Context: The futility of the bail order granted by Supreme Court to Mohammed Zubair has bought the focus on Complete Justice as stipulated in Article 142 of Indian Constitution.
Article 142 – It stated that any decree or order passed by the Supreme Court to do complete justice was enforceable throughout the territory of India.
Powers and Challenges of Supreme Court
- The Supreme Court of India is regarded as the world’s most powerful top court, on account of its wide power of judicial review.
- It has the jurisdiction to issue writs under Article 32 of the Constitution.
- It also has the original jurisdiction under Article 131 of the Constitution.
- There is also wide appellate power under Articles 132, 133, 134 and 136 of the Constitution.
- It has the power to “make such order as is necessary for doing complete justice in any cause or matter pending before it”, as per Article 142 of the Constitution.
- Yet, the top court has shown itself to be helpless when issues of individual liberty have been placed before it on very many occasions.
- The jail jurisprudence of the executive effectively surpasses the Court’s bail jurisdiction.
- The executive is able to register multiple FIRs in different States of India so as to ensure that the dissident is not released from prison even if bail is granted in some of the cases.
Rule by law
- The criminal justice system in tough times degenerates into rule by law that replaces rule of law.
- The law becomes an effective device in the hands of the Government for the purposes of a witch-hunt and this operates against the opponents of a regime.
- Rule by law indicates that decisions are forced upon a citizenry, while Rule of law is to control the unlimited exercise of the power by the supreme lawmaking authority of the land.
- A constitutional court should be able to evolve a mechanism of its own to preserve the democratic foundation of the country by intervening in the incremental process of nation’s “deconstitutionalisation”.
Create Judicial Atmosphere
- Top court must act as a determined umpire who checks the executive’s excesses.
- The Supreme Court’s intervention in the Centre’s COVID-19 vaccine policy and the Pegasus episode illustrates this point.
- The need is to expand the latter approach and to create and perpetuate a democratic judicial atmosphere that supports the cause of freedom.
- The Indian Supreme Court is constitutionally equipped with the power to invoke its jurisdiction for the larger cause of liberty, even by deviating from the conventional technical route.
- The “complete justice” under Article 142 is meant to be used such scenarios
- In Delhi Development Authority vs Skipper Construction Company (1996), the top court said that the power under Article 142 should remain “undefined and uncatalogued, so that it remains elastic enough to be moulded to suit the given situation”.
Treating them as a class
- It is essential for the Supreme Court of India to treat political prisoners and dissenters facing multiple FIRs and undergoing unjustifiably long incarceration as a class.
- It needs jurisprudence at the normative level to tackle the technical arguments that create a false notion of rule of law
- The Court should immediately ensure that vindictive incarceration does not continue even for a day.
The present case is one that demonstrates the juridical deficits of today’s Supreme Court. It is, therefore, an imperative to evolve an effective jurisprudence of “complete justice” by focusing on personal liberty, and thus preserving the country’s democratic legacy.
Source: The Hindu
Previous Year Question
Q.1) With reference to the Constitution of India, prohibitions or limitations or provisions contained in ordinary laws cannot act as prohibitions or limitations on the constitutional powers under Article 142. It could mean which one of the following? (2020)
- The decisions taken by the. Election Commission of India while discharging its duties cannot be challenged in any court of law.
- The Supreme Court of India is not constrained in the exercise of its powers by the laws made by Parliament.
- In the event of grave financial crisis in the country, the President of India can declare Financial Emergency without the counsel from the Cabinet.
- State Legislatures cannot make laws on certain matters without the concurrence of Union Legislature.