Guest Post: Limitation and Article 142

Editor’s Note 1Posts about the contemporary Supreme Court may be read in the context of the caveats set out in this post (link).


Editor’s Note 2: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations (link) against a former Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances (e.g., the introduction of structural mechanisms to ensure accountability)].


[This is a guest post by Rohan Deshpande.]


Introduction

On March 23, 2020, a three judge bench of the Supreme Court presided by the Chief Justice of India in a suo moto writ petition sought to take cognizance of challenges faced by litigants in filing legal proceedings within limitation during the coronavirus pandemic. The Court was pleased to exercise its powers under Article 142 read with Article 141 of the Constitution and passed an order (“Order”) stating that:

“[the] period of limitation in all such proceedings [before courts / tribunals including the Supreme Court], irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.”

This direction continues to be in force, and through subsequent orders (here and here), has been specifically extended to other enactments such as the Arbitration and Conciliation Act, 1996, and the Negotiable Instruments Act, 1881.

Article 142 and its scope

Article 142(1) of the Constitution empowers the Supreme Court to pass such order “as is necessary for doing complete justice in any cause or matter pending before it”, and any order so passed is stated to be enforceable throughout India, while Article 141 states that the law declared by the Supreme Court is binding on all courts within India. The jurisdiction to pass the Order can thus be traced to Article 142(1).

Article 142 was draft article 118, and was adopted without debate by the Constituent Assembly on May 27, 1949. Thereafter, the following Constitution Bench decisions have attempted to answer the vexed question surrounding the scope and extent of the Supreme Court’s power under Article 142 – Prem Chand Garg v. Excise Commissioner, U.P., Allahabad(1962), A.R. Antulay v. R.S. Nayak (1988), Union Carbide Corpn. v. Union of India (1991) and Supreme Court Bar Assn. v. Union of India(1998). All except Antulay (seven judge bench) were decisions by five judge benches.

In Prem Chand Garg, a majority of four judges of the Supreme Court held that the powers under Article 142(1) were indeed wide, but an order to do ‘complete justice’ under this provision, “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.” These observations were made while holding that a rule, requiring furnishing of security for costs by the petitioner in a petition under Article 32 of the Constitution, was invalid.

The above finding was adopted by a majority of five (expressed through different opinions) in Antulay’s case to hold that a direction given by the Supreme Court to transfer cases from the Court of Special Judge, Greater Bombay to a sitting judge of the Bombay High Court was violative of the relevant statutory scheme (Criminal Law Amendment Act, 1952) read with Articles 14 and 21 of the Constitution, and could not have been passed.

However, in Union Carbide, the bench of five unanimously observed (with Ahmadi, J. dissenting on a separate issue) that it was “necessary to set at rest certain misconceptions in the arguments touching the scope of the powers of this Court under Article 142(1) of the Constitution”, and proceeded to hold that observations in both Prem Chand Garg and Antulay on the effect of inconsistency with statutory provisions were “unnecessary” as these cases ultimately turned on breach of constitutional rights. Deviating from existing law and upholding the compensation of US $470 million payable by Union Carbide to the Union of India to settle claims and liabilities of those affected by the Bhopal gas leak, the bench held that:

“The power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142. Such prohibitions or limitations in the statutes might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the court on which conferment of powers — limited in some appropriate way — is contemplated. The limitations may not necessarily reflect or be based on any fundamental considerations of public policy.” (emphasis added)

And further, that it would be:

“… wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of “complete justice” of a cause or matter, the apex Court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly.”

The statement emphasised above thus sought to confer unfettered jurisdiction under Article 142 without regard to the relevant statutory scheme, by distinguishing the applicability of Prem Chand Garg and Antulay. This was even recognised by the incumbent Attorney General for India, as the Supreme Court placing itself “above the laws made by Parliament or the legislatures of the States”.

