The recent remarks by Vice President Dhankhar about Article 142 of the Indian Constitution have ignited a fierce nationwide debate about judicial powers and constitutional boundaries. His comments, specifically questioning the Supreme Court’s use of this provision in the Tamil Nadu case, have brought unprecedented attention to this constitutional tool.
The controversy highlights the complex relationship between India’s judiciary and executive branches. However, beyond the political rhetoric, this debate raises fundamental questions about the scope of judicial authority and its impact on democratic governance.
This comprehensive analysis examines the origins and applications of Article 142, the context of the Tamil Nadu case, and the broader implications for India’s constitutional democracy. We’ll explore why this provision matters, how it has been used historically, and what the current debate means for the future of judicial power in India.
Table of Contents
What is Article 142, and why does it matters?
At the heart of India’s judicial powers lies Article 142, a provision that grants extraordinary authority to the Supreme Court. Unlike many constitutional provisions with global parallels, Article 142 stands relatively unique in its scope and application.
Origin and purpose of Article 142
Article 142 entered India’s constitutional framework with minimal debate. Initially introduced as Article 118 in the Draft Constitution, it was adopted by the Constituent Assembly without significant discussion. This silence left the Supreme Court with considerable latitude to interpret its own powers.
The provision states: “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“. Fundamentally, it was designed to ensure the apex court could deliver justice beyond the limitations of existing laws.
During constituent assembly debates, Krishna Chandra Sharma compared the proposed powers to those of the Privy Council, noting that the Supreme Court should be “above law” in its ability to “pass any order which it considers just”. This revealing statement underscores the founders’ intent to create a powerful judiciary with broad remedial powers.
How it empowers the Supreme Court
Article 142 essentially transforms the Supreme Court from merely an interpreter of laws to an institution that can fill legislative gaps and create new legal remedies. This provision enables the court to:
- Transcend procedural technicalities that might otherwise obstruct justice
- Issue orders enforceable throughout India’s territory
- Develop new legal doctrines when necessary
- Address situations where existing laws prove inadequate
An empirical study by IIM Ahmedabad found that between 1950 and 2023, the Supreme Court mentioned Article 142 or the phrase “complete justice” in 1,579 cases, though it explicitly invoked these powers in only 791 instances [3]. Notably, the study revealed that most cases were civil matters, demonstrating the provision’s primary application area.
The scope of these powers has evolved considerably. Initially, in Prem Chand Garg (1962), the Court took a restrictive view, holding that orders under Article 142 must remain consistent with fundamental rights and substantive statutory laws [4]. However, by 1991, in the Delhi Judicial Service Association, the Court declared these powers were “entirely of a different level and of a different quality” from ordinary legal provisions.
Examples of past use before 2024
Prior to 2024, the Supreme Court wielded Article 142 in several landmark cases that shaped India’s legal landscape:
- Union Carbide Case (1991): The Court ordered Union Carbide to pay US$470 million in compensation to victims of the Bhopal gas tragedy, emphasising that statutory prohibitions couldn’t limit its constitutional powers.
- Vishaka Guidelines (1997): In the absence of legislation addressing sexual harassment at workplaces, the Court established binding guidelines until Parliament enacted proper laws.
- Liquor Ban (2017): The Court banned alcohol sales within 500 meters of national highways, extending even to state highways despite no similar notification by state governments.
- Irretrievable Breakdown of Marriage (2023): A five-judge bench recognised this as grounds for divorce under the Hindu Marriage Act, despite this ground not existing in personal laws.
The Court’s approach in these cases demonstrates both the flexibility and potential concerns surrounding Article 142. While some view these interventions as necessary to address legislative gaps, others see them as potential judicial overreach that blurs the separation of powers.
How Article 142 was used in the Tamil Nadu case
The constitutional standoff between Tamil Nadu’s government and its Governor culminated in a landmark judgment that fundamentally altered how state legislation becomes law. This unprecedented case showcased the Supreme Court’s willingness to exercise its extraordinary constitutional powers in the face of executive inaction.
Also Read – Historic Verdict by Supreme Court: Tamil Nadu Governor Must Clear Bills Within 30 Days
Background of the Tamil Nadu bills
Between January 2020 and April 2023, the Tamil Nadu Legislative Assembly passed several bills that remained pending with Governor R.N. Ravi, some for years. The most contentious bills sought to reduce the Governor’s traditional powers, particularly regarding university governance.
The oldest pending bill dated back to January 2020, enacted during the previous AIADMK government, which proposed renaming the Tamil Nadu Fisheries University after former Chief Minister J. Jayalalithaa. Most bills focused on amending state university laws, transferring the power to appoint Vice-Chancellors from the Governor (who serves as Chancellor) to the state government.
After the DMK government filed a petition in October 2023 alleging “inaction, omission, delay, and failure” by the Governor, the matter escalated. Following initial Supreme Court scrutiny, the Governor suddenly returned ten bills to the Assembly in November 2023. The legislature promptly reconvened in a special session, re-passed all bills without changes, and sent them back to the Governor [7].
