In the wake of the Supreme Court’s ruling that set a timeline for the governors to decide on Bills cleared by state Assemblies within three months at the most, including those referred to the President, Vice-President Jagdeep Dhankhar took aim at Article 142 of the Constitution. The Article – granting the apex court the power to pass any order necessary to ensure “complete justice” in any case pending before it – “has become a nuclear missile against democratic forces, available to the judiciary 24×7”, Dhankhar said. Declaring as illegal and erroneous the action of Tamil Nadu Governor R N Ravi in reserving 10 Bills for consideration of the President in November 2024, the Supreme Court in its April 8 order said the pieces of legislation were considered as having received assent given “the unduly long period of time for which these Bills were kept pending by the Governor before the ultimate declaration of withholding of assent”. The origins of Article 142 Invoked on numerous occasions, including several landmark judgments, Article 142 traces its roots back to Section 210 of the Government of India Act, 1935, which was passed by the British Parliament. A 1947 report submitted by an ad hoc committee of the Constituent Assembly, which framed the Constitution, observed: “If the Supreme Court takes the place of the Privy Council, it may well be permitted to pronounce final judgments and final decrees in cases where this is possible, or to remit the matter for further inquiry to the Courts from which the appeal has been preferred, where such further inquiry is considered necessary. Provision must also be made on the lines of Section 210 of the Act of 1935 giving certain inherent powers to the Supreme Court.” The “inherent powers” cited by the ad hoc committee were effectively a precursor to Article 142, which is meant to grant the Supreme Court powers in situations that cannot be addressed using existing provisions of the law. While Section 210 of the 1935 Act made no mention of “complete justice”, the phrase was added by the Constituent Assembly when it drafted Article 142. The Article did not see any debate in the Constituent Assembly, and it was adopted without any amendments in 1949. Frequency of use of Article 142 One of the earliest references to Article 142 was in 1958, when the Supreme Court heard a case on the publication of remarks made in the Bihar Assembly that had been expunged. The Supreme Court used the Article to interpret the Constitution and uphold the authority of Assemblies to “regulate the publication of debates over the right to free speech”. For decades after that, Article 142 was invoked sparingly by the Supreme Court. Then, starting the 1990s, there was a considerable spike. Since 2002, there have been at least 20 instances of Article 142 being invoked every year. A study published by researchers at IIM-Ahmedabad in 2024 found there were 1,579 Supreme Court cases that referred to Article 142 or “complete justice” between 1950 and 2023. But, only in 50 per cent of these cases, the report stated, the Court “explicitly” used its power under the Article. In 11 per cent of the cases, the Court specifically rejected the use of Article 142. In the remaining 39 per cent of the cases, the use of Article 142 was “ambiguous or not used”. In 2018 and 2019 each, the report adds, Article 142 was invoked 86 times, the highest on record until 2023. Cases where Article 142's invoked Kesavananda Bharati case: In 1973, this landmark judgment saw the Supreme Court expand the basic structure doctrine of the Constitution using Article 142, asserting its right to strike down amendments that sought to alter the basic features, including fundamental rights, of the Constitution. Bhopal gas tragedy: Following the industrial disaster at a pesticide plant in Bhopal in 1984, the Supreme Court in 1991 ordered the Union Carbide Corporation to pay $470 million in compensation to the victims. In doing so, the Bench highlighted the wide scope of Article 142. Arrest of judicial officers: In 1991, after a chief judicial magistrate was assaulted by police in Gujarat, during contempt of court proceedings, the Supreme Court invoked Article 142 to quash the criminal proceedings and through its judgment, set guidelines for the arrest of judicial officers. Visakha guidelines: While hearing a PIL filed by several women’s rights groups on the fundamental rights of working women in 1997, the Supreme Court invoked Article 142 to set definitions for sexual harassment at workplaces and guidelines to tackle such cases. The ruling was later supreceded by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Coal allocation scam: As the UPA government in power at the time faced allegations of a scam in the allocation of coal deposits to public sector enterprises, the Supreme Court invoked Article 142 in 2012 to cancel the allocation of nearly 200 coal blocks. Sale of alcohol: In 2016, the Supreme Court used Article 142 to ban the sale of alcohol within 500 metres of the outer edge of highways to stem cases of driving under the influence. Candidates’ criminal cases: In 2020, the Supreme Court made it mandatory for political parties to publish information on candidates, including pending criminal cases and the nature of the offences, and the reasons as to why other candidates without criminal cases were not selected. Ayodhya land dispute: The Supreme Court invoked Article 142 twice in its landmark ruling on the Ayodhya title suit in 2019. Though the site of the demolished Babri Masjid was awarded for the construction of a temple, the Court invoked the Article to grant land to the Sunni Waqf Board for a mosque as well. It also invoked the Article to include the Nirmohi Akhara, a Hindu sect, in the trust to construct the temple. Rajiv Gandhi assassination: In 2022, the Supreme Court ordered the release of A G Perarivalan, who was convicted for conspiring to assassinate former Prime Minister Rajiv Gandhi in 1991, after invoking Article 142. Perarivalan had been sentenced to death, until the Supreme Court commuted the sentence to life in prison in 2014 after his mercy plea to the President had been pending for over a decade. Chandigarh mayor poll: In early 2024, the Supreme Court set aside the results of the mayoral polls in the Chandigarh Municipal Corporation in which the presiding officer Anil Masih had named the BJP’s Manoj Sonkar as the winner. Masih was caught on camera allegedly marking ballot papers to make invalid eight votes in favour of the AAP-Congress coalition candidate Kuldeep Kumar. The Court invoked Article 142 to declare Kumar as the validly elected candidate.
