Courts and its endeavor to do Complete Justice

By: Dr. Justice B.S. Chauhan

Judge, Supreme Court of India

Fiat justitia, ruat caelum. — Let justice be done, though the heavens may fall.

`There is an orderliness in the universe, there is an unalterable law governing everything

and every being that exists or lives. It is no blind law; for no blind law can govern the conduct of
living beings.` Today, when we live in an age where the legal systems are highly developed that
governance of rights and liabilities depend upon law and its principles rather than equity, we still
find the basis of such laws from the concept of Justice. Justice has been the central theme of all
the civilisations in the world. It was the central theme of the American Declaration of
Independence when the colonies resolved to throw out a long standing government when it failed
to protect the dues of a man.

What is Justice, asked Plato.1 Justice is a proper, harmonious relationship between the
warring parts of the person or city. According to the Hobbes and Rousseau’s Model of
Sovereignty, Justice is a process of giving and protecting the rights and liberties of a person.
“The aim of justice is, as the Romans used to say, to give each his due, and in order for each to
be given what is his….`give`, in this sense, means to protect the right of possession. Each man
gets `what belongs to him` in the course of voluntary exchanges that constitute the economic
process, and, by virtue of the operation of the market, each receives for his contribution,
precisely the amount that will impel him to increase the supply of the most urgently demanded
commodities…”2

1
Plato, The Republic, Book-I, 331 BC.

2
Faustino Ballve, Essentials of Economics: A Brief Survey of Principles and Policies, 1963.

1
 Justice is the act by which the Society/Court/Tribunal gives to a man what he is entitled
to, as opposed to protecting against injury or wrong. Justice is the rendering of what is right and
equitable towards one who has suffered a wrong. Therefore, while tempering the justice with
mercy, the Court has to be very conscious that it has to do justice in exact conformity to some
obligatory law for the reason that human actions are found to be just or unjust as they are in
conformity with or in opposition to the law.3

Justice is an illusion as the meaning and definition of 'justice' varies from person to
person and party to party. Party feels having got justice only and only if it succeeds before the
court, though it may not even have a justifiable claim. There are times when a arty may continue
with adversarial litigation just to satisfy his ego that justice is when he wins the case, without
realizing that at times, even if he eventually wins, he may not get to enjoy the fruits of the
litigation for they would have dried and died long back.

It is in these situations that the court has to play a role of a mediator rather than a
conventional adjudicator and ensure that complete justice is done. The Founding Fathers of the
Constitution, cognizant of the realities of life, wisely engrafted rights, duties and practical
procedures in the nation’s Constitution for a democratic way of life. While Chapters dealing with
the rights and liabilities have been included, the drafting committee also engrained chapters on
their enforceability by including institutions of Union and State judiciary within the Constitution
itself. Articles 32, 136, 142, 226, etc of the Constitution strengthen the desires of imparting
complete justice. These provisions are part of discretionary jurisdiction of the courts and have
often been invoked in matters requiring the court to intervene and ensure that rights and
entitlements of persons are duly protected.

Of these, Articles 136 and 142 are more important and often go together. Article 136
provides a discretion to the Supreme Court to grant a special leave to appeal against any
judgment, decree, determination, sentence or order of a court. Such right to appeal is not an
automatic right and only if the Court is of the opinion that the matter is such as requires the
interference by the apex court is the leave granted. The scope of Article 136 has been well

