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2020 ] ASSTT. COMMR. (CT), LTU v. GLAXO SMITH KLINE CONSUMER HEALTH CARE 319
the Constitution, so that complete justice can be done. This argument has been
considered and plainly rejected in the following words : -
“12. In A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, while explicating and
elaborating the principles under Article 142, Sabyasachi Mukharji, J. (as his
Lordship then was) opined thus: (SCC p. 656, para 50)
“50. ... The fact that the rule was discretionary did not alter the posi-
tion. Though Article 142(1) empowers the Supreme Court to pass any
order to do complete justice between the parties, the Court cannot
make an order inconsistent with the fundamental rights guaranteed
by Part III of the Constitution. No question of inconsistency between
Article 142(1) and Article 32 arose. Gajendragadkar, J., speaking
[Prem Chand Garg v. Excise Commr., AIR 1963 SC 996] for the majority
of the Judges of this Court said that Article 142(1) did not confer any
power on this Court to contravene the provisions of Article 32 of the
Constitution. Nor did Article 145 confer power upon this Court to
make rules, empowering it to contravene the provisions of the fun-
damental right. At AIR pp. 1002-03, para 12 : SCR p. 899 of the Re-
port, Gajendragadkar, J., reiterated that the powers of this Court are
no doubt very wide and they are intended and “will always be exer-
cised in the interests of justice”. But that is not to say that an order
can be made by this Court which is inconsistent with the fundamental
rights guaranteed by Part III of the Constitution. It was emphasised
that an order which this Court could make in order to do complete justice be-
tween 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. The Court therefore,
held that it was not possible to hold that Article 142(1) conferred up-
on this Court powers which could contravene the provisions of Arti-
cle 32.”
(emphasis in original)
13. The said decision has been clarified by a Constitution Bench in Union
Carbide Corpn. v. Union of India, (1991) 4 SCC 584, wherein M.N. Venkata-
chaliah, J. (as his Lordship then was) speaking for the majority, ruled that :
(SCC pp. 634-35, para 83)
“83. It is necessary to set at rest certain misconceptions in the argu-
ments touching the scope of the powers of this Court under Article
142(1) of the Constitution. These issues are matters of serious public
importance. The proposition that a provision in any ordinary law ir-
respective of the importance of the public policy on which it is found-
ed, operates to limit the powers of the Apex Court under Article
142(1) is unsound and erroneous. In both Prem Chand Garg v. Excise
Commr., AIR 1963 SC 996, as well as A.R. Antulay v. R.S. Nayak, (1988)
2 SCC 602, cases the point was one of violation of constitutional pro-
visions and constitutional rights. The observations as to the effect of
inconsistency with statutory provisions were really unnecessary in
those cases as the decisions in the ultimate analysis turned on the
breach of constitutional rights. We agree with Shri Nariman that the
power of the Court under Article 142 insofar as quashing of criminal
proceedings are concerned is not exhausted by Section 320 or 321 or
482 CrPC or all of them put together. 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,
GST LAW TIMES  21st May 2020  73