Let justice be done though the heavens fall-Supreme Court explains the ambit of Article 142 of the Constitution viz-a-viz powers of the Apex Court
ABCAUS Case law Citation:
1218 (2017)(04) SC
Important Case Law Cited/referred
A.R. Antulay v. R.S. Nayak & Another, (1988) 2 SCC 602,
Supreme Court Bar Association v. Union of India & Another, 1998 (4) SCC 409,
State of Punjab v. Rafiq Masih, (2014) 8 SCC 883, i
In a recent judgment arising out of demolition of Babri Masjid, the Hon’ble Supreme Court ordered the transfer of proceedings related to eight accused including Shri L.K. Advani, Shri. Vinay Katiar, Ms. Uma Bharati, Shri Murli Manohar Joshi etc. from SJM Rae Bareilly to the Court of Additional Sessions Judge (Ayodhya Matters) at Lucknow. The Hon’ble Supreme Court also ordered framing of additional charge, trial to be completed on day-to-day basis and judgment to be delivered by the Sessions Court within a period of 2 years.
During the course of Shri K.K. Venugopal, the senior counsel argued that Article 142 of the Constitution cannot be used by the Hon’ble Supreme Court to transfer proceedings against the aforesaid 8 accused persons from Rae Bareilly to Lucknow in view of the fact that the fundamental rights guaranteed to the aforesaid 8 accused persons under Article 21 of the Constitution would otherwise be infringed inasmuch as a right of appeal from the learned Magistrate, Rae Bareilly to the Sessions Court would be taken away. Referring to section 407(1) of the CrPC he contended that an order of transfer from one Special Judge to another within the same State could only be done by the High Court of the concerned State in which both the lower Courts are situated. He submitted that since Article 142 cannot be used against substantive provisions of law, this would thus be a violation of Section 407(1).
On the other hand, Shri Kapil Sibal, senior counsel appearing for CBI while addressing the questions of law submitted that the Hon’ble Supreme Court ought to transfer the case pending at Rae Bareilly to Lucknow as a joint charge sheet had been filed clubbing all the FIRs, including FIR aganst the eight accused. According to him there was nothing to prevent the Hon’ble Supreme Court from using the extremely wide power under Article 142 to do the complete justice.
Before going any further, let us go through the Article 142 which is extracted hereunder;
“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.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”
Their Lordships observed as under;
Article 142(1) of the Constitution of India had no counterpart in the Government of India Act, 1935 and to the best of our knowledge, does not have any counterpart in any other Constitution world over. The Latin maxim fiat justitia ruat cælum is what first comes to mind on a reading of Article 142 – Let justice be done though the heavens fall. This Article gives a very wide power to do complete justice to the parties before the Court, a power which exists in the Supreme Court because the judgment delivered by it will finally end the litigation between the parties. It is important to notice that Article 142 follows upon Article 141 of the Constitution, in which it is stated that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. Thus, every judgment delivered by the Supreme Court has two components – the law declared which binds Courts in future litigation between persons, and the doing of complete justice in any cause or matter which is pending before it.
It is, in fact, an Article that turns one of the maxims of equity on its head, namely, that equity follows the law. By Article 142, as has been held in the State of Punjab judgment, equity has been given precedence over law. But it is not the kind of equity which can disregard mandatory substantive provisions of law when the Court issues directions under Article 142. While moulding relief, the Court can go to the extent of relaxing the application of law to the parties or exempting altogether the parties from the rigours of the law in view of the peculiar facts and circumstances of the case. This being so, it is clear that this Court has the power, nay, the duty to do complete justice in a case when found necessary.
In the context of the instant case in hand, it was observed that
In the present case, crimes which shake the secular fabric of the Constitution of India have allegedly been committed almost 25 years ago. The accused persons have not been brought to book largely because of the conduct of the CBI in not pursuing the prosecution of the aforesaid alleged offenders in a joint trial, and because of technical defects which were easily curable, but which were not cured by the State Government. Almost 25 years have gone and yet we are solemnly reminded that Respondent Nos.4 and 5’s fundamental rights should not be curtailed by any order passed under Article 142. When asked what these rights were, we were referred to the judgment in Antulay’s case (supra) for the proposition that if transfer of the case against Respondent Nos.4 and 5 is made from Rae Bareilly to Lucknow, one right of appeal would be taken away inasmuch as the transfer would be from a Magistrate to a Court of Sessions.
The Hon’ble Supreme Court stated that what is being done by it today is only to remedy what was expected by the Allahabad High Court to have been done shortly after its Judgment
The Hon’ble Supreme Court held that the Article 142 can be used for a procedural purpose, namely, to transfer a proceeding from one Court to another does not require much argument. Clearing the doubts, their Lordships clarified that Section 406 did not apply to the facts of the present case as the transfer is from one Criminal Court to another Criminal Court, both subordinate to the same High Court.
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