Asian Resurfacing: Supreme Court reserves verdict on whether stay orders can be automatically lifted after 6 months

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The Supreme Court on Wednesday reserved its judgment on the question of whether interim stay orders granted by courts in civil and criminal cases should operate only for six months unless specifically extended [High Court Bar Association Allahabad vs State of Uttar Pradesh and ors].

A bench of Chief Justice of India (CJI) DY Chandrachud with Justices Abhay S Oka, JB Pardiwala, Pankaj Mithal, and Manoj Misra reserved its verdict after a hearing that lasted under two hours.

Notably, none of the counsel present supported the automatic vacation of stay orders.

The question arose after Supreme Court recently referred its judgment in Asian Resurfacing Of Road Agency v. Central Bureau Of Investigation to a Constitution bench.

In the 2018 judgment, a three-judge bench of the top court had directed that all stay orders in criminal as well as civil proceedings would be valid only for six months unless specifically extended.

The Court expressed reservations about this finding earlier this month although it also acknowledged the drawbacks of prolonging stay orders.

The bench then requested Attorney General R Venkataramani or Solicitor General (SG) Tushar Mehta to assist it in the matter.

During the hearing today, CJI Chandrachud noted that the 2018 ruling came about because some High Courts would issue stay orders that would end up lasting for decades.

This was a severe problem in the larger High Courts, he added.

“Yes. Culprits would take advantage. With proceedings stayed, affidavit would not be filed. Trial takes forever,” Senior Advocate Rakesh Dwivedi replied.

“In Allahabad and other larger High Courts, the issue is real, but it is not always the judges’ fault. Ultimately, litigants suffer. But judges can no way complete 200-300 matters on their board every day,” CJI further noted.

The Court proceeded to muse on what course of action should be adopted when it comes to dealing with stay orders issued by High Courts under Section 482 of the Criminal Procedure Code in petitions filed for quashing of criminal cases.

Dwivedi argued that the automatic vacation of such stay orders was not the way out. The solution cannot be worse than the disease, the senior lawyer said.

The CJI also observed that as per the proviso to Article 226 (3) of the Constitution of India, applications to vacate stay orders are to be disposed of by High Courts in two weeks.

Dwivedi pointed out that this provision was part of the basic structure of the Constitution and cannot be whittled down even by the Supreme Court’s plenary powers.

Justice Oka, however, observed that the proviso would apply only when interim relief is granted without hearing the other side.

“So if there is notice issued or copy is served, this will not apply at all,” Justice Oka opined.

Dwivedi proceeded to argue that the 2018 decision was creating distrust in High Courts. This would add to the case pendency before the Supreme Court, which could be disastrous, he submitted.

“Let High Courts find solution to these cases. Power to grant interim order is inherent in powers of a High Court,” Dwivedi added.

Meanwhile, the CJI observed that the automatic vacation of stay orders may also adversely affect the litigant at times.

“Normally, when we vacate stay, we give reasons like the litigant abused the process of law etc. Automatic vacation of stay actually prejudices the litigant because it does away with adjudication and that is why many of us do not lay down timelines for the High Court to decide a case,” he explained.

Solicitor General Mehta then contended that a continuing judicial mandamus (from the Supreme Court) cannot be used to curtail the discretion of High Courts.

He further argued that the 2018 ruling in the Asian Resurfacing case ignored precedents that stated that nothing can be done behind the backs of litigants or in their absence.

Senior counsel Vijay Hansaria added that a court’s judicial discretion should not be automatically taken away, given that cases often do not reach for hearing or are adjourned.

“When we say notice returnable after 6 weeks, we see matters coming after 2 years. That is why we give dates,” the CJI replied as the hearing drew to a close.

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