The Constitutional Mandate: High Courts' Role In Interim Relief

The Supreme Court in High Court Bar Association Allahabad 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 six (6) months' period. The Supreme Court deliberated upon this question and held that such a direction that all interim orders of stay of proceedings passed by every High Court automatically expire only by the reason of lapse of time cannot be issued in the exercise of the jurisdiction under Article 142 of the Constitution of India.

Facts:

The Division Bench, High Court of Delhi in a Criminal Revision Petition filed by Asian Resurfacing of Road Agency Pvt. Ltd. had 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?” and “Whether the order framing charge can be assailed under Article 227 of the Constitution of India?” The Division Bench 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 and could not be barred, however, Courts must refrain from passing an order which would run counter to and conflict with the express intendment contained in Section 19(3)(c) of the Prevention of Corruption Act 1947 (“PC Act”) which provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973 no Court shall stay the proceedings under PC 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.

Thereafter Asian Resurfacing of Road Agency Pvt. Ltd challenged the abovesaid decision of the Division Bench, High Court of Delhi before the Supreme Court wherein it was held:

“36. In view of above, situation of proceedings remaining pending for long on account of stay needs to be remedied. Remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up. At times, proceedings are adjourned sine die on account of stay. Even after stay is vacated, intimation is not received, and proceedings are not taken up. In an attempt to remedy this, situation, we consider it appropriate to direct that in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended. In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized. The trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.

37. Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 Cr.P.C. or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to re-appreciate the matter. Even where such challenge is entertained and stay is granted, the matter must be decided on day-to-day basis so that stay does not operate for an unduly long period. Though no mandatory time limit may be fixed, the decision may not exceed two-three months normally. If it remains pending longer, duration of stay should not exceed six months, unless extension is granted by a specific speaking order, as already indicated. Mandate of speedy justice applies to the PC Act cases as well as other cases where at trial stage proceedings are stayed by the higher court i.e. the High Court or a court below the High Court, as the case may be. In all pending matters before the High Courts or other courts relating to PC Act or all other civil or criminal cases, where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from today unless extended by a speaking order on above parameters. Same course may also be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the High Courts. The trial courts may, on expiry of above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced.

The aforementioned decision in Asian Resurfacing was then referred to a larger bench of five Judges of the Supreme Court to decide upon the correctness of the views taken vis-à-vis the principle to the effect that stay shall automatically stand vacated.

Contention of the Parties:

The Appellant, i.e., High Court Bar Association, Allahabad as well as the Learned Solicitor General appearing for the State of Uttar Pradesh relied on various judgments, and advanced various submissions and arguments before the Constitution bench of the Supreme Court against the principle formulated in Asian Resurfacing judgment.

The Appellant submitted that:

a. Automatic vacation of an interim order is in the nature of a judicial legislation, and Courts cannot engage in judicial legislation.

b. Article 226 is a part of the basic structure of the Constitution of India and cannot be whittled down by the exercise of powers under Article 142.

c. An order granting interim relief cannot be passed without is application of mind, and similarly an order vacating interim relief cannot be passed without the application of judicial mind.

The Respondent No.1, i.e., State of Uttar Pradesh as well as other respondents supported the submissions of Appellant and in addition to them submitted that:

a. Laws of procedure are grounded in the principles of natural justice, which require that no decision can be made in the absence of person affected by such decision.

b. An interim relief order is granted after considering the presence of three factors, (i) the prima facie case; (ii) balance of convenience; and (iii) irreparable injury to the aggrieved party. Accordingly, once a finding is recorded in respect of the said criteria, the party seeking stay is entitled to an order of stay, and such stay order does not automatically become bad on the ground that it has lived for six months.

c. In Asian Resurfacing, there was no lis before this Court arising out of the orders of stay granted in different categories of cases pending before various high courts as the Court was dealing with case pertaining to PC Act.

Findings and Decision:

The Supreme Court while agreeing with the submissions of the parties opined that while passing the Asian Resurfacing judgment, the object of passing interim orders has not been considered. The Supreme Court noted that the interim relief is usually granted in the aid of the final relief sought in the case and the occasion for a party to seek stay orders arises when High Court is dealing with a challenge to interim or interlocutory order passed during the pendency of the main case. The High Court grants such relief once it is satisfied that a prima facie case is made in favour of the party seeking stay and failure to stay the proceedings may render the remedy sought before the High Court infructuous and ineffective. The Supreme Court further observed that in such situations High Courts might have to pass an order of remand which will result in more delay and increase in the cost of litigation.