Subsequently, in Supreme Court Bar Assn., the Supreme Court unanimously sought to declare that the aforesaid findings in Union Carbide were not in conflict with either Prem Chand Garg or Antulay. The Court deemed that Union Carbide nowhere said, expressly or impliedly, that substantive statutory provisions expressly dealing with the subject can be ignored while exercising powers under Article 142. Rather, the statement from the decision in Union Carbide that the Supreme Court “will take note of the express prohibitions in any substantive statutory provision … and regulate the exercise of its power and discretion accordingly” was interpreted as an indication to the contrary.

The powers under Article 142 of the Constitute were held to be supplementary in nature; not those which could be used to “supplant” the applicable substantive law, as constitutional powers were not meant to be exercised when such exercise came in directly conflict with express statutory provisions in a statute expressly dealing with the subject. And it was held that Article 142, “even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly.” Thus, while dealing with contempt proceedings, suspension of a contemnor advocate’s right to practice – statutorily exercised only by the Bar Council – was held to be impermissible in exercise of jurisdiction under Article 142.

It is evident that these findings, iterated by a bench of equivalent strength, are prima facie inconsistent and whittle down the breadth of Union Carbide. Notably, the Court in Supreme Court Bar Assn. did not opine either way as to whether the bench in Union Carbide was justified in holding that the observations in context of statutory provisions and Article 142, as set out in Prem Chand Garg and Antulay,were unnecessary.

Despite such inconsistency between Union Carbide and Supreme Court Bar Assn.,the Supreme Court has followed the declaration / clarification of law in Supreme Court Bar Assn. in context of powers under Article 142 in various subsequent cases (of lesser bench strength). These include the division bench decision in A.B. Bhaskara Rao v. CBI (2011), wherein a catena of cases decided after Supreme Court Bar Assn. were referred (in addition to Prem Chand Garg), all reiterating that Article 142 cannot be exercised so as to negate statutory provisions. The Court summarised various principles applicable to Article 142 on the lines of these decisions, and held that the said provision could not be used to waive or impose lesser sentence than the minimum prescribed by statute.

Analysis of the Order

Through the Order, the Supreme Court has attempted to extend the limitation in all legal proceedings under general or special law, and this is stated to be irrespective of the period prescribed under these laws and without regard to the same being condonable. However, in context of the aforesaid decisions, particularly in Supreme Court Bar Assn. and beyond, it may be noted that various special statutes provide for filing of pleadings or initiation of proceedings within specified periods of limitation, and not beyond.

Illustratively, the provisions of Section 16 of the Commercial Courts Act, 2015 read with the amendments to Orders V and VIII of the Code of Civil Procedure, 1908 (forfeiture of right to file written statement in a commercial suit if not filed within one hundred and twenty days from service of the writ of summons) and Sections 61 of the Insolvency and Bankruptcy Code, 2016 (filing of first appeal before the National Company Law Appellate Tribunal within thirty days, condonable up to a period not exceeding fifteen days) can be referred. In context of both these provisions, it has been held by the Supreme Court (here and here, respectively) that there is no power to condone further delay. Even under the general law, viz., the Limitation Act, 1963, delay in institution of a suit or original proceeding cannot be extended under Section 5 of the Act, which applies only to appeals and applications.

Thus, in passing the Order, the Supreme Court has attempted to derogate from express statutory provisions by taking shelter of Article 142 of the Constitution – which has been held, as above, to be impermissible as being beyond the confines of Article 142. In fact, in context of special statutes and time period for filing of appeals, the Order is contrary to another three judge bench decision of the Supreme Court in ONGC v. Gujarat Energy Transmission Corpn. Ltd.(2017), where the Court followed Supreme Court Bar Assn. and concluded with reference to Section 125 of the Electricity Act, 2003 and Article 142 that,

“… when there is a statutory command by the legislation as regards limitation and there is the postulate that delay can be condoned for a further period not exceeding sixty days, needless to say, it is based on certain underlined, fundamental, general issues of public policy as has been held in Union Carbide Corpn. case … the prescription of limitation in a case of present nature, when the statute commands that this Court may condone the further delay not beyond 60 days, it would come within the ambit and sweep of the provisions and policy of legislation. It is equivalent to Section 3 of the Limitation Act. Therefore, it is uncondonable and it cannot be condoned taking recourse to Article 142 of the Constitution.”

