When Judges Turn Lawmakers: The Dangerous Expansion Of Article 142

It is one thing to ask governors in opposition-ruled states to not play politics and sit on bills passed by legislatures, quite another to mess around with constitutional provisions and convert the judiciary into the final arbiter on all matters.

The recent verdict of a two-judge bench comprising Justices J B Pardiwala and R Mahadevan, which heard petitions of the Tamil Nadu government against Governor R N Ravi’s tendency to delay sanctions on bills passed by the state legislature, serves the purpose of sending a message that governors cannot substitute their wisdom for that of elected legislators.

Equally, one cannot but point out that the courts have no business telling other constitutional functionaries what they must or must not do and in what timeframe when the Constitution itself does not prescribe any such thing.

If there is a sense that governors are overreaching, the remedy for it lies in the political sphere and not the courts. Governments that think they are being singled out for legislative delay can and should make it a political issue and win the argument in the court of public opinion. It is not up to the courts to meddle in what is an argument between the legislature and the governor. The courts cannot read into the Constitution what isn’t there.

Vice-President Jagdeep Dhankhar’s outspoken intervention on this issue is thus an important pointer to where things are going wrong with the judiciary. From being a creature of the constitution, they have become its effective master. As things stand, the constitutional courts often seem to stand above the Constitution.

Dhankhar’s statements correctly point out that Article 142 has been weaponised by the judiciary to make the courts more powerful than other arms of the state, thus breaking the fundamental democratic rule of creating checks and balances between institutions. Among other things, he said that Article 142 has been used like a “nuclear missile against democratic forces” and that the judiciary was acting like a “super parliament.”

He was apoplectic over the Supreme Court’s prescription of timelines for presidential assent to bills. The Times of India quoted him as saying, “So we have judges who will legislate, who will perform executive functions, who will act as a super parliament, and absolutely have no accountability because the law of the land does not apply to them.”

The last was a reference to the Delhi High Court judge in whose residence huge amounts of cash were discovered. The matter was kept under wraps for several days before the Supreme Court appointed a three-judge inquiry panel, which is yet to deliver its verdict. Dhankhar said that investigations were part of executive responsibility, not the judiciary. But much water has flowed down the river on this issue since courts have been intervening and also supervising special investigations and follow-up actions for some time now.

Despite Dhankhar’s hyperbolic outrage over judicial overreach, it is clear that he has made some strong points.

Article 142 allows the Supreme Court and constitutional courts (that is, the High Courts) to step into executive and legislative domains by making their verdicts law. The article reads:

“142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc

“(1)The Supreme Court, in the exercise of its jurisdiction, may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.”

As an aside, one can well ask whether error-prone human judges can ever deliver “complete justice” when they can’t even bring down the pendency of court cases. But we shall let that pass.

Article 142, along with some others, has been repeatedly used to either override existing laws or pare down laws legislated by states or the Centre. Thus, Supreme Court verdicts can tell us that there is a “basic structure” in the Constitution that even Parliament cannot alter when the Constitution mentions no such thing. The court can, out of thin air, create a collegium to appoint judges to the higher judiciary, never mind that Article 124 only asks for consultations with the Chief Justice on judicial appointments. It can meddle in the Centre’s paid vaccine policy or decide that no bars can be set up within 500 metres of highways or even tax SUVs entering Delhi.

Now, of course, the court has decided that the president and governors must act in specific ways and in specified timelines. Article 201 does not specify any timeline for a president to give assent to a bill.

But this did not stop Justices Pardiwala and Mahadevan from indirectly rewriting parts of the Constitution in their judgement. They also made it a point to say that the president must seek the court’s opinion in such cases. They wrote: “We are also of the view that a bill appearing to be unconstitutional must be assessed by a judicial mind. The President is not just precluded but constitutionally expected to refer the question of vires of a bill to this court as the apex judicial institution to ascertain the constitutionality thereof and accordingly enable the President to act in respect of the said bill under article 201.”

So, not just will the president have to act on the aid and advice of the cabinet, but she will have an additional adviser in the form of the Supreme Court — whose advice cannot be ignored.

And just in case you think this is a victory for federalism after pesky governors have been put in their place, the reality is that the Tamil Nadu laws that the governor was sitting on have been declared law by the judiciary — which impinges on the rights of the legislature too. Presidents and governors, while not invested with independent executive powers, are part of the executive. Their roles in operationalising laws passed by legislatures are part of the Constitution.

The advent of public interest litigation (PIL) in recent decades has resulted in more and more judicial interventions using Article 142 of the Constitution.

A study of judgements delivered by the Supreme Court between 1950 and 2023 by the Indian Institute of Management, Ahmedabad (IIMA), shows how widespread the use (or misuse?) of Article 142 is in contemporary cases.

The researchers counted the number of judgements that used either “article 142” or “complete justice” and found in 1,579 cases this article was mentioned. (You can read and download the working paper and annexures by M P Ram Mohan, Sriram Prasad, Vijay V Venkitesh, Sai Muralidhar, and Jacob P Alex from here and here.)

Not all mentions involved using Article 142’s extraordinary powers for deciding cases, but the working paper found that these special powers were used in 791 cases. In the 74 years between 1950 and 2023, the use of the Article comes to an average of just under 11 a year. In short, approximately every month barring one, the courts are making the law using this provision.

Worse, and this is a point made by the Vice-President as well, these judgements were delivered by small benches, even in cases that may involve constitutional issues, where the norm is to have at least five judges. The Pardiwala and Mahadevan bench that delivered such a far-reaching judgement on the powers of the governor and president to withhold assent to bills had just two judges on it.

Notes the IIMA study: “In examining the bench strength, we found that the maximum number of cases were heard by a two-judge bench (73.78 percent), followed by a three-judge bench (20.71 percent) and a five-judge bench (4.18 percent). Uniquely, there were eight instances of a single-judge bench and one instance of a four-judge bench.”

It seems as if fewer and fewer judges are deciding the law to deliver “complete justice” using Article 142 either as an argument or to invoke its special powers.

It is interesting to note that Article 142 was not debated at all in the Constituent Assembly. It was passed without much discussion. This suggests that the Assembly did not see scope for its misuse, and saw the article as only an enabling provision to see that court judgements were not mere opinions. They created a Bhasmasur of a provision without realising it.

In Hindu mythology, the asura Bhasmasura was supposed to have done extreme penance, which pleased Lord Shiva, who granted him a boon. He asked for, and got, the power to burn to cinder anyone he touched with his hands.

In the story, Bhasmasura used his new powers to test it on Shiva himself, forcing the latter to flee and request Sri Vishnu for help. Vishnu turned himself into a beautiful maiden who captivated Bhasmasura and, through her mesmerising dance, got him to touch his own head and burn himself down.

One hopes that the Article 142 Bhasmasura inadvertently created by the Constituent Assembly is not used by the apex court to burn down the Constitution itself, one case at a time. The courts cannot arrogate such power to themselves.

This piece was first published on R Jagannathan's blog.