SC reserves judgement on plea for reconsideration of 2018 verdict on grant of stay by courts

New Delhi, Dec 13 (PTI) Observing that the vacation of a stay order is a judicial act, the Supreme Court on Wednesday reserved its verdict on a plea for reconsideration of its 2018 judgement which held the stay granted by a lower court or high court in civil and criminal cases will automatically expire after six months unless extended specifically.
A five-judge constitution bench headed by Chief Justice D Y Chandrachud heard senior advocate Rakesh Dwivedi, appearing for the High Court Bar Association of Allahabad, Solicitor General Tushar Mehta, and other lawyers on the issue before reserving the judgement.
Besides the CJI, Justices A S Oka, JB Pardiwala, Pankaj Mithal and Manoj Misra are part of the bench.
“There are two problems. One, the automatic vacation of stay prejudices the litigant irrespective of the conduct of that litigant. Because there are circumstances over which a litigant has no control.
“Second, the vacation of an order of stay is also a judicial act. It is not an administrative act. So by directing that the stay will stand vacated without application of mind a judicial order is enforced as a result of which the stay is effected without application of mind,” the bench said.
Senior advocate Dwivedi said the mechanism of automatic vacation of stay could interfere with the power of the high courts under Article 226 of the Constitution and may be seen as judicial legislation. He said the autonomy of high courts needed to be upheld.
Article 226 of the Constitution gives wide powers to high courts under which they can issue writs and orders to any person or government for enforcement of fundamental rights and for other purposes.
The solicitor general concurred with Dwivedi and said the judicial discretion of high courts cannot be curtailed by a “judicial mandamus or a continuing mandamus”.
Dwivedi proposed that separate benches be set up to consider extension of stay orders as there was a need to have a “nuanced approach to different types of cases”. Of course, there was delay in court proceedings, specifically in certain High Courts like Allahabad and the Patna High Courts, he said.
“That is also what weighed with the judges. Otherwise, stay just continues for decades, particularly in larger High Courts,” the CJI said.
Delays were not solely the result of individual actions but could also be attributed to systemic faults within the judicial process and this included overburdened judges who struggled to manage extensive caseloads, leading to challenges in providing timely resolution, the senior lawyer said.
The solicitor general referred to instances where contempt cases were filed against judges for not resuming trials, particularly in states like Punjab and Haryana.
Dwivedi highlighted the significance of Article 226 as a fundamental aspect of the constitutional framework. Automatic vacation of a stay order meant that there was no application of mind by the judiciary and it resulted in interference with the process of judicial review, he said. “It can neither be shut out not whittled down either by constitutional amendment or by legislation and ought not to be whittled down or shut out in exercise of powers under Articles 141 and 142,” he said. The High Court enjoyed a high constitutional status and is not subordinate to the Supreme Court, Dwivedi said.
The top court had on December 1 this year referred to a five-judge bench the reference for reconsideration of its 2018 judgement.
The judgement said the stay granted by a lower court or high court in civil and criminal cases will automatically expire after six months unless extended specifically.
The constitution bench sought assistance of either the attorney general or solicitor general to deal with the legal issue arising out of the previous judgement.
A three-judge bench had in its 2018 verdict in the case of Asian Resurfacing of Road Agency P Ltd Director Vs CBI held that the interim order of stay granted by courts, including high courts, will stand vacated automatically unless they are specifically extended. Consequently, no trial or proceedings can remain stayed after six months.
However, the top court had later clarified that the judgement will not be applicable if the stay order has been passed by it.
The CJI-led bench prima facie agreed with the submissions of Dwivedi and said his petition will be referred to a five-judge bench as the impugned judgement was delivered by a three-judge bench of the top court.
Referring to the findings of the 2018 judgement, the bench said the directions indicated that in all matters, whether civil or criminal, orders of stay, once granted, should not continue beyond six months unless specifically extended.
“We have reservations in regard to the correctness of the broad formulation of the principles in the above terms. We are of the view that the principle which has been laid down in the above decision to the effect that a stay shall automatically stand vacated is liable to result in a miscarriage of justice,” the bench said.