Why the Supreme Court overturned its 2018 decision, which set a time limit on courts’ stay orders

What the 2018 bench ruled in the Asian Resurfacing case

In 2018, a three-judge bench comprising Justices Adarsh Goel, Navin Sinha and Rohinton Nariman were deciding a batch of cases involving the Prevention of Corruption Act. These batches of cases had one aspect in common – that the respective High Courts had granted a stay at some stage of trial. Stay orders are passed for a court to temporarily halt a judicial proceeding, to secure the rights of a citizen.

Grant of stay invariably delays the trial, irrespective of which side benefits from it. For example, if an HC in a case had to consider the challenge against an order framing charges (by the trial court), it would first grant a stay of trial and then grant a date for hearing arguments on framing charges.

With Courts bogged down with criminal cases that perhaps need more immediate attention, such as bail cases, the hearing against framing of charges gets delayed. In our three-tier system of courts, a trial court’s decision can be challenged at every stage, not just at the final stage after a verdict is delivered. It is not uncommon to find trials pending for decades because a stay is in operation.

In Asian Resurfacing, the SC held that while a “High Court has jurisdiction in appropriate case to consider the challenge against an order framing charge and also to grant stay but how such power is to be exercised and when stay ought to be granted needs to be considered further.”

To address the big problem plaguing the criminal justice system, of undue delays in trials, the SC held that interim orders of stay at the High Court and Civil Court level will be only valid for six months. At the end of this period, they will automatically be rescinded or “vacated”.

What was the impact of the 2018 ruling?

As anticipated, with the 2018 ruling, several trials on stay virtually rose from the dead without notice. Lawyers would cite the Asian Resurfacing ruling to alter the status quo.

For example, say a flimsy or frivolous FIR is filed and a trial court has issued summons. This would be challenged before the HC, but the HC would first stay the summons and grant a date for the hearing. But citing the Asian Resurfacing case meant that a trial court would issue non-bailable warrants suddenly for not appearing before the Court. All this, while the HC had not yet heard arguments for quashing the summons itself.

While this added the load on the HCs and burdened the average litigant, it also raises key questions of law. These questions were framed by another three-judge bench headed by CJI DY Chandrachud in December last year.

First, whether the SC, under Article 142 of the Constitution (which allows the Supreme Court to pass any order to secure “complete justice”) can order automatic vacation of all interim orders of the HC of staying proceedings of Civil and Criminal cases on the expiry of a certain period?

Second, whether the SC, under Article 142 of the Constitution, can direct the HCs to decide pending cases in which interim orders of stay of proceedings have been granted on a day-to-day basis and within a fixed period?

On what grounds has the 2018 ruling been undone?

The five-judge bench held that constitutional courts should refrain from laying down precise timelines for deciding cases, highlighting the discretion that should be afforded to lower courts which are more aware of “grassroots issues”. The SC also pointed out that courts often have different patterns when it comes to their pending caseload, and so the concerned court is best placed to decide which cases to prioritise.

The case was heard for a single day on December 13 last year by a bench led by Chief Justice of India D.Y. Chandrachud and comprising Justices A.S. Oka, J.B. Pardiwala, Pankaj Mithal and Manoj Misra.

Senior Advocate Rakesh Dwivedi, who was representing the petitioner (the High Court Bar Association of Allahabad), argued that vacation of a stay is a judicial decision which needs application of mind, without which judicial decisions would become arbitrary. Automatic vacation of stay would be antithetical to this principle.

Solicitor General Tushar Mehta, representing the central government, also appeared and argued that the Asian Resurfacing judgment infringes on the discretion afforded to High Courts to decide applications for vacation of stay orders under Article 226(3) of the Constitution. He also argued that deciding timelines for judicial proceedings is a decision for Parliament to make through its law-making power, not the courts.

Justice Abhay S. Oka in his majority opinion (for four judges while Justice Manoj Misra concurred with the majority in a separate opinion), held that a stay order can only come to an end after all the parties in the case have been heard first.

The court also held that the bench in Asian Resurfacing did not have the power to set a six-month time limit for vacating stay orders. The bench in Asian Resurfacing had invoked Article 142.

In the judgment written by Justice Oka, the court held that automatically vacating a stay order after six months would in fact “defeat justice” by nullifying interim orders that had been lawfully passed without hearing the parties.

The court also agreed with Tushar Mehta’s argument that the six-month time limit would amount to court-created legislation, which is impermissible. Only the legislature has the power to decide if a category of cases should be decided within a specific amount of time.

In order to deal with the issue at the heart of the Asian Resurfacing decision – the speedy trial of cases – the constitution bench held that High Courts should prioritise applications that do ask for a stay order to be rescinded or vacated, even if the main case cannot be heard. The judgment states “The High Courts cannot take recourse to the easy option of directing that the same should be heard along with the main case.”

Justice Manoj Misra in his separate opinion drew attention to Article 226(3) of the Constitution, which already provides a two-week time limit for High Courts to consider an application for the vacation of an interim order. If the application is not disposed of within those two weeks, Article 226(3) provides that the interim order will be vacated.

Justice Misra pointed out that this essentially provides a process for automatically vacating a stay order, so long as an application is filed in the first place.