3
Delhi Administration v. Gurudeep Singh Uban AIR 2000 SC 3737 & Girimallappa v. The Special Land
Acquisition Officer M and MIP & Anr. AIR 2012 SC 3101; and Union of India & Ors. v. Ex-GNR Ajeet Singh
(2013) 4 SCC 186.
2
explained in the case of N. Suriyakala v. A. Mohandoss & Ors.,4 wherein the court held that
“Article 136 was never meant to be an ordinary forum of appeal at all like Section 96 or even
Section 100 CPC. Under the constitutional scheme, ordinarily the last court in the country in
ordinary cases was meant to be the High Court. The Supreme Court as the Apex Court in the
country was meant to deal with important issues like constitutional questions, questions of law of
general importance or where grave injustice had been done. If the Supreme Court entertains all
and sundry kinds of cases it will soon be flooded with a huge amount of backlog and will not be
able to deal with important questions relating to the Constitution or the law or where grave
injustice has been done, for which it was really meant under the constitutional scheme. After all,
the Supreme Court has limited time at its disposal and it cannot be expected to hear every kind of
dispute.” The court in Tirupati Balaji Developers (P) Ltd. & Ors. v. State of Bihar & Ors.,5
held that Article 136 which is worded in the widest-possible terms. A plenary jurisdiction
exercisable on assuming appellate jurisdiction subject to grant of special leave against any kind
of judgment or order made by any court or tribunal and in any cause or matter has been
embodied and vested in the Supreme Court. It is an extraordinary jurisdiction vested by the
Constitution in the Court with implicit trust and faith and extraordinary care and caution has to
be observed in the exercise of this jurisdiction. Article 136 does not confer a right of appeal on a
party but vests a vast discretion in the Supreme Court meant to be exercised by the
considerations of justice, call of duty and eradicating injustice. In State of Maharashtra v.
Champalal Punjaji Shah,6 the court held that the Supreme Court should not hesitate to interfere
in cases where the decision of the lower court will lead to miscarriage of justice. In Gopal & Ors.
v. State of T.N.,7 the court held that unless there is any infirmity or any illegality in the order of
the lower court or that it would lead to failure of justice, the court should not interfere by
exercising its discretionary jurisdiction under Article 136.

The essential question herein is what happens when the Supreme Court does exercise its
jurisdiction under Article 136 and grants leave to appeal. Does the jurisdiction from that point
becomes one of statutory appeal thereby vesting the right and obligation to deal the matter in as

4
(2007) 9 SCC 196; and Manish Goel v. Rohini Goel, AIR 2010 SC 1099
5
AIR 2004 SC 2351
6
AIR 1981 SC 1675
7
AIR 1986 SC 702
3
such or the case would continue to be one under the discretionary jurisdiction of the court? The
answer is quite obvious and the latter is to be upheld. In a series of cases, the Supreme Court has
held that even where leave to appeal has been granted under Article 136, the matter does not
travel beyond the discretionary jurisdiction of the court, though it may thereby invoke the
appellate jurisdiction of the court, and in such a case, the court can even refuse to interfere even
if it has granted leave. In Kunhayammed & Ors. v. State of Kerala & Anr., 8 the court held that
`when leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate
for entry in the appellate arena is opened. The petitioner is in and the respondent may also be
called upon to face him, though in an appropriate case, in spite of having granted leave to
appeal, the Court may dismiss the appeal without noticing the respondent.` In a number of
decisions including those of the constitution bench, the apex court has held that leave once
granted can always be revoked on the application of the other party if the same is shown to be
not a fit case.9

In light of the above, it can be said that the functioning of the apex court is largely
governed by its endeavor to ensure that justice is done. It does not function as a conventional
court intending to decide matters between parties following the rigors of procedure, though is not
marked by complete absence of it. Rather, the Supreme Court’s functioning may be termed as
more of a supervisory jurisdiction ensuring that any decision of a court or tribunal has not lead to
injustice to any of the parties. It is for this very purpose that the apex court was entrusted with
great plenary power in the form of Article 142 which says 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.

It is to be noted that this article uses the word `complete justice` rather than the term
`justice`. This is because complete justice travels much beyond the concept of giving justice to a
party. Complete justice strives at imparting justice not just for one side alone, but for all. Even if
a party has wronged another, the court cannot become an instrument to perpetuate wrong upon
him. The expression `complete justice` engrafted in Article 142 is of wide amplitude “couched

