Judicial Dictionary

Curative nature of Article 142 of Indian Constitution

Curative Power

The plenary powers of this Court under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power, exists as a separate and independent basis of jurisdiction, apart from the statutes. It stands upon the foundation, and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which this Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of LAW, to do complete justice between the parties, while administering justice according to LAW. There is no doubt that it is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Court to prevent “clogging or obstruction of the stream of justice”. It, however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignorethe substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to “supplant” substantive LAW applicable to the case or cause under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring expression statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. Punishing a contemner advocate, while dealing with a contempt of Court case by SUSPENDING his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the contemner is also an advocate, is, therefore, not permissible in exercise of the jurisdiction under Article 142. The construction of Article 142 must be functionally informed by the salutary purposes of the Article viz. to do complete justice between the parties. It cannot be otherwise. As already noticed in a case of contempt of Court, the contemner and the Court cannot be said to be litigating parties.

The Supreme Court in exercise of its jurisdiction under Article 142 has the power to make such order as is necessary for doing complete justice “between the parties in any cause or matter pending before it.” The very nature of the power must lead the Court to set limits for itself within which to exercise those powers and ordinarily it cannot disregard a statutory provision governing a subject, except perhaps to balance the equities between the conflicting claims of the litigating parties by “ironing out the creases” in a cause or matter before it. Indeed this Court is not a Court of restricted jurisdiction of only dispute settling. It is well recognised and established that this Court has always been a LAW maker and its role travels beyond merely dispute settling. It is a problem solver in the nebulous areas”. (See K. Verraswami v. Union of India, (1991) 3 SCC 655) but the substantive statutory provisions dealing with the subject-matter of a given case, cannot be altogether ignored by this Court, while making an order under Article 142. Indeed, these constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject.

In Bonkya alias B. S. Mane v. State of Maharashtra, (1995) 6 SCC 447 a bench of this Court observed:

“The amplitude of powers available to this Court under Article 142 of the Constitution of India is normally speaking not conditioned by any statutory provision but it cannot be lost sight of that this Court exercises jurisdiction under Article 142 of the Constitution with a view to do justice between the parties but not in disregard of the relevant statutory provisions.”

Dealing with the powers of this Court under Article 142, in Prem Chand Garg v. Excise Commr., U.P., Allahabad, (1963) 1 Suppl. SCR 885 it was said by the constitution Bench:

“In this connection, it may be pertinent to point out that the 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 exercise 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.

That takes us to the second argument urged by the Solicitor-General that Art. 142 and Art. 32 should be reconciled by the adoption of the rule of harmonious construction. In this connection, we ought to bear in mind that though the powers conferred on this Court by Art. 142(1) are very wide, and the same can be exercised for doing complete justice in any case, as we have already observed this Court cannot even under Art. 142(1) make an order plainly inconsistent with the express statutory provisions of substantive LAW, much less, inconsistent with any constitutional provisions. There can, therefore be no conflict between Art. 142(1) and Art. 32. In the case of K. M. Nanavati v. State of Bombay, (1961) 1 SCR 497 on which the Solicitor-General relies, it was conceded, and rightly, that under Art. 142(1) this Court had the power to grant bail in cases brought before it, and so, there was obviously a conflict between the power vested in this Court under the said Article and that vested in the Governor of State under Art. 161. The possibility of a conflict between these powers necessitated the application of the rule of harmonious construction. The said rule can have no application to the present case, because on a fair construction of Art. 142(1), this Court has no power to circumscribe the fundamental right guaranteed under Art. 32. The existence of the said power is itself in dispute, and so, the present is clearly distinguishable from the case of K. M. Nanavati.”

(Emphasis ours)

In Re: Vinay Chandra Mishra’s case (supra), the three Judge Bench did notice the observations in Prem Chand Garg’s case (supra) but opined :

“In view of the observations of the latter Constitution Bench on the point, the observations made by the majority in Prem Chand Garg’s case (supra) are no longer a good LAW. This is also pointed out by this Court in the case of Mohammed Anis v. Union of India, (1994) 1 Suppl. SCC 145 by referring to the decisions of Delhi Judicial Services v. State of Gujarat, (supra) and Union Carbide Corporation v. Union of India, (supra) by observing that statutory provisions cannot override the constitutional provisions and Article 142(1) being a constitutional power it cannot be limited or conditioned by any statutory provision. The Court has then observed that it is, therefore, clear that the power of the Apex Court under Article 142(1) of the Constitution cannot be diluted by statutory provisions and the said position in LAW is now well settled by the Constitution Bench decision in Union Carbide’s case (supra).”

