March 12, 2018
1 year

Even with the best of motives, Article 142 of the Indian Constitution involves the court to stepping into the legislative sphere. Do you agree with the view that some reconsideration is required in this regard? Comment (200 words)

Refer – The Hindu

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IAS Parliament 1 year


·        Article: 142: “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…”

·        This provision is a potent tool in the hands of the SC to bring about changes in significant policy issues to affect the public at large.

Union Carbide Case

·        In that case, SC went on to say that, to do complete justice, it could even override the laws made by Parliament by holding that, “prohibitions contained in ordinary laws cannot, ipso facto, act as prohibitions on the constitutional powers under Article 142.”

·        By this statement, the SC of India placed itself above the laws made by Parliament or the legislatures of the States.

·        However, this statement was toned down later and clarified that the said article could not be used to supplant the existing law, but only to supplement the law.

·        However, in recent years, one has come across several judgments of the Supreme Court wherein it has been foraying into areas which had long been forbidden to the judiciary by reason of the doctrine of ‘separation of powers’, which is part of the basic structure of the Constitution.

·        It is true that A: 142 have been invoked for the purpose of doing tremendous good to large sections of the population and indeed to the nation as a whole.

·        That principle, however, may merit some reconsideration, because even with the best of motives, it involves the court stepping into the legislative sphere.

Possible solutions to enhance the process

·        Refer to a larger Constitutional Bench - All cases invoking A: 142 should be referred to a Constitution Bench of at least five judges so that this exercise of discretion may be the outcome of five independent judicial minds operating on matters having such far-reaching impact on the lives of people.

·        Meanwhile, the government must bring out a white paper to study the beneficial as well as the negative effects of the judgment in all cases where the court invokes A: 142.

·        Another possibility might be to consider a constitutional device used in South Africa: the suspended declaration of invalidity.

·        The Constitutional Court of South Africa is empowered to declare a legal provision unconstitutional, but also give the legislature some breathing space to remedy the defect before the judgment actually comes into force.

·        Similarly, in cases where the Indian Supreme Court finds a legislative vacuum, it could issue guidelines, but suspend their operation for a period of a few months, giving Parliament an opportunity to consider the guidelines, and take action.

·        If, then, Parliament fails to take action, it could be presumed to have tacitly endorsed the court’s guidelines, and they could then acquire legal force.

·        Such a model would promote dialogue between the different branches of government, and strengthen the court’s legitimacy and competence to act in difficult cases of this kind.

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