8
AIR 2000 SC 2587
9
See Hari Narain v. Badri Das AIR 1963 SC 1558; Indo-China Steam Navigation Co. Ltd. v. Jasjit Singh, Addl.
Collector of Customs & Ors. AIR 1964 SC 1140
4
with elasticity to meet myriad situation”. Complete justice is justice according to law and the
Supreme Court would be well within its power to even mould the relief so sought by the parties
to ensure that no illegality is perpetuated.10 The main purpose of Article 142 and the endeavor to
do complete justice has been explained by this court in Manohar Lal Sharma v. Principal Secy
11
& Ors. wherein the apex court held that `the Supreme Court has been conferred with very
wide powers for proper and effective administration of justice. The Court has inherent power and
jurisdiction for dealing with any exceptional situation in larger public interest which builds
confidence in the rule of law and strengthens democracy. The Supreme Court as the sentinel on
the qui vive, has been invested with the powers which are elastic and flexible and in certain areas
the rigidity in exercise of such powers is considered inappropriate. ` In Shahid Balwa v. Union
of India & Ors.,12 the court said that Article 136 read with Article 142 of the Constitution of
India enables this Court to pass such orders, which are necessary for doing complete justice in
any cause or matter pending before it and, any order so made, shall be enforceable throughout
the territory of India. The power to do complete justice under Article 142 is in the nature of a
corrective measure whereby equity is given preference over law to ensure that no injustice is
caused.13

Equipped with such great discretionary powers, the Supreme Court has often taken up the
task of ensuring that honest parties are not the ultimate suffers and that the guilty/or the wrong is
ultimately punished. Power under Article 142 is very wide and can be used to pass any order
which the court thinks is necessary for doing complete justice between the parties. There can be
no straight jacket formula for its exercise nor there can be any fetters or limited scope of
application for the powers under Article 142 is plenary in nature. It seeks to ensure that no
injustice is caused by the rigors of law or due to the perversity of findings recorded by the courts
below or such cases. It acts as an equity jurisdiction without losing the characteristics of being an
action in accordance with law. Article 142 is used as a tool to balance the conflicting interests of
the parties and to ensure that ultimately, the righteous succeeds. It is an inherent power and
jurisdiction for dealing with any extraordinary situation in the larger interests of administration

10
Secretary, State of Karnataka & Ors. v. Umadevi (3) & Ors. AIR 2006 SC 1806
11
(2014) 2 SCC 532
12
(2014) 2 SCC 687
13
Supreme Court Bar Association v. Union of India & Anr., AIR 1998 SC 1895
5
of justice and for preventing any manifest injustice being done. However, the power is to be
exercised only in exceptional circumstances for furthering the ends of justice and not in a casual
and a mechanical manner. The purpose of Article 142 is to do effective, real and substantial
justice, coextensive and commensurate with the needs of justice in a given case in order to meet
any exigency that may arise.14 However, it is not to be exercised in a case where there is no basis
in law which can form an edifice for building up a superstructure. Keeping these principles in
mind, the apex court has not hesitated to exercise its power under Article 142, though fully aware
of the restraints in judicial decision making process, in order to do complete justice.

The court in Commissioner of Income Tax, Shimla v. Greenworld Corporation,

Parwanoo,15 ordered fresh income tax assessment. It held that is was necessary for doing
complete justice that an order passed on dictates of superior without following the due process be
quashed as being a nullity. In Damodar S. Prabhu v. Sayed Babalal H,16 the court framed the
following guidelines relating to compounding of Sec. 138 Negotiable Instruments Act 1881
proceedings:

“(a) That directions can be given that the writ of summons be suitably modified
making it clear to the accused that he could make an application for
compounding of the offences at the first or second hearing of the case and that if
such an application is made, compounding may be allowed by the court without
imposing any costs on the accused.
(b) If the accused does not make an application for compounding as aforesaid,
then if an application for compounding is made before the Magistrate at a
subsequent stage, compounding can be allowed subject to the condition that the
accused will be required to pay 10% of the cheque amount to be deposited as a
condition for compounding with the Legal Services Authority, or such authority as
the court deems fit.
(c) Similarly, if the application for compounding is made before the Sessions
Court or a High Court in revision or appeal, such compounding may be allowed
on the condition that the accused pays 15% of the cheque amount by way of costs.
(d) Finally, if the application for compounding is made before the Supreme Court,
the figure would increase to 20% of the cheque amount.”

14
Zahira Habibullah Sheikh & Anr. v. State of Gujarat & Ors. AIR 2004 SC 3467
15
(2009) 7 SCC 69
16
AIR 2010 SC 1907
6
 In relation to framing the guidelines, the court said that it was aware that framing such
guidelines may amount to judicial law making, thereby breaching the perimeters of its
jurisdiction, however, in order to do complete justice the court would be justified in framing such
guidelines in cases where there is compete legislative vacuum. The same rationale was used in
issuing directions/guidelines in the Vineet Narain17 and Vishkha18 cases as well as the
Amarnath Shrine case.