The Supreme Court then observed that the effect of interim order of stay can come to an end either by disposal of the main case by the High Court, wherein the interim order has been passed or by 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. The Apex Court opined that if the approach of automatic vacation of stay orders after six months is adopted, it will be completely contrary to the concept of fairness and if an interim stay is vacated without any fault on the part of the litigant only because High Court cannot hear the main case, the maxim “actus curiae neminem gravabit” i.e., the act of the Court shall prejudice no-one, will apply.

The Supreme Court emphasised that even if the Legislature were to come up with such a provision for automatic vacation of stay, the same may not stand judicial scrutiny as it may suffer from manifest arbitrariness.

The Supreme Court also observed that the question regarding the duration and vacation of interim orders did not arise for consideration before the Supreme Court in Asian Resurfacing and accordingly, the Supreme 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. The Surpreme Court further held that in Asian Resurfacing, there was no lis before Court arising out of the orders of stay granted in different categories of cases pending before various high courts as the Court was dealing with case pertaining to PC Act. Thus, an attempt was made to delve into an issue which did not arise for consideration.

The Supreme Court also held that while exercising jurisdiction under Article 142, the Supreme Court in order to do complete justice between the Parties may issue procedural directions, however, the court cannot ignore the substantive rights of the litigants who are not parties to the case before it. The right to be heard before an adverse order is passed is not a matter but a substantive right.

The Supreme Court opined that a High Court is also a Constitutional Court and in not judicially subordinate to the Supreme Court. Further, unlike the Supreme Court, the High Courts under Article 227 of the Constitution of India can exercise judicial superintendence over the decisions of all courts and tribunals within their jurisdiction and the same forms part of the basic structure of the Constitution. The corollary of having judicial superintendence is the power to stay the proceedings before trial and appellate Courts. Thus, the Supreme Court held that it cannot constrain such power by way of a blanket order under Article 142, in contravention of the basic structure of the Constitution.

The Court held that the directions of automatic vacation of a stay order upon the expiry of a certain period and the disposal of cases in which stay has been granted on a day-to-day basis virtually amounts to judicial legislation. Only the legislature can provide that a particular category of cases should be decided within a specific time and even such provisions are held to be directory. The Supreme Court opined that ideally the cases in which stay of proceedings has been granted should be disposed by of expeditiously, but the same is not possible in all circumstances and various High Courts are flooded with petitions seeking stay of proceedings which once entertained and granted, take considerable time to finally dispose. The Supreme Court further opined that the High Courts have other categories of cases pending before them, such as cases involving senior citizen litigants, issues involving liberty under Article 21 of the Constitution, old appeals, matrimonial disputes etc., which also require speedy disposal and therefore, cases where stay has been granted cannot be distinguished and given priority alone. The Court further held that not every litigant can easily afford to file proceedings in the constitutional Courts. Those litigants who can afford to approach the constitutional Courts cannot be allowed to take undue advantage by getting an order directing out-of-turn disposal of their cases while all other litigants patiently wait in the queue for their turn to come. 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.

The decision in High Court Bar Association Allahabad is of utmost importance as the same while clarifying the ambit of interference by constitutional courts granting interim reliefs takes note of the reality of the issues such as docket explosion, arrears of cases, financial constraints faced by the litigants and thus strikes a balance between idealism and practicality. The Supreme Court corrected its course and overruled Asian Resurfacing judgement vide which the Supreme Court in order to solve the issue of delay in proceedings in which stay has been granted overlooked other issues which are of equal importance.

The dictum laid down by Supreme Court also serves as a significant check on overreach and upholds the delicate balance between judicial power at the Supreme Court and High Courts. It ensures that interim orders, often crucial for safeguarding rights during litigation, are not revoked arbitrarily and without due application of judicial mind just because the matter could not be taken up by High Court and consequently stay could not be granted.

Another important facet of the Judgment is the observation that the power of the Supreme Court under Article 142 of the Constitution cannot be exercised to defeat the principles of natural justice and to issue blanket orders that may adversely impact the litigants that are not before the Supreme Court. Further, it has also sought to strike a balance between a huge backlog of cases and following the principles of natural justice which it missed to address while adjudicating Asian Resurfacing and consequently in the quest of justice ended up doing injustice.

However, in the backdrop of staggering number vacancies of judges, financial heterogeneity amongst various litigants and resultant inequality of representation, lengthy court proceedings, lack of basic and technological infrastructure etc., the impact of absence of a time-bound operation of a stay order on pendency and time taken to dispose the cases is yet to be seen.

Authors: Apoorva Misra (Partner) and Nishant Rewalia (Associate) At Ahlawat and Associates. Views are personal.