Why in news? A five-judge or constitution bench of the Supreme Court 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.’
• The Bhopal gas 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”.

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

• They are arbitrary and ambiguous.
• 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.
• 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
• 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 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”.
• 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.