In Satbir v. Surat Singh & Ors.,19 the court held that ordinarily this Court does not
interfere with an order of acquittal recorded by the High Court; but if the High Court arrives at
its findings overlooking important facts and relying upon few circumstances which do not in any
way impair the probative value of the evidence adduced during trial, this Court would be failing
in its duty to do complete justice if it does not interfere with such order of acquittal. The Court
re-appreciated the evidence and critically examined the judgment of the High Court and its
reasoning before finally allowing the appeal and convicting the accused persons. The court in
exercise of its power under Article 142 sat as if exercising jurisdiction as a Court of Appeal,
which it does not do under Article 136 even where leave has been granted.

In Monica Kumar (Dr.) & Anr. v. State of U.P. & Ors.,20 this court held that:

“…..We are conscious of the well-settled law laid down by this Court in the above
referred decisions and many more that in case of persons against whom prima
facie case is made out and charge-sheet is filed in the competent court, it is that
court which will then deal with the case on merits in accordance with law and the
High Court should not, except in extraordinary circumstances, exercise its
jurisdiction under Section 482 CrPC so as to quash the prosecution proceedings
after they have been lodged.

45. Under Article 142 of the Constitution this Court in 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. The expression “cause” or

17
AIR 1998 SC 889
18
AIR 1997 SC 3011
19
AIR 1997 SC 1160
20
AIR 2008 SC 2781
7
 “matter” would include any proceeding pending in court and it would cover
almost every kind of proceeding in court including civil or criminal. Though there
is no provision like Section 482 of the Criminal Procedure Code conferring
express power on the Supreme Court to quash or set aside any criminal
proceedings pending before a criminal court to prevent abuse of process of the
court, but the inherent power of this Court under Article 142 coupled with the
plenary and residuary powers under Articles 32 and 136 embraces power to
quash criminal proceedings pending before any court to do complete justice in the
matter before this Court. If the Court is satisfied that the proceedings in a
criminal case are being utilised for oblique purposes or if the same are continued
on manufactured and false evidence or if no case is made out on the admitted
facts, it would be in the ends of justice to set aside or quash the criminal
proceedings. Once this Court is satisfied that the criminal proceedings amount to
abuse of process of court, it would quash such proceedings to ensure justice. This
Court’s power under Article 142(1) to do “complete justice” is entirely of
different level and of a different quality. What would be the need of “complete
justice” in a cause or matter would depend upon the facts and circumstances of
each case and while exercising that power the Court would take into
consideration the express provisions of a substantive statute. Any prohibition or
restriction contained in ordinary laws cannot act as a limitation on the
constitutional power of this Court. Once this Court has seisin of a cause or matter
before it, it has power to issue any order or direction to do “complete justice” in
the matter.

The court noticing that the series of complaints and criminal prosecutions were filed for
the purpose of seeking vengeance, in the interest of doing complete justice, all such cases were
quashed even in those cases where a charge-sheet had been filed.

In E.K. Chandrasenan v. State of Kerala,21 the court held that Article 142 empowers
the Supreme Court to pass any order which it deems necessary in order to do complete justice.

21
AIR 1995 SC 1066
8
The court said that power under article 142 can be resorted to for initiating suo moto proceedings
of enhancement of sentence in criminal cases even in those cases where the accused had
approached the Supreme Court challenging his conviction.

In Sandeep Subhash Parate v. State of Maharashtra & Ors.,22 the Supreme Court was
dealing with a matter wherein the appellant had completed his Engineering degree after
obtaining admission on the basis of a false caste certificate. Though the court was of the opinion
that such practices should not be allowed, however, it invoked its power under Article 142 to do
complete justice given the fact that the student had already completed his education and his time
and efforts would go waste if he would now be denied a degree. Therefore, the court in order to
do complete justice directed the student to pay a cost and in return, the college was to issue him a
degree, despite cancelling the certificate issued to him.

