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.
Utility of Article 142 in providing complete Justice:
- Prem Chand Garg case 1967- Art. 142(1) confers upon the Court powers which can contravene the provisions of Article 32 (right to constitutional remedies) in order to provide complete justice.
- Laxmi Devi v. Satya Narayan – The accused to award compensation to the victim with whom he had sexual intercourse with a promise to marry and had later retracted his promise
- Bhopal gas tragedy case 1991 – UCC to pay $470 million in compensation for the victims of the tragedy and highlighted the wide scope of Article 142 (1)
- Siddiq v. Mahant Suresh Das – (Ayodhya dispute), the Supreme Court had exercised the powers mentioned under Article 142 of the Constitution.
- Five-judge constitution bench 2023 – 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.
Judges to the higher judiciary are appointed by the President under Article 124 (for Supreme Court judges) and Article 217 (for High Court judges) with the assistance of the Collegium system. The Collegium system evolved following the Three Judges case. {The government may provide inputs and request reconsideration of a recommendation. However, if the Collegium reiterates its recommendation, the government is formally bound to accept it}
- The Supreme Court Collegium is a five-member body chaired by the incumbent Chief Justice of India (CJI) and comprising the four other senior-most judges of the court at that time.
- Similarly, the High Court Collegium is led by the incumbent Chief Justice and includes the two other senior-most judges of that court.
Advantages of the Collegium system:
- Judicial Independence: Ensures separation of judiciary from executive, maintaining the doctrine of separation of powers.
- Prevents Politicization: By operating independently, it avoids politicizing judicial appointments, ensuring fairness.
- Government as Litigant: Involves experts in recommending judges, crucial as government is a major litigant.
- Consultative Process: Engages domain experts, enhancing the quality of judicial appointments.
Issues with Collegium System
- The Constituent Assembly rejected the proposal to grant the Chief Justice veto power over appointment.
- Lack of Transparency:Non-transparent and closed nature with no checks and balances.
- Disturbs the balance of power between the executive and judiciary as per the Second Judges case.
- Nepotism and Corruption:“Uncle Judges Syndrome” prevalent, leading to nepotism, corruption, and personal patronage. (Law Commission in its 230th report)
- Inequitable Representation:High Court appointments (2018-2022) heavily favor the general category (79%), with low representation from OBCs, SCs, and STs.
- Gender Disparity:Only 13% of all High Court judges are female, with three women justices among the 33 in the Supreme Court.
- Merit vs Seniority : This system overlooks several talented junior judges and advocates.
Way forward:
- Reforming Collegium System: Following the Supreme Court’s rejection of the 99th Constitutional Amendment Act (NJAC), there’s a pressing need to expedite the finalisation of the Memorandum of Procedure (MoP), addressing key aspects like eligibility criteria, transparency measures, Secretariat establishment, and a complaints mechanism.
- Inclusive Appointments: Ensure marginalised groups, including women, are represented in higher judiciary.
- Disclosure Transparency: Mandate full disclosure of applicant relationships to judges.
- Time-bound Process: Implement definite timelines for efficient appointments.
