Recently, the President had sought the opinion of the Supreme Court in its presidential reference containing 14 questions interlinked with the constitution of India. Inter-alia, reference question no.10 flags confusion pertaining to the limits of the power of the Supreme Court while exercising its powers under Article 142 of the Constitution, i.e., whether the constitutional powers of the President/ Governor can be substituted by the Supreme Court by exercising its powers under Article 142? This legal question draws its significance in the backdrop of recent the exercise of powers under Article 142 by the supreme court to substitute the constitutional requirement assent of the governor to a bill before it becomes law by importing the doctrine of deeming fiction in the case of The State of Tamil Nadu v. The Governor of Tamil Nadu.
Article 142(1) is to be exercised with due Restraint and Circumspection
The power of the apex court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, unequivocally demonstrates the unbridled trust of the framers of the constitution on the supreme court. In Delhi Development Authority v. Skipper Construction Co. (P) Ltd. And Another it was observed “The fact that the power is conferred only on this Court is an assurance that it will be used with due restraint and circumspection.” The intention of conferring such much is not to override other express statutory mandates, perhaps it is designed to serve the ends of justice in exceptional circumstances. For instance, the powers under Article 142(1) are often invoked to dissolve marriage when the court takes cognizance of irretrievable breakdown of marriage while exercising its jurisdictions in matrimonial issues. Therefore, it is the bounden duty of the court to reflect on the constitutional and statutory contours and remind itself that such exercise is of supplementary nature before invoking its constitutional powers under Article 142.
Constitutional Scheme Proscribes Limitless Power
Our constitutional scheme subscribes to the doctrines of “checks and balances” and “separation of powers”. The supreme charter deprecates the notion of repositing unlimited power in an institution and on the contrary espouse a design composed of segregation of limited and precise powers to respective institution and comprises moulds that prevent transgression of power. Powers under Article 142(1) is no exception to the fundamental design of the supreme charter, moreover, Article 142 is a creature of the constitution and therefore, not supreme to other provisions of the same document. The constitution bench of Supreme Court in Prem Chand Garg and Another v. The Excise Commissioner, U.P. and Others, held that “ we ought to bear in mind that though the powers conferred on this Court by Art. 142(1) are very wide, and the same can be exercised for doing complete justice in any case, as we have already observed, this Court cannot even under Art. 142(1) make an order plainly inconsistent with the express statutory provisions of substantive law, much less, inconsistent with any Constitutional provisions.” It is rather uncontested that the constitutional power under Article 142(1) is a significant source of power while apex court exercises its jurisdiction, however, any attempt to device such power to invent a construct which is contrary to the scheme of the constitution would fail to pass the muster of law.
Constitution Prohibits Fictional substitute for President/Governor
The powers and functions of each institution is distinctly and comprehensively canvassed in the constitution, thus, there is little or no scope for acting beyond the permissible limits. The philosophy of separation of powers outrightly discards any doctrine that attempts to substitute, supplant or interchange the respective fields of the three pillars, i.e., legislature, executive and judiciary, unless otherwise expressly permitted in the documented law. Hence, when Articles 111 or 200 of the constitution prescribes the assent of the President or Governor respectively as an inevitable condition precedent for giving effect to a law, it in constitutionally undesirable to substitute the assent of the President or Governor by importing the doctrine of deeming fiction of assent. Until, the doctrine of deeming fiction of assent acquires constitutional merit, parallel to Article 1 Section 7 of the Constitution of United States of America which incorporates the fiction of assent by the President in certain circumstances, there is no other constitutionally permitted substitute for assent of the President or Governor. The Chief Justice of India B.R. Gavia recently quoted at a felicitation programme in Mumbai, “constitution is supreme, not the judiciary or executive”.
The doctrine of Stare Decisis reinforce the proposition that the powers of the Supreme Court are not unlimited and that the exercise of such powers are subject to certain restrains. In Tamil Nadu Governs’ case the apex court overlooked the previous reasoned findings on powers of Court under Article 142 in Shilpa Sailesh v. Varun Sreenivasan, Union Carbide Corporation and Others v. Union of India and Others, Prem Chand Garg and Another v. The Excise Commissioner, U.P etc. Therefore, it is reasonably anticipated that the Supreme Court would clarify the law on this aspect if it decides to render its opinion on the respective reference question.
About the author
Adv. Gajendra Singh Rajpurohit