The Constitution Bench of the Supreme Court in Secretary, State of Karnataka & Ors.
v. Umadevi (3)& Ors.,23 allowed regularization of irregularly appointed persons in exercise of
its power under Article 142 simply because they had worked on the post/department for more
than 10 years without any challenge. However, the court clarified it to be a one time measure and
not a rule. A similar decision was rendered by the court in the case of H.C. Puttaswamy & Ors.
v. Hon’ble Chief Justice of Karnataka & Ors.24

Thus, as can be seen from the above instances, the courts have used Article 142 as a tool
for doing compete justice. The apex court has always risen to the occasion to ensure that
supremacy of law prevails, yet its strict adherence does harm to no one. The power under Article
142 can be likened to the `equity jurisdiction` of the court exercising power in order to ensure
that no injustice is caused to a person. There have been cases where the court has played a
balancing act and sought to do justice by protecting even those who had faulted. The power
under Article 142 has been well explained by this court in its Constitution Bench judgment in
Supreme Court Bar Association (Supra) wherein the court held that “these powers are of very
wide amplitude and are in the nature of supplementary powers. This power, exists as a separate
and independent basis of jurisdiction, apart from the statutes. It stands upon the foundation, and

22
AIR 2006 SC 3102
23
AIR 2006 SC 1806
24
AIR 1991 SC 295
9
the basis for its exercise may be put on a different and perhaps even wider footing, to prevent
injustice in the process of litigation and to do complete justice between the
parties. This plenary jurisdiction is, thus, the residual source of power which this Court may
draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the
observance of the due process of law, to do complete justice between the parties, while
administering justice according to law.” However, the court clarified that it needs to be
remembered that the powers conferred on the court by Article 142 being curative in nature
cannot be construed as powers which authorise the court to ignore the substantive rights of a
litigant while dealing with a cause pending before it. This power cannot be used to '"supplant"
substantive law applicable to the case or cause under consideration of the court.

This brings us to an important discussion as to whether powers under Article 142 can be
used in a manner which supersedes even the express or implied provisions and requirements of a
statute. No doubt that powers under Article 142 are of wide amplitude and can be exercised by
this court in the manner it deems fit so as to ensure that no injustice is caused to a party, but the
question is, can the power be exercised in a manner that renders a statutory provision a mere
dead letter or of no worth before such an equity clause? The answer is an obvious NO. The apex
court through a large number of its rulings held that statutes cannot be completely given a go-by
while exercising a discretionary and equity jurisdiction. In M.S. Ahlawat v. State of Haryana
& Anr.,25 the court held that under Article 142, the court cannot altogether ignore the substantive
provisions of a statute and pass orders concerning an issue which can be settled only through a
mechanism prescribed in another statute. While reviewing its earlier order, the court corrected its
order punishing the petitioner under Section 195 of Code of Criminal Procedure, 1973 holding
that the requirements of the provisions cannot be ignored in exercise of powers under Article
142. Similarly, in M.C. Mehta v. Kamal Nath & Ors.26, the court while dealing with the issue
whether a punishment could be imposed by the apex court while hearing a Writ Petition for
causing pollution when such an act is covered by Prevention of Water Pollution Act and
Prevention of Air Pollution Act, held that Article 142 could not be invoked in contravention of
statutory provisions. In the Supreme Court Bar Association case (Supra), while deciding the

25
AIR 2000 SC 168
26
AIR 2000 SC 1997
10
issue whether the court can also suspend or remove an advocate for committing contempt of the
court by exercising power under Article 142 when such a power has been vested with the Bar
Council, the court held that indeed statutory provisions cannot curtail the constitutional powers
of the court; however, at the same time these powers are not to be exercised when the exercise of
such power is going to be in direct conflict with a statutory provision. The court refused to
interfere in light of the fact that statutory proceedings could be initiated.27

