Quoting the words of Benjamin Cardozo, "A judge is not a legislator in general but highlights how the judge does legislate new law in close cases to fill gaps between existing rules." Resting on the same principle Article 142 is defined as the enforcement of decrees and orders of Supreme Court in the exercise of its jurisdiction as is necessary for doing complete justice.
The extra ordinary powers under the article was brought about to bridge the gap created by an insufficient law so as to meet the ends of justice, grant of which is met out by passing an 'enforceable decree or order' by the Honorable Supreme Court. The article, for the very first time, came under the light of interpretation in the case of Prem Chand Garg v. Excise Commissioner, U.P. 1 which added a rider to the exercise of wide extraordinary powers by laying down that though the powers are wide, the same is an ancillary power and can be used when not expressly in conflict with the substantive provisions of law.
Justice Subha Rao defined the expression 'declared' as being wider than the words 'found or made'. "To declare is to announce opinion. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by this Court is the law of the land. To deny this power to this Court on the basis of some outmoded theory that the Court only finds law but does not make it, is to make ineffective the powerful instruments of justice placed in the hands of the highest judiciary of this Country."2
Article 142 of the Constitution of India is supplementary in nature and cannot supplant the substantive provisions, though they are not limited by the substantive provisions in the statute. It is a power that gives preference to equity over law. It is a justiceoriented approach as against the strict rigors of the law.3
The article ensures execution of the objective, the statute in question strives to achieve which was correctly explained in the case of The State of Tamilnadu and Ors. vs. K. Balu and Ors. 4 , where after the legislature prohibited liquor stores only along National Highways; accordingly extending the same to state highways as well, the SC held that, "The prohibition should extend not merely to the national and state highways but must be so appropriately tailored so as to ensure that the policy is not defeated by locating liquor shops in close proximity of the highway. A restriction that the shop should not be accessible or visible from the national or state highways or from a service lane along such highways is necessary to ensure that the policy is not surreptitiously violated.'
It was imperative to keep Article 142 outside the purview of article 141 as its implementation changes based upon the facts of each case. Accordingly, as it does not constitute ratio decidendi and thus, loses its basic premise of making it a binding precedent. The directions issued can widely be interpreted as a relief and the other, as the declaration of law. The article is also different and a step ahead of article 136 which is restricted to the limitations under the specific provisions of the law for appeal while under article 142 any enforceable decree or order can be passed as is necessary for doing 'complete justice' in any matter or for meeting myriad situations created by human ingenuity of cause or result of operation of statute law or law declared under Articles 32, 136 and 141 of the Constitution.5
Article 142 read with Article 144 marks a restriction on the legislative power to undo the effect of the decree or order and thus, if a legislative enactment seeks to make unenforceable the decree or order of the Supreme Court in relation to the cause and the parties between whom it was made, uch law would be void for contravening Article 142. 6 In the case of University of Kerala Vs. Council, Principals', Colleges, Kerala and Ors., 7 it was held that, "In so far as judicial power is concerned, no such limitation has been imposed under the Constitution. Rather the conferment of judicial power under Articles 141, 142, 32 and 226 has been plenary and very wide and enable the Supreme Court to declare the law which shall be binding on all the courts within the territories of India and Article 142 enables the Supreme Court to pass such order as is required to do complete justice in the case."
It is well settled that these powers are outside the ambit of the legislative control, but they cease to end where the statutory vacuum ends. The powers being curative in nature cannot be construed as powers which authorise the court to ignore the substantive rights of a litigant and even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly.8 Relying on the same, the Supreme Court in the case of Union of India (UOI) vs. State of Maharashtra and Ors, 9 reiterated that this article cannot be applied to encroach upon the field reserved for the legislature.
Accordingly, this corrective power as provided under the Article should be exercised in such a way, so as to solely thrive on the principles set out by the Constitution. It is the judiciary who "infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society; thus, by making and moulding the law, he takes part in the work of creation and this is much more true in the case of interpretation of the Constitution."10
2. Golak Nath v. State of Punjab MANU/SC/0029/1967
3. State of Punjab Vs. Rafiq Masih (White Washer), MANU/SC/0621/2014
5. Ashok Kumar Gupta vs. State of U.P., MANU/SC/1176/1997
6. Chandra Mohan vs. State of U.P. and Ors. (24.11.1967 - ALLHC) : MANU/ UP/0048/1969
8. Supreme Court Bar Association v. Union of India, MANU/SC/0291/1998
10. Chief Justice Bhagwati's view in 'Domestic Application of Human Rights Norms'
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