DMPQ- Do you think article 142 undermines the status of legislature and Executive?

Article 142 provides discretionary power to the Supreme Court as it states that the 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.

Such decree shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament.

From Article 142, the Supreme Court derives overarching powers to perform the functions of Executive and legislative in order to bring about complete justice.

In this pursuit, Article 142 is supplemented by the Articles 32 (Right to constitutional remedies), Article 141 (The law declared by the Supreme Court shall be binding on all courts within the territory of India) and Article 136 (Special Leave petition).

 

Article 142 invocation sometimes leads to Judiciary overriding executive and legislature and it also lead to Judicial activism. If it is used sparingly in limited way then it is not an issue but irrational judgements without accountability creates problem for Executive for example Ban on liquor sale on highways case: In 2016. under Article 142 the apex court banned the sale of alcohol within a stipulated distance of 500 metres form the outer edge of the highway. Such a decision was taken to avoid accidents due to drink and drive.

 

But article 142 has its merit too. As the guardian of the constitution Article 142 provides its power to fill the statutory vacuum. It also sets out a system of check and balance and controls to the other branches of the government.

For example: In Vishakha v State of Rajasthan case, Supreme Court laid down the guidelines to protect a woman from sexual harassment at its workplace Bandhua Mukti Morcha Case the Hon’ble Court gave its landmark judgment on bonded labour system of India In Olga Tellis Case where Right to livelihood was declared part and parcel of the right to life.

Thus, there is a need to strike a balance between three pillars of government without encroaching on each other’s area. The powers under Article 142 being curative in nature cannot be construed as powers which authorise the court to assume the role of executive or legislature.

 

In the Bar association of Supreme court vs. The Union of India Case Supreme Court itself held that the power to do complete justice under Article 142 is in a way, corrective power, which gives preference to equity over law but it cannot be used to violate substantial rights.

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