In J. Jayalalithaa & Ors. v. State of Karnataka & Ors.,28 this Court held that the court
should not exercise its powers under Article 142 of the Constitution when such an exercise
would be contrary to law. The court relied on its earlier judgment in A.B. Bhaskara Rao v. CBI,
wherein this Court held that the powers under Article 142 of the Constitution cannot be exercised
by this Court in contravention of any statutory provisions, though such powers remain unfettered
and create an independent jurisdiction to pass any order in public interest to do complete justice.
The court refused to pass any orders while directing the authority to consider the case under the
relevant Rules and to pass orders in accordance with law. In Manish Goel v. Rohini Goel
(supra), it was noted by the Court that `Though the power under Article 142 of the Constitution
is a Constitutional power and hence cannot in any way, be controlled by any statutory
provisions, the Supreme Court would not pass any order under Article 142 of the Constitution
which would amount to supplanting substantive law applicable or ignoring express statutory
provisions dealing with the subject. That is, the Supreme Court cannot pass an order or grant
relief which is totally inconsistent or goes against the substantive or statutory enactments
pertaining to the case. This power of the Court is to be used sparingly in cases which cannot be
effectively and appropriately tackled by the existing provisions of law or when the existing
provisions of law cannot bring about complete justice between the parties.` Even in
Government of West Bengal v. Tarun K. Roy & Ors.,29 the court refused to exercise its power
under Article 142 noting that such a course would be in direct conflict with statutory provisions.

27
See also: Manohar Lal Sharma (Supra)
28
(2014) 2 SCC 401
29
(2004) 1 SCC 347
11
 The law on Article 142 was well summed up in Laxmidas Morarji v. Behrose Darab
Madan,30 wherein the court held that:

“Article 142 being in the nature of a residuary power based on equitable

principles, the Courts have thought it advisable to leave the powers under the
article undefined. The power under Article 142 of the Constitution is a
constitutional power and hence, not restricted by statutory enactments. Though
the Supreme Court would not pass any order under Article 142 of the Constitution
which would amount to supplanting substantive law applicable or ignoring
express statutory provisions dealing with the subject, at the same time these
constitutional powers cannot in any way, be controlled by any statutory
provisions. However, it is to be made clear that this power cannot be used to
supplant the law applicable to the case. This means that acting under Article 142,
the Supreme Court cannot pass an order or grant relief which is totally
inconsistent or goes against the substantive or statutory enactments pertaining to
the case. The power is to be used sparingly in cases which cannot be effectively
and appropriately tackled by the existing provisions of law or when the existing
provisions of law cannot bring about complete justice between the parties.”

A similar view was taken in the case of Modern School v. Union of India & Ors.,31
wherein this court held that when any legislation is operating in the field, the courts should not
be loathe to impose any further restrictions. This Court normally does not pass an order even in
exercise of its jurisdiction under Article 142 of the Constitution of India which would be
contrary to the law. Once the legislature has laid down an educational scheme, the jurisdiction of
the court is merely to interpret the same. It cannot and should not issue any other or further
direction. It would not supplant a statutory provision by issuing any direction except in some
exceptional cases. The need of the day, therefore, is strict implementation and enforcement of the
statute. The administration, in the event, it comes to the conclusion that the rules are required to

30
(2009) 10 SCC 425
31
AIR 2004 SC 2236
12
be amended, is free to do so; but only because there are a few cases of mismanagement, the same
by itself should not be considered to be an indicia that all institutions are being run in an
unprofessional or unethical manner thereby asking courts to pass necessary orders.

Thus, to conclude, the Supreme Court has been given wide discretionary power to do
complete justice between the parties under Article 142 of the Constitution. It can pass any order
which it deems fit in the facts and circumstances of the case. However an order which the Court
passes in order to do complete justice between the parties must not only be consistent with the
fundamental rights guaranteed under the Constitution, but should also be consistent with the
substantive provisions of the relevant statute. In other words, this Court cannot altogether ignore
the substantive provisions of a statute. This Court should be slow in exercising this great
discretionary power and it should not pass any order which would amount to supplanting the
substantive law. Further, the court must exercise judicial restraint in relation to invoking Article
142 and it should not exercise the power on the ground of sympathy or on mere asking. This is
because this great plenary power is also a discretionary and extra-ordinary power which is not to
be exercised in a mechanical manner. There must be strong and cogent reasons for exercising
this discretionary jurisdiction for the powers under Article 142 are meant to be exercised in order
to further the needs of justice and to fill in lacuna or vacuum in law and not as part of regular
exercise of jurisdiction of the court.

xxxxxx

13