The Constitution established the Supreme Court of India as the highest custodian of a person’s fundamental rights. But these wide powers are not free; they are bound by the essence of democracy. When one says that the Supreme Court is a “court of record”, it basically implies that its judgments carry a precedential value and can be saved as a record for perpetuity. This principle ties the hands of the Apex Court with the rope of public accountability. It prevents the courts from departing from what they establish as law, so that future courts can follow the same. It not only serves as a restraint on the evasive powers vested in its authority, but also enjoins trust and accountability in legal principles. But what if, someday, a highly celebratory judgment hides behind its pomp and show, an assault on these safeguards and fancies a centrist model of the apex judiciary giving an exception to ratio decidendi? 

In what can be called the extraordinary powers under Article 142, the Supreme Court can go to any extent to do “complete justice”. But in doing so, it can only supplement, not supplant, a pre-established statutory framework. The court has also affirmed the same in the case of “City Hounded by strays, Kids pay price”,In re^[i], where it was held that although the powers of Article 142 are expansive enough to transcend procedural lacunae, they are circumscribed by the obligation to remain consistent with statutory law and Constitutional provisions.

The question is not whether the Supreme Court can be a court of record, but whether it can choose not to be, in the name of doing complete justice. Can the Supreme Court gift itself a power that it doesn’t possess, say, to quash an FIR without scrutinizing its contents, and safely tag it as an extraordinary power to strike a settlement between the parties in a criminal case?

The Precedent of Exceptions

The earlier judgments were tilted more towards putting an embargo on the conception of sweeping powers granted under Article 142. In Prem Chand Garg^[ii], it was held that the powers under Article 142 are not only subject to fundamental rights but also to the statutory provisions. The SC cannot stretch its reach beyond these thresholds in its strife to deliver complete justice.

However, since Union Carbide^[iii], a Pandora’s box seems to have been opened. While departing from the boundary wall approach for the application of Article 142, and holding that “Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142”, the SC established a case to case approach for determining what special remedies can be granted by examining the special (or exceptional) circumstances of every case.

Since then, the court has devised a special antidote to the limitations of Article 142. It can be molded to the extent that only the SC retains for itself the power to dictate when and how an exception applies, excluding other institutions, by devising new criteria every time. Sometimes, even without caring to provide a rationale for exercising the same.  The new model is so boundless that it can turn the court’s functions from purely judicial to those of an arbitrator.

For instance, in 2024, while granting interim bail to Arvind Kejriwal, the SC followed the same exception precedent. It upheld the constitutionality of PMLA, while at the same time retained for itself the discretionary power to decide when, and for whom, it can make an exception. The SC also made an exception while granting deemed assent to a bill pending with the Governor of Tamil Nadu by exercising extraordinary powers under Article 142, at the cost of galloping beyond the barrier of separation of powers. The court crafted its own criteria or “public interest” to craft a one-time remedy, suited to the circumstances of the case.

The state of affairs went a step ahead in Shilpa Shailesh v. Varun Sreenivasan to hold that divorce can be granted on grounds of ‘irretrievable breakdown of marriage’ under Article 142 of the Constitution. In doing so, the SC may go beyond the bounds of procedural and substantive law to achieve the ‘ends of justice’^[iv], with a yardstick of “fundamental general and specific public policy”, which is in turn held by the SC itself.

Elephant in the Room: Judicial Hesitancy

The Constitution of India establishes a fine balance between the powers of High Courts and the SC. In the Constitutional scheme, the Supreme Court and the High Courts are Courts of record. The High Court is not a Court subordinate to the Supreme Court, except for the appellate power conferred on the latter. The nature of their hierarchy is such that the SC and HCs are both independent constitutional courts. High Courts are not “subordinate” to the Supreme Court in their daily functioning. However, the SC maintains hierarchical superiority purely in its appellate capacity and via Article 141.

The parlous precedent of exceptions does not create exceptions to the ease of reserving discretion to itself. Section 528 of BNSS (erstwhile Section 482 CrPC) reserves inherent powers to all High Courts to quash an FIR or a criminal complaint to prevent abuse of process or secure the ends of justice. But when the powers of the High Courts are cut off,^[v] and Article 142 is used to define what should be called an exception, it doesn’t carve out justice, but a self-serving dictat.

A fundamental problem with this polarization of powers is an inducement of judicial hesitation down the hierarchy. Such an act of high-headed judicial despotism could force High Courts and the lower courts not to entertain the pleas of discharge and quashing in a confused state of power vacuum and slightly out of fear of reprimands, thereby eroding one of the elements of basic structure doctrine, in principle, and the norms of judicial discipline, in practice. 

Complete Justice is not the Same as Exceptional Justice

Complete justice is not the one of spectacle, one that plays to the gallery, satisfies the emotional temperature of public opinion, and wins the Court applause on television even as it quietly hollows out the constitutional scheme it claims to serve. It is an equitable power to fill the lacunae that a rigid application of law would otherwise leave unfulfilled. It is a trowel to fill the cracks in the law, not a chisel to carve one out or a ladder to climb off the other side.

It is tempting to say that in the recent CJP protest judgment, the SC went a step further and bestowed upon itself extraordinary powers because of the urgency of the matter and to avoid procedural bottlenecks. But a wiser step could have been to address the starting point of the scrapped FIRs in the first place. Since India’s criminal law framework is skewed more toward the State, it can initiate criminal proceedings against any citizen without any cost or repercussions. A prudent course would have been to address these procedural lapses, rather than simply affecting a one-time settlement, leaving the faulty portions of the law intact for future misuse.

Article 142 is not a convenient backdoor to deliver a suitable remedy that is not already accessible through an established statutory framework. This is even more problematic when a citadel of rights is converted to a settlement forum, lacking teeth to even reprimand the state for unruly FIRs before quashing them en masse. “Complete justice” not only rests in giving tailored remedy to the parties before the court, but also in calling out the encroachment of the core values on which the Constitution stands. The citizens not only want justice but also want to see it being done. The letter “s” in “Supreme” stands for “Spine”, and it is precisely for this reason that Article 142 exists. 

^[i] “City Hounded by strays, Kids pay price”,In re, (2026) 7 SCC 196.(para 66)

^[ii] Prem Chand Garg v. Excise Commissioner, U. P., Allahabad, 1963 AIR 996.

^[iii] Union Carbide Corporation Etc. v. Union Of India Etc., 1992 AIR 248(para 18)

^[iv] Shilpa Shailesh v. Varun Sreenivasan, 2023 Insc 468 (para 9)

^[v] Daxaben v. The State Of Gujarat, 2022 INSC 770; State Of Haryana And Ors vs Ch. Bhajan Lal And Ors, 1992 AIR 604.