• 02-May-2023

With Supreme Court’s ruling on divorce, a look at its powers under Article 142 – and their criticism

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The power has been criticised on grounds of the separation of powers doctrine, which says that the judiciary should not venture into areas of lawmaking and that it would invite the possibility of judicial overreach.


  • A five-judge or constitution bench of the Supreme Court Monday (May 1) held that a court can directly grant divorce under Article 142 of the Constitution,in cases where the marriage has irretrievably broken down, without referring the parties to a family court first, where they must wait for 6-18 months for a decree of divorce by mutual consent.


What is Article 142 of the Constitution?

  • Article 142 provides a unique power to the Supreme Court, to do “complete justice” between the parties, where, at times, the law or statute may not provide a remedy. In those situations, the Court can extend itself to put an end to a dispute in a manner that would fit the facts of the case.


How have courts exercised this power?

  • While the powers under Article 142 are sweeping in nature, SC has defined its scope and extent through its judgments over time.
  • In the Prem Chand Garg case, the majority opinion demarcated the contours for the exercise of the Court’s powers under Article 142(1) by saying that an order to do complete justice between the parties “must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws,” referring to laws made by Parliament. “Therefore, we do not think it would be possible to hold that Art. 142(1) confers upon this Court powers which can contravene the provisions of Article 32 (right to constitutional remedies),” it said.
  • The seven-judge bench in ‘Antulay’ upheld the 1962 ruling in ‘Prem Chand Garg.’
  • Notably, in the Bhopalgas tragedy case (‘Union Carbide Corporation vs Union of India’), the SC in 1991 ordered UCC to pay $470 million in compensation for the victims of the tragedy. In doing so, the Bench highlighted the wide scope of Article 142 (1), adding that it found it “necessary to set at rest certain misconceptions in the arguments touching the scope of the powers of this Court under Article 142(1) of the Constitution”.
  • Deeming the power under Article 142 to be “at an entirely different level and of a different quality”, the court clarified that “prohibitions on limitations on provisions contained in ordinary laws cannot, ipso-facto, act as prohibitions or limitations on the constitutional powers under Article 142”. Adding that it would be “wholly incorrect” to say that powers under Article 142 are subject to express statutory prohibitions, the court reasoned that doing so would convey the idea that statutory provisions override a constitutional provision.


What is the criticism of Article 142 and how have courts countered it?

  • The sweeping nature of these powers has invited the criticism that they are arbitrary and ambiguous. It is further argued that the Court then has wide discretion, and this allows the possibility of its arbitrary exercise or misuse due to the absence of a standard definition for the term “complete justice”. Defining “complete justice” is a subjective exercise that differs in its interpretation from case to case. Thus, the court has to place checks on itself.
  • In 1998, the apex court in ‘Supreme Court Bar Association vs Union of India’ held that the powers under Article 142 are supplementary in nature and could not be used to supplant or override a substantive law and “build a new edifice where none existed earlier”.
  • The Court said that the powers conferred by Article 142 are curative and 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”. Adding that Article 142 cannot be used to build a new edifice, ignoring statutory provisions dealing with a subject, the court also said that the provision cannot be used “to achieve something indirectly which cannot be achieved directly”.
  • More recently, in its 2006 ruling in ‘A. Jideranath vs Jubilee Hills Co-op House Building Society’, the Supreme Court discussed the scope of the power here, holding that in its exercise no injustice should be caused to a person not party to the case.
  • Another criticism of the powers under Article 142 is that unlike the legislature and the executive, the judiciary cannot be held accountable for its actions. The power has been criticised on grounds of the separation of powers doctrine, which says that the judiciary should not venture into areas of lawmaking and that it would invite the possibility of judicial overreach.
  • However, the Drafting Committee of the Indian Constitution was mindful of the wide-reaching nature of the powers and reserved it only for exceptional situations, which the existing law would have failed to anticipate.
  • Additionally, the apex court has imposed checks on its own power under Article 142. In 2006, the SC ruling by a five-judge Bench in ‘State of Karnataka vs Umadevi’ also clarified that “complete justice” under Article 142 means justice according to law and not sympathy, while holding that it will “not grant a relief which would amount to perpetuating an illegality encroaching into the legislative domain.”