Constitution of India

Article 142. “Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.—

The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next Article in the series on constitutional provisions in order to aid our readers in understanding them.

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.”

Article 142 of the Constitution is one of those articles which have created a lot of uncertainty and even confusion in the matter of the position and role of the Supreme Court vis-à-vis the Constitution. The Constitution that ‘We, the People of India’ gave to ourselves, in exercise of our sovereign powers, provided for a Supreme Court inter alia to declare the law which shall be binding on all courts in India (article 141). Obviously the intention was that the wise men in the Supreme Court would analyse, explain and interpret the law for all to understand and, in particular, remove any existing ambiguity and vagueness and declare the precise law. Unfortunately, the way in which provisions like article 142 have been interpreted, the law of the Constitution has been made more vague and unclear. In fact, the court has gone so far as to extol vagueness as a virtue when it said that it was advisable to leave its own powers under article 142 “undefined”, “uncatalogued”, “elastic” and not subject to limitation under any statutory law.

It seems the Supreme Court has failed to decisively declare the law under article 142 inasmuch as

(i) the view taken by the Supreme Court in 1963 was overruled as not being good law in 1995;

(ii) a judgment in 1996 made a case for keeping the power under article 142 “undefined” and “elastic” in other words, not declaring the law and leaving it “to be moulded” to suit different situations by the subjective whims of the individual judges from time to time;

(iii) what was established by the 1995 judgment was overturned in 1998 by another judgment.
The result is that the law is kept vague, undefined and elastic with the court keeping to itself to interpret it and decide in its discretion as it seems fit in each case.

The marginal heading to article 142 is clearly indicative of the fact that the main focus of the article is on providing for the ‘enforcement’ of decrees and orders of the Supreme Court. It is not on any special powers of the Supreme Court.

Article 142 was not envisaged as an independent and separate source of substantive power to the Supreme Court. A dispassionate reading of the text of the article makes it clear that under clause (1):

(1) the Supreme Court may issue a decree or order only “in exercise of its jurisdiction” i.e., it cannot exceed its assigned jurisdiction.

(2) only such decrees and orders may be passed as are “necessary for doing complete justice” to the parties before the court in any cause or matter.

(3) only a “decree so passed or order so made” “shall be enforceable throughout the territory of India”.

(4) the manner in which a decree or order of the court shall be enforceable shall be as “prescribed by or under any law made by Parliament” and in the interim as prescribed by the President.

Clause (2) provides for the Supreme Court having the power to secure:

(a) attendance of any person,

(b) discovery or production of any document,

(c) investigation or punishment of any contempt of itself.

But, it is important to note that all these powers are subject to statutory laws. In fact article 142(2) opens with the words “Subject to the provisions of any law made in this behalf by Parliament”.

In the face of such clear and specific assertion of the primacy and supremacy of Parliamentary law in both the clauses of article 142, it is surprising how it could be held that the powers under article 142 cannot be controlled by any statutes passed by the Parliament [when the manner of enforcement of orders and decrees of the court is under the authority of the legislature and the executive vide article 142(1) and when all the powers regarding calling for persons and papers and punishing for contempt of itself are subject to parliamentary law vide article 142(2)].

The decisions that have come from the Supreme Court have interpreted the ratio of article 142 differently – sometimes it has been interpreted strictly and narrowly and at other times very widely and liberally. In fact, within the same judgment sometimes almost contradictory positions are held e.g., it is said that the powers under article 142 cannot be controlled by any statute but they cannot be so exercised as to come in conflict directly or indirectly with a statute in that regard.

The middle path adopted and the view propounded in Vineet Narain v. Union of India, AIR 1998 SC 889: (1998) 1 SCC 226 and Vishakha v. State of Rajasthan, AIR 1997 SC 3011: (1997) 6 SCC 241: 1997 (5) SCALE 453 seems more judicious when it concedes that the job of the Supreme Court is only to fill the vacuum by its orders till the executive or the legislature step in to perform their role.

The statement of the Supreme Court to the effect that “it is well recognised and established that this court has always been a law-maker” is the clearest example of the court exceeding its jurisdictional limits and assuming the law-making powers of the legislature. If the court is recognised as the law-maker, what remains of the functions of Parliament as a law-making body and as the supreme representative institution of the people?

Again, to draw plenary powers from article 142 as a source of substantive powers, in particular, to ensure the observance of the due process of law, is an affront to the founding fathers who spent long hours deliberating and discussing the matter and finally deciding very categorically not to incorporate in the Constitution this U.S. doctrine. The Constituent Assembly instead adopted the formulation of ‘in accordance with the procedure established by law’ made by Parliament. More atuned to American judicial thinking and perhaps not so respectful to the clear words of the Constitution, our Supreme Court seems to bring back by the backdoor the due process clause rejected by the founding fathers.

Source: Dr Subhash C Kashyap, Constitutional Law of India

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