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.
Article 123 of the Constitution empowers the President to promulgate ordinances during the recess of Parliament. The ordinance-making power allows the President to deal with unforeseen or urgent matters. But, the exercise of this power is subject to the following four limitations:
- Ordinances can be issued when both Houses are not in session or when only one House is in session. (not a parallel power of legislation)
- The President can issue an ordinance only when satisfied that immediate action is necessary, and his satisfaction is justiciable on the ground of malafide (Cooper case, 1970).
- Ordinances can only be issued on subjects on which Parliament can make laws and are subject to the same constitutional limitations as acts of Parliament.
- Every ordinance issued during the recess of Parliament must be laid before both Houses when it reassembles.
- Article 355 refers to the provision in the Constitution that states that “It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of this Constitution”.
- Part of emergency provisions contained in Part XVIII of the Constitution of India, from Article 352 to 360.
- Based on the principle of “duty to protect”.
EXTRA – Imposed in Manipur, in an effort to control the unrest in the state.
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.
The recent recovery of ycash from a Delhi judge’s residence (2024) has reignited concerns about judicial corruption, highlighting the need to balance independence with accountability in India’s judiciary.
Judicial Independence vs Judicial Accountability:
| Aspect | Judicial Independence | Judicial Accountability |
| Definition | Freedom of the judiciary from external pressures (executive, legislature, media, etc.) | Obligation of judges to uphold integrity, transparency, and answerability in their conduct |
| Objective | To ensure fair and impartial justice | To ensure responsible and ethical behaviour |
| Constitutional Basis | Article 50, Article 124(4), security of tenure | Implied under Rule of Law; supported by Bangalore Principles |
| Nature | Institutional and individual autonomy | Ethical and procedural responsibility |
| Key Mechanisms | – Security of tenure – Separation of powers – Financial independence | – In-house procedures – Restatement of Judicial Values – Bangalore Principles |
| Risks if Lacking | Judicial bias, political interference | Arbitrary judgments, corruption, loss of public trust |
| Ideal Outcome | An impartial, fearless judiciary | A transparent, responsible judiciary |
Importance of Judicial Independence:
- Constitutional Provisions–
- Art 50: Separation of judiciary from executive.
- Arts 124 & 217: Secure tenure, fixed salary, and impeachment protect independence.
- Art 121 & 211: Prohibit parliamentary discussion on judicial conduct except in impeachment.
- Art 32 & 226: Empower courts to enforce rights, ensuring the judiciary acts independently.
- Essential for the Rule of Law:
- Shield the judiciary from political and executive pressure.
- Ensures fair adjudication and protection of individual liberties.
- Facilitates constitutional review and maintains checks and balances.
- Enables courts to protect minority and dissenting voices in a majoritarian democracy.
- Landmark Judgments:
- Kesavananda Bharati (1973)– Independence forms part of the basic structure.
- S.P. Gupta (1981)– Stressed the need for judicial autonomy in appointments.
- Second Judges Case (1993)– Elevated judicial primacy in appointments.
- NJAC Judgment (2015)– Preserved autonomy by striking down executive influence.
Need for Judicial Accountability:
- Restatement of Values of Judicial Life (1997)- Sets moral expectations for judges; however, it is non-binding and lacks enforcement.
- Bangalore Principles of Judicial Conduct (2002)- Adopted by Indian judiciary; outlines global ethical standards like integrity, impartiality, and accountability.
- Democratic Responsibility–
- The judiciary must align with constitutional values and public expectations.
- Accountability prevents arbitrariness and misuse of authority.
- Helps preserve the legitimacy of the judiciary in a democracy.
- Reduces the scope for personal bias and opacity in functioning.
- Issues in the Current Framework–
- Opaque Collegium System – lacks institutional transparency.
- No formal code of conduct or independent disciplinary mechanism.
- Inordinate delays in high-profile and pending cases.
- Few removals despite misconduct due to the difficult impeachment process.
- Lack of public reasoning in collegium decisions reduces trust.
Balancing the Two:
- Transparent Collegium System– Institutional reforms and open proceedings in appointments.
- Internal Ethics Framework– Code of conduct and in-house disciplinary mechanisms must be strengthened.
- Judicial Performance Audit (Non-interfering)– Without affecting independence, review efficiency and case disposal rates.
- Constitutional Oversight with Safeguards– Use of Judicial Accountability Commission with checks against political misuse.
- Judicial Education and Ethics Training– Promote awareness of ethical standards among judges.
- Digital Transparency & Public Disclosure– Publish collegium decisions, judicial assets, and court data online to improve trust.
- Civil Society & Academic Engagement– Involve legal academia and civil society in feedback on judicial reforms and accountability.
Way forward:
- Judicial Standards and Accountability Bill (2010)–
- Proposed complaints mechanism and code of conduct.
- Lapsed without becoming law due to apprehensions of executive overreach.
While judicial independence is non-negotiable for democracy, accountability ensures it doesn’t morph into judicial autocracy. A statutory code of ethics, reformed appointments, and performance audits can achieve this equilibrium.
