Why in News?
- With Supereme Court’s ruling on divorce, the power has been criticised on ground of seperation of power doctrine.
For Prelims: Article 142, Seperation of power
For Mains: Criticism of Article 142
What is Article 142 of the Constitution?
Article 142 provides a unique power to the Supreme Court, to do “complete justice” between the parties, where, at times, the law or statute may not provide a remedy. In those situations, the Court can extend itself to put an end to a dispute in a manner that would fit the facts of the case.
Criticism of Article 142
- Overreach of Judicial Power: Critics argue that the use of Article 142 can lead to judicial overreach, where the judiciary may encroach upon the domains of the executive or legislative branches of government. This could potentially disrupt the balance of power among the three branches of government.
- Lack of Clear Guidelines: There are no clear guidelines or limitations on when and how Article 142 can be invoked. This ambiguity can lead to inconsistent application and interpretation.
- Potential for Misuse: The broad and discretionary nature of Article 142 can potentially lead to misuse or abuse of power. There is a risk that it could be used to bypass the due process of law.
- Lack of Transparency and Accountability: Decisions made under Article 142 are often not subject to review or appeal, which can lead to a lack of transparency and accountability.
- Impact on Federal Structure: The use of Article 142 can potentially impact the federal structure of India, as it can override state laws and regulations.
- In 1998, the apex court in ‘Supreme Court Bar Association vs Union of India’ held that the powers under Article 142 are supplementary in nature and could not be used to supplant or override a substantive law and “build a new edifice where none existed earlier”.
- Prem Chand Garg (1962) laid down that “an order to do complete justice…must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws”.
- However, the Drafting Committee of the Indian Constitution was mindful of the wide-reaching nature of the powers and reserved it only for exceptional situations, which the existing law would have failed to anticipate.
Against Seperation of Power
Montesque – The spirit of Law
According to seperation of power
- One person should not be in more than one organ of the govt.
- One organ of the govt, should not interfere into the functioning of other organ.
- One organ of the govt, should not exercise functions assigned to the other.
Way Ahead & Conclusion
- The Apex Court could make a strict guideline that justifies the use of Article 142 and promotes judicial restraint.
- The SC can, in every such case, ensure that it would be a “complete justice” for the society without affecting the rights of citizens.
- The Drafting Committee of the Indian Constitution was mindful of the wide-reaching nature of the powers and reserved it only for exceptional situations.