Has the Supreme Court been trigger-happy with Article 142?

In its April 8 Judgement in State of Tamil Nadu v The Governor of Tamil Nadu, the Supreme Court invoked Article 142 to grant deemed assent to bills that had been pending with the Governor R.N. Ravi. 

This has, once again, opened up a debate on the nature and scope of this constitutional provision, which allows the top court to “pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.” In a speech delivered to a batch of Rajya Sabha interns recently, Vice President Jagdeep Dhankar referred to the provision as a “nuclear missile against democratic forces available to the judiciary 24×7.” 

While the Judgement has been hailed for ensuring—by laying down strict timelines for gubernatorial and presidential assent—accountability, its remedy of ‘deemed assent’ under Article 142 has led to concerns around the Court entering uncharted territory, with implications on law-making and separation of powers.

However, a closer look at precedent shows that the Court has been circumspect about exercising the wide power granted to it under Article 142. 

Article 142 as remedy to back finding

In the wake of the Sabarimala judgement in 2018, then Attorney General K.K. Venugopal had unfavourably described Article 142 as a “Kamdhenu from which unlimited powers flowed” to the Supreme Court. The year before, he had written that while it was true that Article 142 had been deployed to do “tremendous good to deprived sections”, it was time to institute checks and balances on it. 

He suggested that all cases invoking Article 142 be referred to a Constitution Bench of at least five judges. The Union government is likely to turn to these arguments as it reportedly mulls over filing a review petition against State of Tamil Nadu. 

In the opinion authored by him on behalf of himself and Justice R. Mahadevan, Justice J.B. Pardiwala sought to rule out the concern that the Bench was exercising power under Article 142 in a casual manner. He observed: 

“On the contrary, it is only after deepest deliberations, and having reached the firm conclusion that the actions of the Governor—first in exhibiting prolonged inaction over the bills; secondly in declaring a simpliciter withholding of assent and returning the bills without a message; and thirdly in reserving the bills for the President in the second round—were all in clear violation of the procedure envisaged under the Constitution, that we have decided to declare the deeming of assent to the 10 bills, considering it to be our constitutional bounden duty.”

The Court resorted to Article 142 as a way to give effect to a remedy that would back its finding (of the Governor having violated constitutional procedure). The “deeming assent” was a way to ensure that the bills were not held back due to further inaction by the Governor or a lack of deference to the Judgement.

Another factor that might support the Court’s use of Article 142 in the case was its identification of a clear public interest. It accepted the TN government’s contention that the Governor’s action violated the principles of federalism and parliamentary democracy. 

Interestingly, Venugopal, despite his previous public criticism, has expressed his support for this Judgment. Venugopal’s view on State of Tamil Nadu is understandable because it is likely to have immense precedential value in a similar matter in which he is appearing for the Kerala government. 

Did the Tamil Nadu government plead Article 142?

The Tamil Nadu government’s petition did not contain a specific prayer for the invocation of Article 142. The prayer included the usual one to pass any order or direction that the Court “deemed fit and proper in the facts and circumstances of the present case.” 

During the hearing, there were no substantive arguments on whether the Court could use Article 142. Nor was it one of the questions framed by the bench. 

However, it can be said that the plea for invoking Article 142 was implied in Tamil Nadu’s oral arguments. Senior Advocate P. Wilson submitted that the Court must declare that it is deemed that assent has been granted to the Bills. Clearly, the Court could not have done this without taking recourse to Article 142. 

Besides, Tamil Nadu cited the Court’s judgment in A.G. Perarivalan v State, Through Superintendent of Police (2023), which was about the delay caused by the Governor in deciding remission matters. In that case, the Court had invoked its power under Article 142 to declare that the prisoner was deemed to have served the sentence and could be released.

Research published by IIM-Ahmedabad in May 2024 suggests that of the 1579 Supreme Court cases where the terms “Article 142” or “complete justice” were used between 1950 and 2023, the Court “explicitly” used its power under the provision in only half the cases. The Court’s deployment of Article 142 was “ambiguous/not used” in almost 40 percent of cases. It expressly rejected the use of the provision in about 10 percent of cases. 

In Vivek Narayan Sharma v Union of India, which challenged the constitutional validity of demonetisation, the majority rejected the use of Article 142 to grant relief while the minority issued directions under the provision. 

‘Supplement but not supplant’

In Supreme Court Bar Association v Union of India (1998), a landmark case on the use of Article 142, the Court referred to the provision as “a valuable weapon in the hands of the Court to prevent clogging or obstruction of the stream of injustice.” But it also imposed a kind of fetter on the provision by noting that it can “supplement” but not “supplant” the substantive law under consideration. 

