Introduction:
A five-judge Constitution Bench of the Hon’ble Supreme Court, vide its recent judgment in High Court Bar Association Allahabad v. State Of Uttar Pradesh & Ors.,[1]adjudicated inter alia upon whether the court, in exercise of its jurisdiction under Article 142 of the Constitution of India, can order the automatic vacation of all interim/ stay orders of the High Court in civil and criminal cases on the expiry of a certain period.
The Apex Court answered the aforementioned question in the negative and categorically held that recourse to jurisdiction under Article 142 must be invoked only to do complete justice and not “to pass blanket orders setting at naught a very large number of interim orders, lawfully passed by all the High Courts.”[2] Accordingly, the Hon’ble Supreme Court overruled its 2018 decision in Asian Resurfacing of Road Agency Pvt. Ltd. v. Central Bureau of Investigation[3] (“Asian Resurfacing”), wherein it was held that interim orders passed by High Courts of India in civil and criminal trials shall automatically expire after six (6) months from the date of such order, unless extended by an express order.
Brief Background: 2018 Asian Resurfacing decision till present
An FIR was registered against Asian Resurfacing of Road Agency Pvt. Ltd (“Appellant”) as well as certain officials of the Municipal Corporation of Delhi (“MCD”) under various provisions of the Indian Penal Code (“IPC”)[4] and Prevention of Corruption Act (“PCA”)[5].
A chargesheet was filed by the Central Bureau of Investigation (“CBI”) before the Special Judge, CBI in November 2002, who subsequently passed an order framing charges. The Appellant sought a Criminal Revision petition before the Delhi High Court (“HC”) against such order[6]. The Learned Single Judge inter alia adjudicated on whether the order framing charges passed by the Special Judge, being an interlocutory order, and against which no revision can be sought in terms of Section 19(3)(c) of the PCA[7], can be challenged under Article 226/227 of the Constitution of India? The Learned Single Judge negatived the aforementioned issue and observed that “the very purpose of the statutory provisions enacted by legislature under Section 19(3)(c) of the Prevention of Cruelty Act stand defeated if the petitions under Article 227 are entertained against the order on charge.” However, the Learned Single Judge in considering the divergent opinions of the HC in Dharambir Khattar v. Central Bureau of Investigation[8] and R.C. Sabharwal v. Central Bureau of Investigation[9]opined that the matter ought to be adjudicated upon by a larger bench. It is worth noting herein, that while both Dharambir Khattar & R. C. Sabharwal judgments categorically state that no revision petition would be maintainable in the High Courts against the order on charge, in terms of the express bar in Section 19(3)(c) of the PCA, the subsequent decision in R.C. Sabharwal however, goes on to hold that the supervisory jurisdiction of the High Courts under Article 227 is very wide and can be used to interfere even with an interlocutory order, to meet the ends of justice.
The Division Bench framed the following questions inter alia for consideration – “… Whether an order framing charge under the 1988 Act would be treated as an interlocutory order, thereby barring the exercise of revisional power of this Court?… Whether the order framing charge can be assailed under Article 227 of the Constitution of India?” It was held that the order framing charge was an interlocutory order and no Revision Petition is maintainable before the High Court against such order. As regards whether an order framing charge can be challenged in an Article 227 petition, the Division Bench observed that the said power was part of the basic structure of the Constitution as laid down in L. Chandra Kumar versus Union of India and Ors.[10] and could not be barred, however, Courts must be circumspect and refrain from passing an order which would be in contravention of the express intendment contained in Section 19(3)(c) of the PCA.
The said decision of the Division Bench was impugned before the Supreme court vide a criminal appeal which culminated in the Asian Resurfacing Judgment, wherein it was held:
“…To give effect to the legislative policy and the mandate of Article 21 for speedy justice in criminal cases, if stay is granted, matter should be taken on day-to-day basis and concluded within two-three months. Where the matter remains pending for longer period, the order of stay will stand vacated on expiry of six months, unless extension is granted by a speaking order showing extraordinary situation where continuing stay was to be preferred to the final disposal of trial by the trial Court.”[11]
The aforementioned decision in Asian Resurfacing was referred to a larger bench of five Judges to ascertain inter alia whether the Supreme Court, while exercising its extraordinary jurisdiction under Article 142 can order the automatic vacation of all interim orders of the High Court granting stay in civil and criminal cases on the expiry of a certain period.
Contention of the Parties
Various submissions were canvassed before the Supreme Court along the lines of an automatic vacation of interim relief being patently unjust, unfair and unreasonable. It was argued by the Learned Counsel for the Appellant inter alia:
- That the automatic vacation of an interim order is in the nature of a ‘judicial legislation’ and beyond the ambit of judicial powers;
- That Article 226 is a part of the basic structure of the Constitution of India, and cannot be watered down by the exercise of powers under Article 142;
- That a pre-requisite of an order granting interim is application of mind, whereby a decision passed without application of mind is manifestly arbitrary. An order vacating interim relief cannot be passed without the application of judicial mind, by way of the blanket decision in the 2018 Asian Resurfacing judgment.
