HIGH COURT BAR ASSOCIATION ALLAHABAD V. THE STATE OF UTTAR PRADESH
In the case of Asian Resurfacing of Road Agency v. Central Bureau of Investigation (2018 INSC 282) (“Asian Resurfacing”) a Three Judge Bench of the Supreme Court of India was deciding whether an order of framing charges under the Prevention of Corruption Act, 1988 is interlocutory in nature and can be challenged before the High Court. In deciding this issue, the Court in Asian Resurfacing directed that when a High Court stays proceedings after deciding to hear a challenge to an order framing charges, the challenge must be decided on a day-to-today basis to avoid undue delay.
Further, the Court in Asian Resurfacing directed that in all pending cases before the High Courts, where a stay in a civil or criminal trial is operating, the case must be decided within a maximum period of six months. Failure to adhere to this timeframe would result in the automatic expiration of the stay, unless a reasoned order for extending the stay is passed. Absent such an order extending the stay, the Trial Court may resume proceedings without further notice.
On 1 December 2023, another three judge bench comprising Chief Justice Chandrachud, Justice Pardiwala and Justice Misra expressed doubts regarding the correctness of the broad formulations in Asian Resurfacing and referred the matter to a Constitution Bench (five judges) for reconsideration.
The Constitution Bench unanimously held that an automatic expiration of interim orders after a period of six months is impermissible. Further, the Court held that issuing blanket directions that the High Courts should hear all cases where interim stays are operating on a daily basis and decide them within a stipulated time frame was beyond the powers of the Supreme Court’s jurisdiction under Article 142 of the Constitution to do complete justice. The judgment of the Court was authored by Justice Oka, while Justice Mithal wrote a separate concurring opinion.
An interim order cannot come to an end automatically
The Supreme Court held that the principles of natural justice require that an order rescinding or modifying interim relief should only be passed after hearing the affected parties. The directions issued in Asian Resurfacing regarding the automatic expiration of interim stay orders passed by all High Courts does not take into account the merits of individual cases. There are many reasons why a High Court may be unable to hear a case at a particular time. If, without any application of mind, an interim order automatically expires and the litigant is not responsible for the delay, the litigant would suffer for no fault of their own and this would violate the basic tenets of justice (¶16, ¶4 J. Mithal).
Justice Mithal in his separate concurring opinion found that the stay order granted in any proceeding would not automatically expire after a certain period, unless the opposite side files an application for setting it aside. Further, a stay order once passed cannot be rescinded or varied unless a reasoned order is passed by the Court following the principles of natural justice (¶¶5,7 J. Mithal).
Scope of exercise of powers under Article 142 of the Constitution
The Supreme Court clarified that the directions issued in Asian Resurfacing were issued under Article 142 of the Constitution, a power which can be exercised only in extraordinary situations for doing complete justice between the parties before the Court. However, the question regarding the duration of the interim orders in various other proceedings apart from proceedings under the Prevention of Corruption Act, 1988 did not specifically arise for consideration before the Court in Asian Resurfacing (¶19).
Furthermore, the Supreme Court laid down the following guidelines for the exercise of its powers under Article 142 of the Constitution: (i) It cannot be exercised to nullify the benefits derived by a large number of litigants based on judicial orders validly passed in their favour; (ii) The Court cannot ignore the substantive rights of the litigants; (iii) The Court can issue directions to the Courts for streamlining procedural issues, however, the Court cannot affect the substantive rights of those litigants who are not parties to the case before it. The right to be heard before an adverse order is passed is a substantive right; and (iv) It must not defeat the principles of natural justice (¶22).
Blanket directions cannot be issued to limit the jurisdiction of High Court
The Supreme Court held that a High Court, being a constitutional court, is not judicially subordinate to the Supreme Court (¶23). It emphasized that the High Court's authority under Article 227 of the Constitution to have judicial superintendence over all the courts within its jurisdiction includes the power to stay proceedings in such courts (¶24). The Supreme Court further stated that imposing restrictions on the High Court's power to grant interim relief, such as limiting interim stay orders to six months, would impermissibly encroach on the High Court's powers under Article 226 (¶24).
Directions to decide pending cases in a time-bound manner should be issued only in exceptional circumstances
The Supreme Court emphasized that directions leading to the automatic expiration of stay orders and the day-to-day hearing of cases amounted to judicial legislation, which is impermissible. Only the legislature can provide that cases of a particular category should be decided within a specific time (¶28). The High Courts cannot be directed only to prioritize cases where stay orders are operating on a day-to-day basis. There may be other cases like criminal appeals or bail applications, which may require more attention (¶30). Each court has its own pattern of pendency and disposal and therefore, the concerned courts are best placed to decide the issue of what cases to prioritise. Thus, orders which set strict deadlines for disposing of a case should only be passed in exceptional circumstances (¶32).
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