The Supreme Court of Pakistan’s power under Article 187 of the Constitution of Pakistan is unfettered and unbridled, however, the same is subject to clause (2) of Article 175. In matters which have been competently filed before the Supreme Court of Pakistan, the Court shall have the power to issue directions, orders or decrees as may be necessary to do complete justice without any limitations.
Subject to Article 175(2) / Jurisdiction-conferring provisions
The Supreme Court of Pakistan’s power under Article 187 are subject to clause (2) of Article 175, which unequivocally maintains that the courts shall exercise jurisdiction as is or may be conferred by the Constitution or by or under any law. This power under Article 187 does not envisage the conferment of an additional jurisdiction and the same is subject to the limitations set forth in the Constitution on the jurisdiction(s) of the Supreme Court.
It was maintained by Justice Mansoor Ali Shah in his concurring note that “ The bare reading of Article 187(1) shows that its provisions are subject to and controlled by Article 175(2) of the Constitution. […] and does not confer jurisdiction to take cognizance of any case or matter. […] . It leaves little doubt to find that no independent proceedings can be initiated under this Article [1].
Case or Matter Competently Filed
It was held by the then Chief Justice, Ajmal Mian that Article 187(1) is an enabling provision, which can be invoked in aid in a matter which is competently filed before this Court [2]. He wenton to hold that a court may adopt a procedure, which is not prohibited by any law if the dictates of justice so demand.
Principle of Separation of Powers
The power under Article 187 needs to be capriciously exercised so as to safeguard the foundational principle of separation of powers. Justice Tassaduq Hussain Jillani held that “This Court on account of general institutional dysfunction and to render “complete justice” has expanded the scope of judicial review in exercise of its powers under Articles 184(3) and 187 of the Constitution. But while doing so, it has also been conscious of the principle of separation of powers … .” [3]
Impact of the 26th Constitutional Amendment and the Proviso to Article 187(1)
The 26th Constitutional Amendment has introduced a significant limitation to the Court’s power under Article 187(1) by adding a proviso, which states that “no order shall be made under this clause which is contrary to any provision of the Constitution or of any law for the time being in force.” This marks a fundamental shift in how the “complete justice” clause is to be applied.
Where earlier jurisprudence permitted a broader, more discretionary use of Article 187(1), especially in matters involving electoral justice or constitutional interpretation, the proviso now imposes a constitutional and statutory ceiling on the Court’s authority. It reinforces the textual and structural boundaries of judicial power by making it explicitly clear that the Court cannot override the Constitution or existing law in the name of doing complete justice.
Similar Provision in the Constitution of India
A similar provision in the Indian Constitution is Article 142. The Supreme Court of India has interpreted Article 142 waveringly, and has gone as far as declaring that statutory law could place no restriction on its power to issue directions under Article 142, it held, “ No enactment made by Central or State Legislature can limit or restrict the power of this Court under Article 142 of the Constitution, though while exercising power under Article 142 of the Constitution, the Court must take into consideration the statutory provisions regulating the matter in dispute ” [4]. It further held that, “ This Court’s power under Article 142(1) to do “complete justice” is entirely of different level and of a different quality.”
While tending to the words “cause or matter” it has held that, “the words ‘cause or matter’ cover almost every kind of proceeding in court, whether civil or criminal, whether interlocutory or final, and whether before Or after judgment.” [5]
Application of Article 142 of the Indian Constitution
The Supreme Court of India has used the powers available to it under Article 142 to frame guidelines to be followed by the executive. It has at time made recourse to the legislature to fill in gaps by framing appropriate laws which affect fundamental rights. It has also constituted fact finding teams under the Article[6].
Conclusion
The Supreme Court of Pakistan while exercising powers under Article 187 has exercised judicial restraint, while in comparison, the Supreme Court of India is often criticized on the extent of powers that it exercises under Article 142. A judicious approach which caters to the overall scheme of the constitution should be adopted while exercising such powers, failure of which would inevitably result in the erosion of the authority of the apex court.
The proviso added through the 26th Constitutional Amendment restores equilibrium among the branches of the state by reaffirming the principle of legality and separation of powers, narrowing the space for judicial innovation or activism beyond express legal authority. Any interpretation or relief granted under Article 187(1) must now be grounded within the four corners of constitutional and statutory law, rather than evolving solely from the equitable instincts of the Court. But the question persists: will this amendment serve as a safeguard against judicial overreach or as a barrier to constitutional justice.
[1] Khalid Mehmood Vs. Chaklala Cantonment Board [2023 SCMR 1843], per Justice Mansoor Ali Shah, para 5.
[2] Hitachi Ltd Vs. Rupali Polyester [1998 SCMR 1618], per para 7
[3] Dossani Travels (Pvt). Ltd Vs. Messrs. Travels Shop (Pvt) Ltd [PLD 2014 SC 1], per para 36
[4] Delhi Judicial Service Association Vs. State Of Gujarat (1991) 4 SCC 406
[5] Union Carbide Corporation Etc. Vs. Union Of India [1992 AIR 248]
[6] The Oxford Handbook Of The Indian Constitution, edited by Sujit Choudhry, Madhav Khosla, And Pratap Bhanu Mehta