A new judicial device for ‘complete justice’


: The post is based on the article “A new judicial device for complete justice” published in the “The Hindu” on 13th July 2022.

Syllabus: GS2 – Important Provisions of the Constitution of India

Relevance: Powers of the SC and Individual Liberty

News: In recent, Mohammed Zubair, the co-founder of Alt News was arrested by the Uttar Pradesh Police, under Section 295A and Section 153-A of the Indian Penal Code (IPC) for outraging religious feelings and promoting religious enmity respectively.

The Supreme Court (SC) of India granted him interim bail, but he will continue to be in jail because he is on remand in another case registered by the Delhi police. The court was aware of this, but didn’t grant bail in the other case.

SC cannot be seen helpless in cases involving personal liberty.

Powers of the SC of India

The SC of India is regarded as the world’s most powerful top court, on account of its wide power of judicial review.

Writ Jurisdiction: It has the jurisdiction to issue writs under Article 32 of the Constitution.

Original Jurisdiction: It also has the original jurisdiction under Article 131 of the Constitution.

Appellate Jurisdiction: There is also wide appellate power under Articles 132, 133, 134 and 136 of the Constitution.

The Supreme Court has the power to “make such an order if it is necessary for doing complete justice in any cause or matter pending before it”, as per Article 142 of the Constitution.

What are the challenges before the judiciary?

Many political prisoners languish in prison because their bail pleas have been repeatedly rejected by different courts.

The executive is able to register multiple FIRs in different States to ensure that the dissident is not released from prison even if bail is granted in some cases. For example, the Mohammad Zubair Case.

Thus, the jail jurisprudence of the executive effectively surpasses the Court’s bail jurisdiction.

Way Forward

The Supreme Court cannot afford to work with conventional legal wisdom, which proclaims that every criminal case is a case which requires to be dealt with as such and taken to its logical conclusion.

The SC should invoke its extraordinary power under Article 142 in order to do complete justice. In Delhi Development Authority vs Skipper Construction Company (1996), the SC has said that the power under Article 142 should remain “undefined and uncatalogued, so that it remains elastic enough to be moulded to suit the given situation”.

The constitutional court should evolve a new mechanism of its own in order to preserve the democratic foundation of the country, like the Public Interest Litigation (PIL).

For example, India can adopt the new doctrine of “unconstitutional state of affairs” that has been developed by the Constitutional courts in Colombia and Brazil. Under this doctrine, the court deviates from routine procedural rigour and is able to issue orders to address structural deficits or to protect fundamental rights with a sense of realism.

The courts should be determined to check the executive’s excesses and create and perpetuate a democratic judicial atmosphere that supports the cause of freedom like the SC’s intervention in the Centre’s COVID-19 vaccine policy and the Pegasus episode.

Treat them as a class: The SC can treat political prisoners and dissenters who are facing multiple FIRs and undergoing unjustified incarceration as a class. The SC should develop effective jurisprudence in which it can call for all the records pertaining to the multiple FIRs in order to do “complete justice”.

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