(Emphasis supplied)

Commenting upon the observations in Prem Chand Garg’s case (supra) the Bench further opined (at pp. 3513-14 of AIR):

“Apart from the fact that these observations are made with reference to the powers of this Court under Art. 142 which are in the nature of supplementary powers and not with reference to this Court’s power under Article 129, the said observations have been explained by this Court in its latter decisions in Delhi Judicial Services Association v. State of Gujarat, (supra) and Union Carbide Corporation v. Union of India, (1991) 4 SCC 584 . In paragraph 51 of the former decision, it has been, with respect, rightly pointed out that the said observations were made in the context of fundamental rights. Those observations have no bearing on the present issue. No doubt, it was further observed there that those observations have no bearing on the question in issue in that case as there was no provision in any substantive LAW restricting this Court’s power to quash proceedings pending before subordinate Courts. But it was also added there that this Court’s power under Article 142(1) to do complete justice was entirely of different leave and of a different quality.”

As we shall presently see, there is nothing said in either Delhi Judicial Service Association’s case (supra) or the Union Carbide’s case (supra) from which it may be possible to hold that the LAW laid down in Prem Chand Garg’s case (supra) is “no longer a good LAW”. Besides, we also find that in Mohd. Anis case (1994) 1 Suppl. SCC 145) referred to by the Bench, there is no reference made to Prem Chand Garg’s case at all.

In Delhi Judicial Service Association Tis Hazari v. State of Gujarat, (1991) 3 SCR 936 the following questions fell for determination:

“(a) whether the Supreme Court has inherent jurisdiction or power to punish for contempt of subordinate or inferior Courts under Art. 129 of the Constitution, (b) whether the inherent jurisdiction and power of the Supreme Court is restricted by the Contempt of Courts Act, 1971, (c) whether the incident interfered with the due administration of justice and constituted contempt of Court, and (d) what punishment should be awarded to the contemners found guilty of contempt.

The Court observed:

“Article 142(1) of the Constitution provides that Supreme Court in 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. The expression ‘cause’ or ‘matter’ would include any proceeding pending in Court and it would cover alomst every kind of proceeding in Court including civil or criminal. The inherent power of this Court under Article 142 coupled with the plenary and residuary powers under Articles 32 and 136 embraces power to quash criminal proceedings pending before any Court to do complete justice in the matter before this Court.”

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Mr. Nariman urged that Article 142(1) does not contemplate any order contrary to statutory provisions. He placed reliance on the Courts observations in Prem Chand Garg v. Excise Commissioner, U.P. Allahabad, (1963) 1 Suppl. SCR 885 at 899:(p. 1003) and, A. R. Antulay v. R. S. Nayak, (1988) 2 SCC 602 where the Court observed that though the powers conferred on this Court under Article 142(1) are very wide, but in exercise of that power the Court cannot make any order plainly inconsistent with the express statutory provisions of substantive LAW. It may be noticed that in Prem Chand Garg’s and Antulay’s case (supra) observations with regard to the extent of this Court’s power under Article 142(1) were made in the context of fundamental rights. Those observations have no bearing on the question in issue as there is no provision in any substantive LAW restricting this Court’s power to quash proceedings pending before subordinate Court. This Court’s power under Article 142(1) to do “complete justice” is entirely of different level and of a different quality. Any prohibition or restriction contained in ordinary LAWs cannot act as a limitation on the constitutional power of this Court. Once this Court has seisin of a cause or matter before it, it has power to issue any order or direction to do “complete justice” in the matter. This constitutional power of the Apex Court cannot be limited or restricted by provisions contained in statutory LAW.”

The Bench went on to say:

“No enactment made by Central or State Legislature can limit or restrict the power of this Court under Article 142 of the Constitution, though while exercising power under Article 142 of the Constitution, the Court must take into consideration the statutory provisions regulating the matter in dispute. What would be the need of “complete justice” in a cause or matter would depend upon the facts and circumstances of each case and while exercising that power the Court would take into consideration the express provisions of a substantive statute. Once this Court has taken seisin of a case, cause or matter, it has power to pass any order or issue direction as may be necessary to do complete justice in the matter. This has been the consistent view of this Court as would appear from the decisions of this Court in State of U.P. v. Poosu, (1976) 3 SCR 1005 ; Ganga Bishan v. Jai Narain, (1986) 1 SCC 75 ; Navnit R. Kamani v. R. R. Kamani, (1988) 4 SCC 387; B. N. Nagarajan v. State of Mysore, (1966) 3 SCR 682 ; Special Reference No. 1 of 1964 (supra), and Harbans Singh v. State of U.P., (supra).”

(Emphasis supplied)

In A. R. Antulay v. R. S. Nayak, (1988) 2 SCC 602 , a seven Judge Bench of this Court said:

