The Indian Supreme Court has issued a reminder that its use of Article 142(1) of the Constitution must be legitimate and cautious, as its verdict ends the litigation between parties. The provision gives the court the power to enforce decrees and orders and to do “complete justice” in any matter before it. The court has discretion to dissolve a marriage on the ground of “irretrievable breakdown” in exercise of its plenary power under Article 142(1), it said, and can grant divorce by mutual consent while dispensing with the six-month waiting period mandated under the Hindu Marriage Act, 1955.
The five-judge Constitution bench, headed by Justice S K Kaul, said the exercise of power and discretion under Article 142(1) is valid and as per the Constitution, as long as “complete justice” required by the “cause or matter” is achieved without violating fundamental principles of general or specific public policy. The power, like all powers under the Constitution, must be contained and regulated, as relief based on equity should not disregard the substantive mandate of law based on underlying fundamental general and specific issues of public policy, the court said.
The court said this power, which is significant as the judgment delivered by this court ends the litigation between the parties, must be legitimate and mindful of the danger that arises from adopting an individualistic approach as to the exercise of the constitutional power. While the plenary and conscientious power conferred on this court under Article 142(1) of the Constitution of India is seemingly unhindered, it is tempered or bounded by restraint, which must be exercised based on fundamental considerations of general and specific public policy.
The court also said the power conferred on the apex court is not a replication of the inherent power vested with the civil court under the Code of Civil Procedure or the high court under the Code of Criminal Procedure. The constitutional power conferred by Article 142(1) on the apex court is not a replication of the inherent power vested with the civil court under the CPC, and the high court under the CrPC.