There is a long line of cases, including recent ones, that suggest that the Court has not been as trigger-happy with Article 142 as is being argued in some quarters following the Judgement in the State of Tamil Nadu. In a judgement from the first week of this month (Jomon K.K. v Shajimon P.), the Court refused to exercise its powers under Article 142 on the ground that the appellant failed to demonstrate a “palpable injustice”. 

The facts were such that the appellant had a higher qualification than was prescribed for appointment to the post of Lascar in the Kerala State Water Transport Service. Yet, he did not have the “current” Lascar’s licence as mentioned in the advertisement. Since he had gained entry through a process that was invalid, the Bench held that he could not seek relief under Article 142. 

In Shilpa Sailesh v Varun Sreenivasan (2023), even as the Court said it could depart from procedural as well as substantive laws, it noted that its use of Article 142 has to be based on considerations of “fundamental general and specific public policy.” Fundamental general conditions of public policy, according to the Court in Shilpa Sailesh, refer to fundamental rights, secularism, federalism and other basic features of the Constitution.

Article 142 in a legal ‘vacuum’

The Court’s implied use of Article 142 to lay down the timeline of 30 days for the Governor to send back bills and grant assent is meant to address controversies of a similar nature (two are already live in the Opposition-ruled states of Kerala and Telangana). The Court justified this directive on the ground that there was a “vacuum” in the Constitution on the issue of timeline. 

There are several instances of public interest cases where the Court has issued directions under Article 142 to fill a gap in the law. But this does not mean that the Court can sway the field in situations where the statute is categorical in its stipulations. In Selvi J. Jayalalithaa v State of Karnataka (2013), for instance, the Bench of Justices B.S. Chauhan and S.A. Bobde refused to exercise powers under Article 142 for a direction to extend the tenure of the Special Judge on the ground that it would “violate a statutory provision.” 

In Ashok Sadarangani v Union of India (2012), the Court noted that it must be “circumspect” about the power under Article 142 and exercise it “sparingly”. In this case, the Court was considering whether a complaint in a non-compoundable criminal offence could be quashed following a compromise on the civil aspect involving money owed to a bank. The Court declined relief under Article 142 after it found that the petitioner had offered a property for which they had no title as security.

Samaj Parivartana Samudaya v State of Karnataka (2013) is a compelling case to test how the Court deploys Article 142 in the face of existing legislative provisions. The Central Empowered Committee had recommended the imposition of a complete ban on the mining of iron ore and allied minerals in Bellary district because of rampant over-exploitation of the environment. The Court considered the argument that it could not exercise Article 142 when provisions under various forest and environmental laws laid down the procedure for the termination of mining leases. 

The Court, on its part, justified its decision to cancel the leases of certain category of mines on the ground that the present case was a mass tort—the statutory mechanisms in question “would neither be effective nor efficacious to deal with the extraordinary situation that has arisen on account of the large-scale illegalities committed in the operation of the mines….” Here, the Court’s standard for the remedy was that it was “not in conflict with any law enacted by the legislature.” 

In Savelife Foundation v Union of India (2016), the Court declared that the guidelines issued by the Ministry of Road Transport for providing immediate help to accident victims and protection to Good Samaritans will “have the force of law” until the legislature steps in. 

Article 142 and the scope for enforcement

For a direction under Article 142 to be effective, there needs to be an implementation mechanism. In Pravasi Bhalai Sangathan v Union of India (2014), the petitioner sought directions to prevent hate speeches. The Court noted that, in the case of hate speech, statutes provided sufficient remedy. While acknowledging that the “root of the problem is not the absence of laws but rather a lack of their effective execution”, it refused to entertain the petition which was “calling for issuing certain directions which are incapable of enforcement/execution.”

Seen in the light of these cases, perhaps it is an exaggeration to say that the Court’s use of Article 142 in the State of Tamil Nadu case was uncharted, unprecedented or inexplicable. The Court’s decision is consistent with past practice, considering that there is no statutory provision that is in conflict with its findings—both on “deemed assent” and the timeline it prescribed for the Governor and President to assent to and opine on state laws. 

It would not be a stretch to say that the Judgement will constitute a key precedent in other instances involving the exercise of pocket veto by the Union Government and its representatives. The habit that immediately comes to mind is the executive’s inclination to sit on Collegium recommendations for the appointment and transfer of judges in the higher judiciary.