The Excesses in the Application of Article 142


Dhanishta Mittal

The Supreme Court, by exercising this power to grant relief to the disputing parties on multiple occasions, established a precedent, thereby diluting and undermining the authority of the statute which is silent on the matter concerned.[1] Objection to the exercise of such plenary power is primarily because it leads to the framing of legal provisions by the judiciary (judicial law-making), thereby intruding into the domain of the legislature. In light of instances such as the invocation of Art. 142 for the appointment of a Lokayukta, which essentially is in the executive’s domain, it can be argued that such an extension of judicial powers transgresses the principle of separation of powers because the Court remodels itself as the ‘superior legislative body’.[2]

The Supreme Court, has indeed, expanded the scope of its power under Art. 142 by its frequent invocation to fill the lacunae created by the absence of legislative provision acknowledging the breakdown theory of marriage.[3] However, the Court, in exercising this extraordinary power, is restrained by express prohibitions in existing statutory or other relevant laws, having been based on certain fundamental principles of public policy, thereby regulating the indiscriminate exercise of such discretion by the apex Court of the country.[4] It has been clarified by the Court that ‘laws’ made under Art. 142 are specific to the peculiar facts of the matter. Such a declaration is to be construed as a relief and cannot be alleviated to the status of binding law under Art. 141.[5] That does not seem to be the case particularly since the time the Supreme Court, exercising its powers under Art. 142 issued guidelines in the Vishaka case[6] which went on to become akin to a legal obligation to be followed by the plebeian, naturally being elevated to the status of law, in the instance of a legislative vacuum.

Given that the usage of Art. 142 is in the nature of a corrective measure to correct any injustice, its application in such matters of fundamentally broken down marriages results in triumphing equity over mere technicalities of legal procedures. It is widely accepted that divorce proceedings possess a tendency of turning into nasty grounds of family battles, with accusations of human character and conduct which are often not substantiated by concrete evidence. This, often results in multiple petitions being quashed by the Courts for lack of evidence and with an aim to reconcile differences between the parties because there is no statutory acceptance of ‘no-fault theory of divorce’ in India. However, it is only the Supreme Court, through the usage of Art. 142 that can absolve such broken down marriages lacking any possibility of repair. It is futile to compel the parties in a dead wedlock to cohabit when there is prima facie indication of splinted matrimonial bond.[7] Impelling such parties to conjugate again merely on de jure grounds, when de facto there is a dead relationship would tantamount to prolonging the agonies of the spouses.[8] Such legal coercion, if permitted, in those situations where the marriage is a mere shell without any substance, would result in alleviation of greater misery to the parties in contradistinction to the judiciary’s aspiration of conferring ‘complete justice’ to the contending parties.[9]

However, ‘complete justice’ is being offered at a cost to the citizens since, such a benefit is only reserved for those parties who possess sufficient resources to appeal to the apex Court and bear the cumbersome costs of litigation. For those not as privileged, this ‘complete justice’ is denied simply because the lower courts are bound by contrary legal principles from which aberration is impermissible.[10] This results in selective justice which is inherently violative of the principle of ‘complete justice’. Thus, the frequent use of this provision is in principle a deviation from the rule of justice for all. In order to make amends for such an anomaly, the most viable alternative would be the introduction of a ‘breakdown theory of divorce’ into the Hindu Marriage Act as a permissible ground for divorce.


It is commonly accepted that it is the judiciary who “infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society; thus, by making and molding the law, he takes part in the work of creation and this is much more true in the case of interpretation of the Constitution.”[11]

The trend noted through recent Supreme Court judgments is hinting towards an expansive and over-arching reach of the Court in its attempt to do ‘complete justice’. However, the primary debate that arises in context is, has complete justice really been delivered to the people, especially since only a handful of cases manage to reach the Apex Court and there is no unanimity with respect to the powers of the lower courts and the Apex Court. It can be concluded that the Founding fathers of the Indian Constitution willingly accorded absolute powers to the Supreme Court to adjudicate on matters it believes need substantial intervention.[12] The fundamental criticism however, is the lack of clarity on the restrictions that the Court has imposed upon its ability to exercise this sweeping provision, since there are instances of defiance.


[1] Harshad Pathak, Article 142: Complete Justice?, CNLU Law Journal, Vol. 3, 2013.


[3] Rajat Pradhan, Ironing out the Creases: Re-examining the Contours of Invoking Article 142(1) of the Constitution, NALSAR STUDENT LAW REVIEW, Vol 6., 2011.

[4] Union Carbide Corporation v. Union of India, 1990 AIR 273.

[5] J&K Public Service Commission v. Narinder Mohan, 1994 AIR 1808.

[6] Vishaka and others v State of Rajasthan, AIR 1997 SC 3011.

[7] Mayne’s Treatise on Hindu Law & Usage (16th ed.) Revised by Justice Ranganath Mishra, (New Delhi: Bharat Law House, 2008), p. 292.

[8] Ashok v. Rupa, 1996 (2) HLR 512 (Guj.).

[9] Law Commission of India, 71st Report on The Hindu Marriage Act, 1955- Irretrievable Breakdown of Marriage as a ground for Divorce, Apr. 1948; Law Commission of India, 217th Report on Irretrievable Breakdown of Marriage: Another Ground for Divorce, Law Commission of India.

[10] Harshad Pathak, Article 142: Complete Justice?, CNLU Law Journal, Vol. 3, 2013.

[11] Justice PN Bhagwati, ‘Domestic Application of Human Rights Norms’, Supreme Court.

[12] Law Teacher,

The author is currently a third-year student at Nalsar University of Law, Hyderabad

Image: Slator


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