Instead of granting assent as constitutionally expected after re-passage, Governor Ravi reserved all ten bills for presidential consideration in November 2023 [8]. Subsequently, the President rejected seven bills, approved one, and left two undecided.
Supreme Court’s April 8 judgment
On April 8, 2025, a division bench comprising Justices J.B. Pardiwala and R. Mahadevan delivered a judgment that fundamentally altered the legislative landscape. The Court declared the Governor’s actions of reserving bills for the President after they had been reconsidered and re-passed by the Assembly as “illegal and erroneous in law”.
Going further, the Court invoked Article 142 to declare that all ten bills “are deemed to have been assented to by the Governor on the date they were presented after being reconsidered” – essentially making them law retroactively from November 18, 2023 [9].
The judgment established specific timelines for gubernatorial action:
- One month for bills when acting on ministerial advice
- Three months when withholding assent contrary to cabinet advice
- One month maximum for bills re-passed after reconsideration
Accordingly, the Court established that there is no concept of “absolute veto” or “pocket veto” under the constitutional scheme. Additionally, the judgment clarified that governors must normally act on the aid and advice of the Council of Ministers in granting assent to bills [9].
Why the use of Article 142 was significant ?
This application of Article 142 created a constitutional first – laws that took effect without the formal assent of either the Governor or the President [11]. Following the ruling, Tamil Nadu issued a gazette notification on April 11, 2025, bringing these laws into effect without the traditional executive signature [12].
The Court justified this extraordinary measure by citing “the unduly long period of time for which these Bills were kept pending by the Governor before the ultimate declaration of withholding of assent and in view of the scant respect shown by the governor” to the Court’s previous decisions [9].
Importantly, the judgment even nullified actions the President had already taken on seven bills, declaring them void since they originated from an unconstitutional reservation [13]. As the Court explained, “any subsequent steps taken by the President, too, do not survive”.
Attorney General R. Venkataramani immediately expressed concerns, stating “On Article 142, there is going to be some issue on that. Permit me to come back to that“. Reports later indicated the Ministry of Home Affairs might file a review petition challenging aspects of the judgment [11].
This unprecedented exercise of Article 142 signaled the Court’s determination to address what it viewed as a constitutional impasse, effectively bypassing established executive gatekeeping functions in the legislative process.
VP Dhankhar’s remarks and the political fallout
Vice President Jagdeep Dhankhar’s strong criticism of the Supreme Court’s use of Article 142 of Indian Constitution ignited a political firestorm that quickly divided along party lines. His comments represented an unprecedented challenge to judicial authority from the country’s second-highest constitutional office.
What the Vice President said
In a controversial address to the Conference of Presiding Officers in April 2024, Dhankhar directly questioned the Supreme Court’s Tamil Nadu judgment. He described the Court’s use of Article 142 as “unthinkable” and an action that “shatters the very essence” of constitutional separation of powers.
“Can the Honorable Supreme Court, through Article 142, create law? Can the Honourable Supreme Court say that laws deemed to have been assented to by the Governor?” Dhankhar asked rhetorically. He further stated that the judgment “eclipsed” the role of both Governor and President, calling it “constitutionally unprecedented.“
The Vice President’s remarks went beyond mere disagreement, suggesting a “concerning constitutional situation” where “democratic institutions are being compromised.” Throughout his address, Dhankhar repeatedly emphasised his view that Article 142 could not authorise the creation of laws without executive assent.
Reactions from opposition parties
Opposition leaders immediately condemned Dhankhar’s remarks as an attack on judicial independence. Congress President Mallikarjun Kharge called the comments “constitutionally improper” and accused Dhankhar of “undermining the judiciary at the government’s behest.”
Meanwhile, Tamil Nadu Chief Minister M.K. Stalin characterised the Vice President’s statements as “politically motivated interference” designed to protect gubernatorial powers. Other opposition figures, including senior advocates-turned-politicians, warned about an “institutional crisis” if constitutional officers openly challenged Supreme Court judgments.
Several parties jointly issued a statement expressing “grave concern” over what they termed “executive overreach” and demanded that the Vice President withdraw his remarks.
BJP’s Defense of the VP
The ruling BJP firmly backed Dhankhar, with Law Minister Arjun Ram Meghwal asserting the Vice President had merely highlighted “legitimate constitutional concerns.” Senior party spokesperson Ravi Shankar Prasad defended Dhankhar’s right to express views on constitutional matters, given his background as a former Supreme Court lawyer.
Government sources also circulated a legal note arguing that Article 142 must be read in conjunction with Article 145(3), suggesting the Tamil Nadu judgment should have been decided by a larger constitutional bench. Furthermore, several constitutional experts aligned with the government’s view appeared on television debates supporting the VP’s position.
At this point, the controversy transformed into a larger debate about judicial boundaries and constitutional interpretation, extending far beyond the specific Tamil Nadu case.
Judicial overreach or necessary justice?
