. The Supreme Court severely punished the police and had dismissed the complaint against the judge. Supreme Court has the power to determine its own jurisdiction and it would be the final decision. Supreme Court has ample power to do complete justice and the need for “complete justice” would rely on the facts and circumstances of case. The Court’s power under Article 142(1) to do “complete justice” is completely of diverse level and of a different quality. The power under Article 142 cannot contemplate doing justice to a party by ignoring any statutory provisions. The inbuilt powers of the Supreme Court under Article 142 together with the absolute powers under Articles 32 and 136 allows power to quash any criminal proceedings pending before any court to do “complete justice” in the matter. In this case it was also held that Article 142 is part of the basic structure of the Constitution. In Mohammed Anis v. Union of India[5], the Supreme Court held that the power under Article 142 is wide and cannot be restricted even by a statutory provision. The question regarding the extent of this power of the Supreme Court under Article 142 has been discussed in this case and this has been discussed from Delhi Judicial Service Assn. v. State of Gujarat[6], in the case the Court had observed that the power granted to the Court by Article 142(1) together with the absolute powers under Articles 32 and 136 enables the Court to pass such orders as it finds to be necessary to do complete justice to the reason or matter brought before it. The court held that no legislative authorization of the Union or the State can confine or control the power of the Supreme Court under Article 142 of the Constitution but when using this power the Court has to take into consideration the provisions relating to the matter in dispute[7]. The Supreme Court has exercised the powers under Article 142 to support its statutory jurisdictions including jurisdiction under Article 32 and for various other purposes. The Supreme Court had granted suitable orders in many other matters such as divorce which could not have been done by following the ordinary laws, orders of CBI enquiry, imposition of exemplary costs, and payment of compensation to rape victim, etc[8].

4. Limitations

In Prem Chand Garg v. Excise Commr[9], the limitations of the power of the Supreme Court to do “complete justice” had been discussed and the main issue before the Court was that whether the Supreme Court could exercise the power under Article 142 inconsistent with any of the fundamental rights under the Constitution. It was stated that this power of the Supreme Court to do “complete justice” has to be consistent with the fundamental rights and also with substantive provisions of the relevant statutory provisions[10]. This view had been accepted in other cases like Naresh Shridhar Mirajkar v. State of Maharashtra[11] and A. R Antulay v R. S Nayak[12]. In Union Carbide Corporation v. Union of India[13], the court stated that no forbiddance or limitations or other procurement in ordinary laws can restrictions the constitutional powers of the Court under Article 142. The forbiddances can be demonstrated to be focused on fundamental and public policy arrangement and not only coincidental to a specific statutory scheme or method[14]. This power under Article 142 is exclusively available to the Supreme Court, the High Court’s power under Article 226 is not same with the constitutional jurisdiction power of the Supreme Court. The Supreme Court’s power under Article 142 is not available to the High Courts. The Supreme Court and the High Courts are both enabled to do “complete justice” under the Constitution of India however the High Court has to deliver justice inside a specific domain and the Supreme Court being the ultimate court of law is not bound by such restrictions

5. Conclusion

The power of the Supreme Court to do “complete justice” is of wide nature. The Supreme Court's power under Article 142 to do "complete justice" is completely on a divergent level and quality[15]. Any prevention or restriction contained in ordinary laws cannot act as a limitation on this constitutional power of this Court. The Supreme Court in the performance of its jurisdiction under Article 142 has the right to make any order as required for doing “complete justice” between the parties in any cause or matter pending before it." But it cannot disregard a statutory provision covering the subject. This power can only be exercised in cases where grave injustice would occur if the Court does not use this power. The correct position of Article 142 is that the Court would follow the ordinary procedure following the statutory laws but under circumstances where statutory provisions are not inadequate for the removal of grievance of the people or in certain cases where the facts and circumstances are of peculiar character. But there are certain restrictions to this power. This power is subject to the fundamental rights granted by the Constitution and also when there are substantive provisions of the relevant statutory provisions. The absence of any Constitutional Assembly Debate suggests that the powers under Article 142 should remain undefined in nature so that the Court can develop its own jurisprudence. Article 142 empowers the Supreme Court is a depository of unlimited powers to do complete justice.

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[1] Sopan Ivare, 'POWER OF THE SUPREME COURT TO DO COMPLETE JUSTICE - JUDICIAL PERSPECTIVES' [2010] International Referred Research Journal ISSN 16. [2] Reyneck Matemba, 'Judicial Activism' [2011] European Journal of Law Reform 2011 (13) 2 279, 13 Eur. J.L. Reform 277 2011. [3] AIR (1998) SC 1895. [4] AIR (1991) SC 2176. [5] (1994) SCC Supl (1) 145. [6] AIR (1991) SC 2176. [7] Harish. B.N., 'Supreme Court, Complete Justice and Article 142: Scope for Unlimited Judicial Action' [1995] 82, 7 Student Advoc. 82 1995. [8] Mahendra Pal Singh, V. N. Shukla’s Constitution of India (12th edn, Eastern Books Co, 2013)560. [9] AIR (1963) SC 996. [10] Mahendra Pal Singh, V. N. Shukla’s Constitution of India (12th edn, Eastern Books Co, 2013)556. [11] AIR (1966) SCR (3) 744. [12] AIR (1988) SCR 1531. [13] AIR (1992) SC 317. [14] Harish. B.N., 'Supreme Court, Complete Justice and Article 142: Scope for Unlimited Judicial Action' [1995] 82, 7 Student Advoc. 82 1995. [15] M. P. Singh, 'SECURING THE INDEPENDENCE OF THE JUDICIARY-THE INDIAN EXPERIENCE' [2000] IND. INT'L & COMP. L. REv. 245, 10 Ind. Int'l & Comp. L. Rev. 245 1999-2000.

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