The "liberals" have welcomed the Supreme Court order of April 19, 2017, directing "revival" of conspiracy charges against LK Advani, Murli Manohar Joshi, Uma Bharati et al, and imposing a timeline of two years for the Lucknow district court to decide on the same, along with pending criminal cases on the Babri Masjid demolition of 1992.

During culmination of proceedings, senior advocate KK Venugopal - doyen of the bar - remarked “Your lordships’ use of Article 142 should be in accordance with law and due process of law as guaranteed in Article 21. Your recent order on the highway liquor ban has rendered lakhs jobless”.

He was reacting strongly to the proposal by a Bench of Justices PC Ghose and Rohinton Nariman to employ its extraordinary powers under Article 142 of the Constitution to order a joint trial of the two Babri Masjid demolition cases pending for the past 25 years.

“Excuse me for putting it bluntly, but Article 142 is not a source of unlimited power for you to go so far ahead. There should be self-restraint,” he submitted. It is this very Article 142 that the top court has tucked into for its pronouncement.

Time to stop and stare at what this "plenary" power enjoyed by the Supreme Court is and what our forefathers thought of this provision when they put it there in the first place - during the Constituent Assembly debates.

It is a given that the apex court is the "most powerful institution of its kind" (late Antonin Scalia of the Supreme Court of the United States). But does even this most powerful institution have a limit on its remit? Yes, it does.

The Supreme Court is perceived as infallible - but only because it is last. Who then is to tell them like it is? Venugopal has made a start, and let’s see why there is a lot more to what he said than meets the eye of the ordinary Indian.

For a start - there is pregnant silence in the Constituent Assembly debates in 1949 on the power of the Supreme Court to "do complete justice". The Constituent Assembly debates are always referred to as to understand the contours of the power vested in a court under any Article.

The exchange involving Pandit Thakurdas Bhargava (A Gujarati lawyer of influence who got the "cow ban" introduced as a Directive Principle) and Alladi Krishnaswami Aiyar, while debating on the contours of "complete justice", referred to the power enjoyed by the Privy Council - under British Dominion - ought to be enjoyed by the Supreme Court also in our Republic.

Responding, Alladi said, "... If only we realise the plenitude of the jurisdiction if only, as I have no doubt, the Supreme Court is able to develop its own jurisprudence according to its own light, suited to the conditions of the country, there is nothing preventing the Supreme Court from developing its own jurisprudence in such a way that it could do complete justice in every kind of cause or matter.”

Other than this brief exchange, it is revealing that the debates in the Constituent Assembly are totally silent as to the powers vested in the Supreme Court to do "complete justice". Interestingly, intervening in this brief exchange, Babasaheb Ambedkar observed that the principle to vest the top court with such extraordinary powers was a "procedural" necessity, much like the powers of a civil court under civil procedure code - when they were handicapped by the absence of any specific provision to tide over a difficulty.

A careful reading of this exchange - nuanced in legal theorising - the answer would be evident that the power to do "complete justice" was bestowed on the Supreme Court not as a "substantive" power but as a "procedural" staircase to clean ticklish cobwebs.

This historical and constitutional foundation appears to have been long forgotten and that is what the legendary Venugopal was constrained to comment on. He could not have put it more bluntly with his age, experience and authority. What of us ordinary mortals? Would we be heard at all, leave alone listened to?

More importantly, what has the Supreme Court itself said on the amplitude to do "complete justice" or its limiting remit over the years?

In Prem Chand Garg (1962), the top court was alive to the "limits" on its constitutional power to do "complete justice", as not contemplating doing justice to one party by ignoring mandatory statutory provisions and thereby doing complete injustice to the other party by depriving such party of the benefit of the mandatory statutory provisions.

This view, followed in Naresh Shridhar (1966) and AR Antulay (1988), was given a forced burial after the Delhi Judicial Service Association case (1991) leading to the Union Carbide (1991) verdict: "This court's power under Article 142 (1) to do 'complete justice' is entirely of a different level and of a different quality. Any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of this court - (when Union of India ‘foisted’ a settlement on Bhopal Gas tragedy victims as constituting ‘complete justice’)."

But then, in VC Mishra, Bar Council of India chairman’s contempt case (1995), the initial bravado of the Supreme Court to strip him of his attorney licence gave way to "reasoned realisation that such power to do complete justice was after all not untrammelled" in the Supreme Court Bar Association case (1998) .

The apex court sounded a cautionary note to itself, which alas in subsequent decisions they have chosen to disregard with impunity. The earlier self-imposed "limit to the remit" embargo has been consigned to the dustbin of constitutional history and today it is Article 142 that gives the Supreme Court its "aura of invincibility" against all comers. Our forefathers may be wriggling in their graves as to what has come of their debates.

Yes, there may be no two opinions that the demolition of the Babri Masjid in 1992 was a dastardly attack on religious sentiments. If there was a "criminal conspiracy" to pull down the structure, then the conspirators may deserve to be in the dock. But then, law is not all ends.

Can "complete justice" be seen to be done "in spite of law"? What was the message the Supreme Court was sending? Overreaching judicial overreach even if the "intent" be commendable, if foul of law, deserves to be flagged off - which is the duty of men of the calibre of Venugopal.

The issue is not whether Advani & Co deserved to be hauled up before law but whether law can be trampled with, in doing so? If Advani & Co had been "discharged" in accordance with law, do they not deserve to face the music of law by grammatically correct anthems and not jarring ones?

It is true that in ESP Rajaram (2001), Anjana Kishore (2002), Aditi Vivek Kumar Wadhera (2016), Nikhil Kumar (2016), Asha Ranjan (2017) et al - the Supreme Court has trashed all "limits to the remit" to do "complete justice" and therefore had a free run on this occasion too. But is it legal? All for a good cause? Should ends justify the means?

In Gian Singh in 2010, Markandey Katju J referred the issue on amplitude of power of Supreme Court to do "complete justice to a larger bench" - which remains unanswered till date. Be it the order of the Supreme Court on March 31, 2017 - clarifying that the ban on liquor vending on highways would include "bars/restaurants" too or the April 19, 2017, order to revive the conspiracy charge against Advani & Co – to do "complete justice", it seems like a case of "complete injustice" to the Constitution that Alladi and Bhargava debated on.

The Supreme Court may be entitled to "take law into its own hands", but only such "law" as it is, and not as it imagines it to be.

Also read: Who gave Babri Masjid the push, brick by brick, on December 6, 1992