“The reliance placed in this context on the provisions contained in Articles 140 and 142 of the Constitution and Section 401 read with Section 386 of the Cr.P.C. does not also help. Article 140 is only a provision enabling Parliament to confer supplementary powers on the Supreme Court to enable it to deal more effectively to exercise the jurisdiction conferred on it by or under the Constitution Article 142 is also not of much assistance. In the first place, the operative words in that article, again are “in the exercise of its jurisdiction”. The Supreme Court was hearing an appeal from the order of discharge and connected matters. There was no issue or controversy or discussion before it as to the comparative merits of a trial before a Special Judge vis-a-vis one before the High Court. There was only an oral request said to have been made, admittedly, after the judgment was announced. Wide as the powers under Article 141 are, they do not in my view, envisage an order of the type presently in question. The Nanavati case (supra), to which reference was made by Shri Jethmalani, involved a totally different type of situation. Secondly, it is one of the contentions of the appellant that an order of this type, far from being necessary for doing complete justice in the cause or matter pending before the Court, has actually resulted in injustice, an aspect discussed a little later. Thirdly, however wide and plenary the language of the article, the directions given by the Court should not be inconsistent with, repugnant to or in violation of the specific provisions of any statute. If the provisions of the 1952 Act read with Article 139-A and Sections 406-407 of the Cr.P.C. do not permit the transfer of the case (from) a Special Judge to the High Court, that effect cannot be achieve indirectly.”

(Emphasis supplied)

In Union Carbide Corpn. v. Union of India, (1991) 4 SCC 584 a Constitution Bench of this Court dealt with the ambit and scope of the powers of this Court under Article 142 of the Constitution. The Bench considered the observations of the majority in Prem Chand Garg v. Excise Commr., U.P., (1963) 1 Suppl. SCC 885 as well as the observations made in A. R. Antulay v. R. S. Nayak, (1988) 2 SCC 602 and observed (at pp. 278-79 of AIR):

“It is necessary to set at rest certain misconceptions in the arguments touching the scope of the powers of this Court under Article 142(1) of the Constitution. These issues are matters of serious public importance. The proposition that a provision in any ordinary LAW irrespective of the importance of the public policy on which it is founded, operates to limit the powers of the Apex Court under Article 142(1) is unsound and erroneous. In both Garg as well as Antulay cases the point was one of violation of constitutional provisions and constitutional rights. The observations as to the effect of inconsistency with statutory provisions were really unnecessary in those cases as the decisions in the ultimate analysis turned on the breach of constitutional rights. We agree with Shri Nariman that the power of the Court under Article 142 insofar as quashing of criminal proceedings are concerned is not exhausted by Section 320 or 321 or 482, Cr.P.C. or all of them put together. The power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary LAWs cannot, ipso facto, act as prohibitions of limitations on the constitutional powers under Article 142.

Such prohibitions or limitations in the statutes might embody and reflect the scheme of a particular LAW, taking into account the nature and status of the authority or the Court on which conferment of powers – limited in some appropriate way – is contemplated. The limitations may not necessarily reflect or be based on any fundamental considerations of public policy. Shri Sorabjee, learned Attorney General, referring to Garg case, said that limitation on the powers under Article 142 arising from ‘inconsistency’ with express statutory provisions of substantive LAW’ must really mean and be understood as some express prohibition contained in any substantive statutory LAW. He suggested that if the expression ‘prohibition’ is read in place of ‘provision’ that would perhaps convey the appropriate idea. But we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of ‘complete justice’ of a cause of matter, the Apex Court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the powers of the Court under Article 142, but only to what is or is not ‘complete justice’ of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise.”

(Emphasis supplied)

Thus, a careful reading of the judgments in Union Carbide Corporation v. Union of India, (supra) the Delhi Judicial Services Association case (supra) and Mohd. Anis case (supra) relied upon in V. C. Mishra’s case (supra) show that the Court did not actually doubt the correctness of the observations in Prem Chand Garg’s case (supra). As a matter of fact, it was observed that in the established facts of those cases, the observations in Prem Chand Garg’s case (supra) had “no relevance”. This Court did not say in any of those cases that substantive statutory provisions dealing expressly with the subject can be ignored by this Court while exercising powers under Article 142.

As a matter of fact, the observations on which emphasis has been placed by us from the Union Carbide’s case (supra); A. R. Antulay’s case (supra) and Delhi Judicial Services Association case (supra) go to show that they do not strictly speaking come into any conflict with the observations of the majority made in Prem Chand Garg’s case (supra). It is one thing to say that “prohibitions or limitations in a statute” cannot come in the way of exercise of jurisdiction under Article 142 to do complete justice between the parties in the pending ‘cause or matter’ arising out of that statute, but quite a different thing to say that while exercising jurisdiction under Article 142, this Court can altogether ignore the substantive provisions of a statute, dealing with the subject and pass orders concerning an issue which can be settled only through a mechanism prescirbed in another statute. This Court did not say so in Union Carbide’s case (supra) either expressly or by implication and on the contrary it has been held that the apex Court will take note of the express provisions of any substantive statutory LAW and regulate the exercise of its power and discretion accordingly. We are, therefore, unable to persuade ourselves to agree with the observations of the Bench in V. C. Misra’s case (supra) that the LAW laid down by the majority in Prem Chand Garg’s case (supra) is “no longer a good LAW”.


Ref: AIR 1998 SC 1895 : (1998) 2 SCR 795 : (1998) 4 SCC 409 : JT 1998 (3) SC 184 : (1998) 2 SCALE 745(Constitution Bench

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