Article 142 of the Constitution of India, 1950 has been used by the Court to assume vast jurisdiction and pass any orders/judgments to do ‘complete justice’. Recently, the Chief Justice of India, J. Bobde invoked this provision to justify the reference of the review petitions challenging the Sabarimala judgment to a larger bench. What is the history behind this Article’s immense source of judicial power?
It is common knowledge that the Government of India Act, 1935 inspired the Indian constitution making project. The constitution framers heavily relied on the 1935 Act’s administrative provisions and in some cases borrowed exact wordings with minor changes. The predecessor of Article 142 is Section 210 of the 1935 Act.
Section 210 was titled ‘Enforcement of decrees and orders of Federal Court and orders as to discovery...’. It empowered the Federal Court to secure attendance and production of documents in cases which invoked its civil and criminal jurisdiction. It also granted the Federal Court power to investigate and punish matters relating to its contempt. The section cast a general obligation on all authorities to ‘aid the Federal Court’. Arguably, the section provided the Court with procedural and contempt powers.
Thirteen years later, the Drafting Committee produced the Draft Constitution, 1948. This document formed the basis for all debates in the Constituent Assembly, and was eventually adopted with amendments as the Constitution of India, 1950.
Draft Article 118 (Article 142, Constitution of India) carried the same title as Section 210 of the Government of India Act, except that it replaced ‘Federal Court’ with ‘Supreme Court’. It also retained the procedural and contempt powers present in Section 210. However, it introduced a clause that gave the Supreme Court power to pass any decree or order in the interest of achieving ‘complete justice’.
The Draft Article was adopted unopposed and without any debate on 27 May 1949. However, it was discussed in the context of other articles. During debates on the Special Leave to Appeal under Draft Article 112 (Article 136, Constitution of India), Alladi Krishnaswamy Ayyar noted that the Court could develop its own jurisprudence to do ‘complete justice’ in any case/matter. On the same day, Das Bhargava opined that the Supreme Court enjoyed ‘divine rights’. He invoked Draft Article 118 to argue that the ‘Supreme Court will be able to deliver any judgment which does complete justice between States and between the persons before it.’
While it was clear that some members believed that the Supreme Court’s powers under Draft Article 118 were unfettered, the broader history of this Draft Article 118 indicates it was intended to be limited to the exercise of procedural powers, such as the power to call for documents, witness etc. and pursue contempt matters.