To begin, it is important to discern between law and justice. Law, as the framers argue, may (includes ‘may not’ as well) lead to attainment of justice. A strict application only as per its letter at times leads to miscarriage of justice to the litigants, e.g. through procedural complexities, dilatory tactics and numerous requirements. That is precisely why the civil courts u/s 151 Civil Procedure Code & the High Courts u/s 482 Criminal Procedure Code are given inherent powers to do ‘complete justice’. Art 142 of the Constitution empowers the Supreme Court to render complete justice too, but it is purposely not inherently vested in it. Therefore complete justice by Supreme Court can only be done to cure procedural infirmities and it does not confer any substantive power.
Further the marginal note appended to Article 142 supports the view that the article does not confer any substantive power on the Apex Court. It reads: “Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.” & speaks of enforcement and discovery and not about complete justice. Had the makers of the Constitution wanted to confer the power to override statutory provision, its importance would have been spelt out in the marginal note. It is settled law that the marginal note is a part of the statute or the Constitution as the case maybe and a permissible internal aid in construing a statute. But the Supreme Court has used Art 142 to form a new substantive jurisprudence altogether keeping aside the will of our founding fathers as well as the established legal principles.
So the question arises, can the Supreme Court assume powers under article 142 to such an extent that by shielding itself under the ambit of ‘complete justice’, it ignores statutory provisions completely. It must not be forgotten that the courts in India are ‘Courts of law’ and not ‘Courts of justice’. They have been established to uphold the ‘rule of law’ and not ‘rule to provide justice’ or even ‘rule under law’ or ‘rule according to law’. This makes the question that whether Supreme Court is exercising judicial overreach by turning itself into a court of justice empowering itself under Art 142 very significant in the present context.
While the challenge to the constitutional validity of Sec 6A of Delhi Special PoliceEstablishment Act, 1946 is pending before a larger bench, a three judge bench of the Supreme Court in “Coal Scam” by an order dated 17th December 2013 has made it clear that no prior approval of Central Government is required where the investigation is being monitored by the Court. The court had previously declined to lay down guidelines regarding the ‘extent of monitoring’ in Shahid Balwa v Union of India (2G Case) while agreeing that investigation is not the job of a court.
“Monitoring of criminal investigation is the function of investigating agency and not that of the Court-either of the superior Court or of the trial Court…”
“…We also find no reason to lay down any guidelines as prayed for by the Petitioners in a Court monitored investigation….”
If the intention of the Court is to register public injury and ensure proper investigation for safeguarding the exchequer’s money, the ‘monitoring’ done must be clearly defined. So, what empowersthe Supreme Court to give itself such wide powers directing investigating agencies that no permission is required by keeping aside statute books like this & why should the common man trust the Supreme Court when the Hon’ble Judges themselves have been found guilty of a prima facie ‘unwelcome behaviour’, by the same Court itself!
The rise of an inevitable assumption of these powers has been the result of deep public frustration with successive dysfunctional and apathetic, often corrupt governments. This has since 1950 orchestrated a conflict between Parliament and the Supreme Court over guardianship of the Constitution, right from BrijBhushan v. State of Delhi to the recent Sec 377 IPC Judgment.
The Post Independence Supreme Court evolved the jurisprudence of interpretation of fundamental rights especially Art 21, the PIL jurisprudence and has further increased its exclusivity by developing the court monitored investigations jurisprudence. This is in furtherance of the claim of guardianship of the Constitution only, is it not?
Who knows, it may further assume powers to monitor trial proceedings, monitor allocations, monitor distribution of natural resources, monitor various constructions etcetc and what not! Is the apex court of this country running on a ‘common perception’ that investigating agencies are full of flaws whereas the trial court will telecast an eternal sunshine of spotless justice? All the accused politicians got away in the Vineet Narain Case is the answer!
The fundamental object of Article 142(1) is that the Supreme Court must not be obliged to depend on the executive for the enforcement of its decrees and orders. Such dependence would violate the principles of independence of the judiciary andseparation of powers, both of which were held to constitute the basic structure of the Constitution. The interpretation of complete justice by the Apex Court has given it a different dimension which was not intended by the founding fathers.
The Supreme Court has by evolving a new jurisprudence transformed itself into an institution enjoined to promote the ideals of justice. Art 142 has immensely helped it in this. Although there is no dispute that u/a 142, Supreme Court has given exceptional decisions which have proved to be very helpful in maintaining healthy democratic traditions, but it is clear that this power cannot be used where the issue can be settled only through substantive provisions of a statute.
It has also been made clear in a plethora of cases that courts shall not ordinarily interfere with the investigation. The job of the courts starts after the investigation is completed, leave apart exceptional circumstances. The power to do ‘complete justice’ u/a 142(1) is in itself a recognition of the established constitutional position that the Supreme Court was thought of by the framers as a ‘Court of Law’ and specifically not a ‘Court of Justice’. The power u/a 142 to do complete justice is in the nature of a residual power to do justice when a particular case demands its application. In other words, while the court is usually a court of law, in exceptional cases of grave injustice it may derogate itself by assuming certain powers & aid the parties before it. But another important question is the nature and extent of derogation that the court is permitted in pursuing the ends of justice. Euphemistically speaking, the nature of the law the court can derogate from in exercising its power to do compete justice under 142(1). This makes it crystal clear that nothing empowers courts to monitor or supervise any activity which is subscribed fully to other agencies.
In Supreme Court Bar Association v. Union of India by imposing a self-limitation on the scope of Art 142 it was held that “the power to do corrective justice under Art 142 is in a way, corrective power, which gives preference to equity over law…but the substantive statutory provisions dealing with the subject matter of a given case cannot be altogether ignored by this court, while making an order under Art 142”. Clearly, the law on the power to do complete justice does not permit the Court to absolutely ignore substantive statutory limitations.
The doctrine of separation of powers suggests that the three organs i.e Judiciary, executive and legislature must not use their powers in a manner to encroach upon or limit the powers of others. If the exceptional power to do complete justice does not authorise the Supreme Court absolutely to ignore statutory provisions, can the court in exercise of the same power absolutely ignore constitutional limitations? Further, can the court derogate from provisions of the Constitution of which it itself is a creature? Is the Supreme Court bound by law or beyond it? All these remain unanswered while Court monitoredinvestigations jurisprudence demands the basis of its evolution as well as the extent of the monitoring done to be defined when the Judges of the Court are being themselves accused of misuse of their posts and powers.
Furthermore, If “trial by media” is wrong then why is “Monitoring of investigations by Court” completely valid? Do all important issues justify Court’s intervention at a nascent stage? Are we in process of inventing a new form of democracy i.e. ‘Judicial Governance’. The lack of faith in the investigating agencies, (which may/may not be justified on various grounds and apprehensions), is taking India to a crisis of governance. The task of the Supreme Court is to administer justice as per the rule of law. By seeking to use the power under Art 142 to interfere with the investigative process, the Supreme Court has time and again supplanted this rule with exception.
Our Supreme Court in view to position itself as the constitutional supervisor of institutional functioning in a race with the government has redefined the status of the judiciary in a constitutional democracy. The court if only and only if for securing the ends of complete justice, incline to show tendencies of ‘court of justice’ as distinguished from the actual existence of being ‘court of law’, under the power the constitution itself has empowered it with, there may not be any wrong in it. However, unlike the expansion of mere text of Article 21 to a plethora of rights, a check has to be kept on the ‘court monitored investigations’ jurisprudence as nothing empowers the court to convert its very existence in the process of providing justice through various discoveries of new mechanisms under any circumstance.
But again, no one is there to monitor the Supreme Court. Fingers crossed.
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