Prescription of specified, non-condonable periods of limitation has thus been held to be a public policy consideration on part of the legislature. And in doing ‘complete justice’ under Article 142, the Court will have to take note of express prohibitions, deemed to be based on public policy, in filing pleadings belatedly or condoning delay, and accordingly exercise its power and discretion.

Moreover, it has been held in Nidhi Kaim v. State of M.P. (2017) by another three judge bench of the Supreme Court, after expressing its “unequivocal concurrence” with the judgement in Supreme Court Bar Assn., that the power to do ‘complete justice’ under Article 142 of the Constitute does not include the power to disregard statutory provisions, or declared pronouncements of law under Article 141 of the Constitution, and that this applies “even in exceptional circumstances.”

Keeping in mind these decisions, the validity of the Order is cast in doubt, and the final order to be passed in the petition must deal with these questions. It may be appropriate to finally resolve the inconsistency between Union Carbide and Supreme Court Bar Assn., surrounding the true nature and purport of Article 142, by referring the matter to a larger bench.

Additionally, one possible argument in aid of the Order being valid, without seeking to expand the scope of Article 142 (which has rightly been confined to an exercise of power supplementary to extant statutory provisions) would be that the situation prevalent during the coronavirus pandemic could not have been envisaged by the legislature when framing policies as to stringent limitation periods.

It can therefore be suggested that the Order as passed amounts to reading down of statutory requirements and is not in contravention of statute or public policy, as a contrary construction which suggests that litigants should be compelled to adhere to limitation periods and file pleadings during the coronavirus pandemic would render the statute arbitrary and unreasonable. Although Nidhi Kaim follows Supreme Court Bar Assn., the below observations therefrom can be gainfully referred to support this view:

“Legislation, always flows from reason and logic. Debates and deliberations in Parliament, leading to a valid legislation, represent the will of the majority. … Any legislation which does not satisfy the above parameters would per se be arbitrary, and would be open to being declared as constitutionally invalid. In such a situation, the legislation itself would be struck down. It is difficult to visualise a situation wherein a valid legislation would render injustice to the parties, or would lead to a situation of incomplete justice — for one or the other party.” (emphasis added)

Another aspect which is debatable is the propriety of initiating suo moto proceedings essentially for the purpose of extending limitation, when Article 142 states that the Supreme Court may pass orders in “any cause or matter pending before it”. The vesting of jurisdiction to pass orders in a “cause or matter pending before” the Supreme Court is completely sidestepped if suo moto proceedings are taken to be within contemplation of this phase.

Conclusion

The situation resulting from the coronavirus pandemic is indeed unprecedented. Most courts and tribunals across the country continue to remain closed for physical conduction of business, or have adopted diminished modes of functioning. The Order passed by the Supreme Court extending limitation is well-intended, but significant questions surrounding its validity and the bounds of Article 142 remain to be answered. In finally deciding the suo moto petition, the Supreme Court must be mindful of the words of Farewell, L.J. in Latham v. Richard Johnson & Nephew Ltd. [(1911-13) All E.R. 117], as adopted in context of Article 142 itself in Teri Oat Estates (P) Ltd. v. UT, Chandigarh, viz., “Sentiment is a dangerous will o’ the wisp to take as a guide in the search for legal principles.”

Undoubtedly, acts of legislature or appropriate ordinances (at the central and the state level) can achieve the self-same outcome as the Order without any of the hurdles outlined above. Illustratively, a brief enactment can be envisaged, providing for extension of limitation with reference to special laws, which laws can be listed in a schedule to the enactment. However, this will have to be done proactively so as to obviate the immediate difficulties of litigants.


[The author thanks Mihir Naniwadekar for his comments on a draft version of this post.]

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