The constitutional debate around Article 142 of Indian Constitution has revealed deep divisions between those who see it as essential for justice and others who consider it a dangerous expansion of judicial power.
What critics say about judicial overreach
Critics, including constitutional experts and government officials, have raised serious concerns about the Supreme Court’s expanding powers. Vice President Dhankhar characterised Article 142 as a “nuclear missile against democratic forces” available to judges “24×7” [14]. This metaphor underscores fears that judges are assuming legislative and executive functions without proper accountability.
Many opponents point to the Tamil Nadu case as a textbook example of overreach. By directly enacting bills without gubernatorial consent, the Court effectively took over executive functions. Legal scholars argue this contradicts the basic structure doctrine by disturbing the delicate balance between constitutional institutions [1].
Moreover, critics have questioned procedural propriety. As the Vice President noted, the Tamil Nadu judgment was rendered by a two-judge bench despite Article 145(3) requiring at least five judges to decide substantial constitutional questions [14].
Supporters’ view: filling constitutional silence
Conversely, supporters maintain the Court was merely addressing a “constitutional silence” regarding what happens when governors indefinitely delay assent. They argue that extraordinary judicial action becomes necessary when constitutional deadlocks threaten governance.
Senior advocates like K.K. Venugopal defended the judgment as a necessary clarification of Article 201 [8]. Others praised the Court for establishing clear responsibilities for constitutional functionaries where none existed before.
In cases where legislation is absent or inadequate, supporters contend the Court must step in to protect constitutional values. This “doctrine of constitutional silence” recognises the impossibility of addressing every potential scenario in the Constitution’s text.
The role of Article 145(3) and separation of powers
The tension between judicial power and democratic governance ultimately centres on the separation of powers. The Supreme Court itself acknowledged in the Supreme Court Bar Association that Article 142 should not “supplant” existing substantive law [1].
Nevertheless, the Court has consistently held that no statutory limitations can restrict its constitutional power under Article 142. This creates an accountability paradox: unlike the executive and legislature, the judiciary cannot be easily held accountable for its decisions.
What does this mean for India’s democracy
The controversy surrounding Article 142 of the Indian Constitution represents a watershed moment in India’s constitutional journey, testing the boundaries between judicial activism and democratic processes.
Impact on federal structure and executive authority
The expanding judicial footprint through Article 142 fundamentally reshapes India’s federal architecture. When courts directly dictate laws without executive participation, they effectively create a new power dynamic that sidesteps elected officials. This judicial assertion has gradually expanded from rare interventions to more frequent governance matters, potentially weakening the principle of cooperative federalism.
States particularly worry about diminished autonomy when constitutional courts override gubernatorial decisions. The Tamil Nadu case illustrates this tension perfectly – rather than allowing political processes to resolve the standoff, judicial intervention created a precedent that may encourage future bypassing of executive gatekeepers.
Concerns about judicial accountability
Unlike elected branches, the judiciary faces minimal accountability mechanisms when exercising Article 142 powers. Justice J. Chelameswar has acknowledged this paradox, noting “judges are neither elected nor answerable to the electorate,” yet wield extraordinary authority to make law-like pronouncements.
Constitutional experts highlight that Article 142 judgments lack traditional checks and balances. Without specific legislative oversight or executive concurrence, courts independently determine when “complete justice” requires intervention. This raises legitimate questions about democratic representation in judicial decision-making.
Possible reforms or clarifications ahead
Given the current tensions, several potential paths forward exist. Parliament could theoretically clarify Article 142’s boundaries through legislation, though previous attempts faced resistance from the judiciary as encroaching on judicial independence.
Alternatively, the Supreme Court itself might develop internal guidelines on Article 142’s use through a comprehensive constitutional bench ruling. Some experts suggest establishing a threshold test requiring demonstration of “exceptional circumstances” before invoking these extraordinary powers.
Ultimately, reconciling judicial independence with democratic accountability remains challenging. Any meaningful reform would require unusual cooperation between branches currently locked in institutional rivalry. In effect, India faces a constitutional moment that will determine whether Article 142 becomes a routine governance tool or remains an exceptional measure for extraordinary circumstances.
Conclusion
Article 142 stands at the crossroads of India’s constitutional democracy, sparking fundamental questions about judicial authority and democratic governance. Though designed as an extraordinary power to ensure complete justice, its expanding use – particularly in the Tamil Nadu case – has created unprecedented tensions between constitutional institutions.
Undoubtedly, the Supreme Court needs effective tools to address constitutional deadlocks and ensure justice. Nevertheless, concerns about judicial accountability and the impact on separation of powers deserve serious consideration. The Vice President’s “nuclear missile” analogy, while provocative, highlights legitimate worries about unchecked judicial authority.
Looking ahead, India must find balance between preserving judicial independence and maintaining democratic processes. The current debate offers an opportunity to establish clearer guidelines for Article 142’s application, ensuring it remains a tool for exceptional circumstances rather than routine governance. The resolution of this constitutional challenge will significantly shape the future of India’s democratic institutions and the delicate balance between judicial power and executive authority.
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