Automatic Stay Vacation - Reference Against 'Asian Resurfacing' : Live Updates From Supreme Court Hearing

SG Mehta: Suppose in a 227 or a 482 jurisdiction an accused approaches the court saying that there is no valid sanction. HC is satisfied. HC says till the sanction is granted trial not to proceed.

SG Mehta: By a judicial mandamus or a continuing mandamus, the judicial discretion of HC cannot be curtailed.

Dwivedi: By issuing these directions we are not enabling the High Court to conduct the proceedings in a particular manner but disabling them. We are downgrading the status.

Dwivedi: There is some kind of a tendency sometimes that we try to limit the powers of the High Courts. What we really need is for the HCs to discharge its duties more effectively. Let us not curb the HCs, the time is to rebuild them.

CJI: 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.

CJI: 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

Dwivedi: The court has held that it is not permissible for the court to fix time limits for completion of trials. The reason is that delay in trial courts happen for a variety of reasons.

Dwivedi: It ignores two precedents - Antulay's case and P Ramachandran Rao.

Dwivedi: Speedy trial includes early termination of vexatious trials also. This direction does not reasonably balance the two aspects.

Dwivedi: The arbitrariness and the discriminatory character of this direction arises from the fact that it lumps together all sorts of cases- civil, criminal, tax irrespective of facticity of cases, nature of jurisdiction, and determination of fault.

Dwivedi: The automatic vacation is neither hinged on application of mind by the High Court nor by the Supreme Court. An application of mind is the essence of judicial decision making without which the decision would be arbitrary.

Dwivedi: This is because the High Court enjoys a high constitutional status and it's not subordinate to the Supreme Court.

Dwivedi: Merely because there is a problem arising, doesn't mean that the general power of High Court can get curtailed.

Dwivedi: Article 226 is a part of the basic structure of the Constitution. 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 141 and 142.