Introduction

The emphasis on the above quote of American philosopher Ralph Waldo Emmerson is on the expression ‘too well’. Though made in an entirely different context, the above words of Emmerson, when transposed to the context of judges, can be understood as the judges interpreting and applying the law with less rigidity and harshness when unjust results may arise out of judicial interpretation. Equally significant is a famous Latin maxim fiat justitia ruat caelum meaning let justice be done though the heavens fall. When a judge decides ‘not to obey the laws too well’ it must be to ensure that it is for doing complete justice between the parties and while doing so, nothing should stand in the way of the judge. This understanding that the ultimate objective of judicial power is to ensure complete justice between the parties finds its acceptance in article 142 of the Constitution of India, which states that ‘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 unparalleled and is not found in any major constitutions of the world, from where the Indian Constitution was inspired.

This chapter begins by undertaking a brief survey on the scope of article 142 and its current judicial understanding. In the next part, a comparative approach has been adopted to analyse the application and ambit of ‘complete justice’ under the Constitutions of Pakistan, Nepal, and Bangladesh, which contain similar provisions as article 142. The subsequent part of the chapter attempts to answer the issue of whether in guise of ‘complete justice’ under article 142, the judiciary can transgress into the powers of the legislature and the executive. In other words, does article 142 permit judicial legislation? The chapter concludes by answering some of the recent controversies surrounding article 142 and offering suggestions for better use of the powers under article 142.

Article 142: Origins and Constituent Assembly Debates

Article 142(1) had no counterpart in the Government of India Act, 1935, whose provisions had been heavily incorporated into the Indian Constitution. Article 118 of the Draft Constitution, which eventually became article 142 of the present Constitution, was adopted without any debate in the Constituent Assembly.