With Supreme Court’s ruling on divorce, a look at its powers under Article 142 – and their criticism

Source: The post is based on the article “With Supreme Court’s ruling on divorce, a look at its powers under Article 142 – and their criticism” published in Indian Express on 1st May 2023

What is the News?

The constitution bench of the Supreme Court held that a court can directly grant divorce under Article 142 of the Constitution, in cases where the marriage has irretrievably broken down.

This can be done 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.

What is Article 142 of the Indian Constitution?

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How have courts exercised power under Article 142?

The powers under Article 142 are sweeping in nature. But the SC has defined its scope and extent through its judgments over time.

In the Prem Chand Garg case, the Supreme Court demarcated the exercise of powers under Article 142(1) by saying that an order to do complete justice between the parties must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.

But in the Bhopal gas tragedy case, the SC in 1991 ordered UCC to pay $470 million in compensation for the victims of the tragedy. It exercised these powers under Article 142 of the Constitution.

– While exercising, the court clarified that prohibitions on limitations on provisions contained in ordinary laws cannot, ipso-facto act as prohibitions or limitations on the constitutional powers under Article 142.

In the 2006 ruling in ‘A. Jideranath vs Jubilee Hills Co-op House Building Society’, the Supreme Court discussed the scope of the power under Article 142. It held that in its exercise no injustice should be caused to a person not party to the case.

What is the criticism of Article 142 and how have courts countered it?

Firstly, the absence of a standard definition for the term “complete justice” under Article 142 allows the possibility of its arbitrary exercise or misuse.

Secondly, another criticism of the powers under Article 142 is that unlike the legislature and the executive, the judiciary cannot be held accountable for its actions. 

– The power has been criticized on grounds of the separation of powers doctrine, which says that the judiciary should not venture into areas of lawmaking and that it would invite the possibility of judicial overreach.