Learned Solicitor General, appearing for the State of Uttar Pradesh, supported the aforementioned submissions, and further contented that an interim order is granted after considering the triad of (i) the prima facie case; (ii) balance of convenience; and (iii) irreparable injury to the aggrieved party. Accordingly, once it has been held, on the basis of the aforementioned criteria, that the aggrieved party is entitled to an order of stay, such order does not automatically become bad on the ground that it has lived for six months.
Important Findings of the Five-Judge Bench of the Hon’ble Supreme Court
Re: Whether an Interim Order can come to an end automatically due to lapse of time?
The Hon’ble Supreme Court has categorically held that an interim order can come to an end either by (i) disposal of the main case by the High Court, wherein the interim order has been passed; or (ii) a judicial order vacating such interim relief – after hearing the contesting parties. Thus, it observed that the principles of natural justice and application of mind are essential pre-requisites to an order vacating interim relief. An interim order passed by the High Courts, after duly hearing the parties, shall not be rendered illegal or set at naught merely due to the passage of time.
Re: Exercise of powers under Article 142 of the Constitution:
The Supreme Court also took cognisance of the issues raised in the Asian Resurfacing matter, which pertained only to (i) whether an order framing charge under the PCA was in the nature of an interlocutory order and (ii) whether the High Court could entertain a challenge to an order framing charge in view of the provisions of the PCA. Herein, it noted that the question regarding the duration and vacation of interim orders did not arise for consideration. Accordingly, the court held that, “the jurisdiction under Article 142 cannot be invoked to pass blanket orders setting at naught a very large number of interim orders lawfully passed by all the High Courts, and that too without hearing the contesting parties. The jurisdiction under Article 142 can be invoked only to deal with extraordinary situations for doing complete justice between the parties before the court”[12]. It was also observed that while exercising jurisdiction under Article 142, the Supreme Court may issue procedural directions, however, in doing so “the court cannot affect the substantive rights of the litigants who are not parties to the case before it.”[13]
Re: Power of the High Courts under Articles 226/227:
The Hon’ble Supreme Court reiterated settled jurisprudence that a High Court, being a constitutional court, is not judicially subordinate to the Supreme Court. It relied on the decision rendered in L. Chandra Kumar to emphasise that the power vested in the High Courts to exercise judicial superintendence over the decisions of all courts and tribunals within their jurisdiction is part of the basic structure of the Constitution. The corollary of such power is the power to stay the proceedings before such courts. Thus, it was held that the Supreme Court cannot interfere in such power by way of a blanket order under Article 142, in contravention of the basic structure of the Constitution.
Re: Procedure to be adopted by High Courts whilst granting orders of stay:
It was observed that the Hon’ble Supreme Court’s directions in Asian Resurfacing on automatic vacation of a stay order upon the expiry of a certain period virtually amounted to judicial legislation. It was underscored that such an overreach into the realm of the legislature must not be exercised by the courts. In fact, while cognisance must be taken of the pendency and longevity of cases before the trial courts, constitutional courts are required to be non-interventionist when it comes to the day-to-day functioning of such courts. Blanket directions relating to the speedy resolution of cases within a fixed, stipulated time frame ought not to be issued, and such considerations ought to be left to the concerned court, unless there exist extraordinary circumstances. It was reiterated that any ad-interim relief granted by the High Courts can be vacated or affirmed only after the application of mind by the concerned court.
Concluding Thoughts
The present decision assumes significance as it not only clarifies the ambit of interference by constitutional courts whilst granting interim reliefs, thereby overturning its Three-Judge Bench decision in Asian Resurfacing, it also curates an important jurisprudence as to the exercise of jurisdiction under Article 142 of the Constitution of India.
By categorically holding inter alia that (i) the power of the Supreme Court under Article 142 cannot be exercised to defeat the principles of natural justice, and issue blanket orders that may adversely impact the litigants that are not before it, and (ii) that Constitutional Courts, ordinarily and in the usual course, ought not to fix a time-bound schedule for the disposal of pending cases before other courts, the Hon’ble Supreme Court has laid out a non-interventionist approach to be exercised by Constitutional Courts. Further, it has sought to strike a balance between a huge backlog of cases (which may increase if parties who are the beneficiaries of interim orders, have to go to court again for extension of such orders or otherwise) and following the principles of natural justice. However, it remains to be seen how the absence of a time-bound operation of a stay order practically impacts the overwhelming pendency and longevity of cases before the Trial Courts.
For further information, please contact:
Vikash Kumar Jha, Partner, Cyril Amarchand Mangaldas
vikashkumar.jha@cyrilshroff.com
[1] Criminal Appeal No.3589 of 2023
[2] Para 19 in the SC decision in Criminal Appeal No.3589 of 2023
[3] Criminal Appeal Nos. 1375-1376 of 2013
[4] Section 120B read with Section 420, Sections 467, 468, 471, 477A of the IPC.
[5] Section 13(2) read with Section 13(1)(d) of the PCA.
[6] Such Revision Petition was converted into Writ Petition (Criminal) No. 352 of 2010.
[7] Section 19(3)(c): “notwithstanding anything contained in Code of Criminal Procedure, 1973, (c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.”
[8] 159 (2009) DLT 636
[9] 166 (2010) DLT 362
[10] (1997) 3 SCC 261
[11] Para 33. See also para 35, 36.
[12] Para 19
[13] Para 22(iii)
