The Supreme Court notified, on December 13, 2023, a five-judge constitution bench, headed by the chief justice of India (CJI), Justice D.Y. Chandrachud, for reconsidering its 2018 judgment on the grant of stay orders by courts. The SC agreed to review its 2018 judgment on the expiry period of stay orders for expediting the trial proceedings. It admitted that automatic vacation of stay orders after six months could result in failure of justice in some cases. The apex court also indicated its apprehensions about the direction to limit the duration of stay orders to six months which would cause significant delays in the trial process.
Context
In March 2001, an FIR was filed with the Delhi Special Police Establishment (DSPE) against the Asian Resurfacing of Road Agency and certain officers of the Municipal Corporation of Delhi (MCD). This was for apparently causing wrongful loss to the MCD by using fake invoices of oil companies relating to transportation of Bitumen for use in dense carpeting work on roads in Delhi between 1997 and 1998.
A charge sheet was filed against Asian Resurfacing and certain officers of the MCD by the CBI before the CBI Special Judge, New Delhi in November 2002. Asian Resurfacing filed a discharge application with the CBI Special Judge, thereafter. However, in February 2007, the CBI Special Judge directed framing of the charges against the appellants holding that there was a prima facie case against the appellants. Therefore, the appellants filed Criminal Revision No. 321 of 2007 before the Delhi High Court against the order of framing charge. However, the Revision Petition was converted into a criminal Writ Petition No. 352 of 2010.
After hearing the case, the single judge of the Delhi High Court referred the case to the division bench of the SC as there were two conflicting opinions in the case and the controversy had to be resolved. The SC, after referring to various judgments, opined that the order of framing charge is not purely an interlocutory order or a final order. Hence, it could be interfered under Section 397 or 482 of the Code of criminal Procedure (CrPC) or Article 227 of the Constitution. The challenge to an order of charge should be entertained in the rarest of the rare case only for correcting a patent error of jurisdiction and not to re-appreciate the matter.
SC Division Bench Judgment
In its judgment, a three-judge Division Bench of the Supreme Court comprising Justices Adarsh Kumar Goel, Navin Sinha, and Rohinton Nariman held that in ordinary circumstances, a stay order should not exceed two to three months. They further held that a stay should not be unconditional or for an indefinite duration. The bench further stated that the high court must interfere only in exceptional circumstances and could grant stay in appropriate cases. When a stay is granted, the matter must be decided on a day-to-day basis. This would mean that the stay is not for a prolonged period. Though there is no mandatory fixation of time limit, the final decision is not expected to prolong for more than two to three months period normally. Even if the stay has to be prolonged, then the duration should not exceed six months. Beyond that, if there is a need for an extension of the stay, then it would be granted by a specific ‘speaking order’.
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A speaking order means an order speaking for itself. It is full of reasons and is considered as the third pillar of natural justice.
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All the pending matters before high courts or other courts relating to the Prevention of Corruption Act, or all other civil or criminal cases stay, would automatically cease after six months. The stay could be further extended only by a speaking order. The same would be the course of action to be adopted by civil and criminal appellate/revisional courts under the jurisdiction of high courts. On the expiry of the above period, trial courts may resume the proceedings without waiting for any other intimation unless an express order on extending the stay is produced.
Allahabad HC Judgment
A three-judge bench of the Allahabad High Court rejected the reference made to it by the SC regarding consideration of the directions by the SC. This directive had been passed by the Full Bench of the Allahabad High Court, comprising Chief Justice Pritinker Diwaker, Justice Ashwani Kumar Mishra, and Justice Ajay Bhanot. The appeal had been filed by the High Court Bar Association for getting certificate of appeal.
He expressed concerns about the practicality of implementing these directives. Firstly, the automatic vacation of stay orders might lead to adverse consequences for litigants who may not be at fault for the delay in the trial. Secondly, trial courts allegedly disregard interim orders passed by high courts. These two, when combined with the high courts’ inability to provide adequate redress to litigants, would severely impact the administration of justice. The automatic vacation of stay orders after six months would cause procedural delays due to backlog, lack of infrastructure, or administrative issues, which are beyond the control of litigants.
SC Review of its 2018 Judgment
The five-judge Bench comprising Justices A.S. Oka, J.B. Pardiwala, Pankaj Mithal, and Manoj Misra, besides CJI, D.Y. Chandrachud took a note of the plea of Senior Advocate Rakesh Dwivedi, that the 2018 Judgement takes away the power available to the high court under Article 226 of the Constitution. The CJI further added that when a stay is granted, there is application of mind but when it is automatically lifted, there is no such application of mind.
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According to Article 226, the Constitution gives powers to high courts to issue writs and orders to any person or government for enforcement of fundamental rights and for other purposes.
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Reserving its order, the five-judge constitution bench stated that automatic expiry of stay orders “prejudices the litigants irrespective of their conduct and second, because there are circumstances over which that litigant has no control. And yet many times there are systemic flaws as a result of which irrespective of what the litigant has in terms of interest available to him or her, stays are vacated by this logic. Secondly, the vacating of an order of stay is also a judicial act, not an administrative act”. However, the SC clarified that the judgment would not be applicable if the stay order has been passed by the SC. The reservation of the judgment was done after the bench heard the arguments from Senior Advocates Rakesh Dwivedi and Vijay Hansaria, Solicitor General Tushar Mehta and Advocates Mohfooz Nazki and Amit Pai.
The SC, while issuing notice to the State of Uttar Pradesh, further directed the Attorney General of India, R. Venkataramini, and the Solicitor General, Tushar Mehta, to assist the court in the matter.
The combined impact of these issues has broader implications for the administration of justice by high courts in India. High courts play a pivotal role in ensuring that justice is served efficiently. However, if high courts are unable to protect the rights of the litigants and their orders are not followed by the lower courts, the administration of justice would be adversely affected.
Conclusion
The reference by the Full Bench of the Allahabad High Court on the reconsideration of the judgment on automatic stay on vacations to the Supreme Court of India has offered an opportunity for deeper analysis of its implications and a potential recalibration of the approach. It highlights the ever-evolving nature of Indian judicial system and its constant quest for a balanced and just legal system for serving the interests of all stakeholders.
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