Supreme Court of India· 17 August 2026

When may this Court exercise its power under Article 142 of the Constitution of India where each State and High Court already has a process in place?

UNION OF INDIA v. CHIDIEBERE KINGSLEY NAWCHARA & ORS

2026 INSC 870 · SLP (Crl) No. 14185 of 2025
Coram: Sanjay Karol; Augustine George Masih

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Answer

Sparing use is the governing principle, because legislating is not within the Court’s domain in view of the separation of powers, which is a recognised feature of the basic structure of the Indian Constitution; the power is best used in emergent situations or positions of true vacuum. It is nonetheless within the judicial domain to step in when the need arises: despite processes being in place, the general processes of surety verification may not by itself be sufficient in cases involving foreign offenders, and in view of lack of uniformity across jurisdictions the exercise of power under Article 142 is appropriate and justified as a stop-gap arrangement, leaving it open for the legislative wing of the Government to step in.

Headnote

Narcotic Drugs and Psychotropic Substances Act, 1985 — s.37 — s.31A — Constitution of India — Art.21 — Art.142 — Bail — Foreign nationals — Sureties — Cancellation of bail — Directions — Narcotic Drugs and Psychotropic Substances Act, 1985 — s.37 — Grant of bail — Twin conditions cumulative — Held: Bail under the NDPS Act cannot rest on absence of recovery alone; the Court must record reasonable grounds for believing that he is not guilty and address the possibility of his again committing such a crime — both conditions, not either of them. (¶14) Narcotic Drugs and Psychotropic Substances Act, 1985 — Cancellation of bail — Accused jumping bail on fake sureties — Held further: Where the accused jumped the bail and the sureties furnished on his behalf are found to be fake, the appeal is no longer a petition against a grant of bail but a proceeding for cancellation of bail. (¶17) Constitution of India — Art.21 — Bail to foreign nationals — Special conditions permissible — Held further: Foreign nationals are entitled to protection under Article 21, and merely because an accused is a foreigner the right to bail cannot be circumscribed. Special conditions are permissible, but must be reasonable, proportionate and capable of compliance. (¶13) Constitution of India — Art.142 — Stop-gap directions — Verification of sureties for foreign nationals — Held further: In view of lack of uniformity across jurisdictions, Article 142 may be exercised to put in place stop-gap arrangements governing sureties for foreign national accused, leaving it open for the legislative wing of the Government to step in. Appeal disposed of. (¶27, 29)

In the Court's own words

Paragraph 26In considering the above said submission, this Court must properly appreciate the majesty of the power contained under Article 142, recognising alongside the vastness of this power, that its use is best made in emergent situations or positions of true vacuum. The words of a Constitution Bench of this Court in Supreme Court Bar Assn. v. Union of India[^80], best explain the power, as under:

Paragraph 27All of the instances above make it abundantly clear that this Court has on various occasions exercised this power and done so across different areas of law and also in cases across jurisdictions. Throughout, it has been clear that this Court is putting in place stop-gap arrangements, leaving it open for the legislative wing of the Government to step in as and when it deems fit. It could be argued that in the present case the justification for invocation of Article 142 is difficult for the reason that each State/High Court does have a process in place. So, is there indeed a gap in which this power could be exercised? While we acknowledge that such a view is possible, we are also aware that despite these processes being in place, cases such as the present one have arisen, giving rise to unfortunate circumstances where the accused has fled. Now, although, in this case the contraband substance was seized and the demonstrated ill effects thereof could not be spread into society, the conspiracy of which the accused was a part may still be at large. It is equally possible that in another case the contraband substance could be released in the society causing unrecognisable levels of havoc and the same may continue, if the perpetrators are not brought to the book. That apart, it also appears to us quite plainly, that in cases involving foreign offenders, the general processes of surety verification may not, by itself, be sufficient. After all, at the cost of repetition it be stated that sureties are the very people who are responsible for ensuring that the accused is available to the investigative/judicial authorities as and when required, and if these people themselves turn out to be fake, false or non-existent, the process in place is rendered entirely ineffective, putting an irreparable loss to the security and shaking the confidence in the justice delivery system. Still further, as we have already noticed above, this issue has engaged the attention of at least two High Courts, as also this Court, even though, in the latter situation, no constructive output could be elicited. In these circumstances, and in view of lack of uniformity across jurisdictions, we are of the view that the exercise of power under Article 142 would be appropriate and justified.

Acts & Sections

s.37 Narcotic Drugs and Psychotropic Substances Act, 1985s.31A Narcotic Drugs and Psychotropic Substances Act, 1985s.8(c) Narcotic Drugs and Psychotropic Substances Act, 1985s.21(c) Narcotic Drugs and Psychotropic Substances Act, 1985s.27A Narcotic Drugs and Psychotropic Substances Act, 1985s.34 Narcotic Drugs and Psychotropic Substances Act, 1985s.67 Narcotic Drugs and Psychotropic Substances Act, 1985Art.142 Constitution of IndiaArt.21 Constitution of IndiaArt.19(1)(d) Constitution of IndiaArt.32 Constitution of Indias.436A Code of Criminal Procedure, 1973s.441A Code of Criminal Procedure, 1973s.446 Code of Criminal Procedure, 1973s.479 Bharatiya Nagarik Suraksha Sanhita, 2023s.129 Bharatiya Nagarik Suraksha Sanhita, 2023s.491 Bharatiya Nagarik Suraksha Sanhita, 2023s.45 Prevention of Money Laundering Act, 2002s.24 Prevention of Money Laundering Act, 2002s.43D Unlawful Activities Prevention Act, 1967s.10(3)(e) Passports Act, 1967s.4 Legal Services Authorities Act, 1987Aadhaar Authentication for Good Governance Rules, 2020

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Also decided in this judgment

Under the Narcotic Drugs and Psychotropic Substances Act, 1985, must both conditions in Section 37 be satisfied before bail is granted, or does either suffice?Can the right to bail be circumscribed merely because the accused is a foreigner?Does an appeal against grant of bail become a proceeding for cancellation of bail where the accused has jumped the bail and the sureties are found to be fake?

Plain-language answer prepared by the LexStreak Editorial Desk — verify against the judgment. Source: Supreme Court of India. Corrections