SC to hear Punjab and Haryana HC’s criticism of its stay order today

The issue concerns comments by Justice Rajbir Sehrawat concerning the stay order of the SC dated May 3, 2024.

Taking exception to the stay order, the single judge had said that “seen at a psychological plane this type of order is actuated, primarily, by two factors, firstly a tendency to avoid owning responsibility of the consequence which such an order, in all likelihood, is bound to produce, under a pretense that an order of stay of contempt proceedings does not adversely affect anybody, and secondly, a tendency to presume the Supreme Court to be more ‘Supreme’ than it actually is and to presume a High Court to be lesser ‘High’ than it constitutionally is.”

Justice Sehrawat noted that the SC had only stayed the contempt proceedings and not the operation of the entire order.

He said, “had the SC stayed the entire order, then this court would have dismissed the contempt petition ipso facto, as is the normal practice in this court. However, that has not been done. Rather, the order passed by the Hon’ble Supreme Court has given rise to a problem of Constitutional Conformity vis-a-vis the Court Compliance, besides increasing the pendency before this Court by one more case”. It added, “one never knows how many more cases in execution and contempt petition may have been kept pending throughout the country because of such orders”.

The HC said, “power to initiate and to continue the proceedings for alleged contempt qua an order passed by the High Court lies exclusively with the High Court as per the Article 215 of the Constitution of India and Section 12 of the Contempt of Courts Act. The Supreme Court has no role in this aspect except in an appeal against the order of a Division Bench of High Court convicting a contemnor.

As per the provisions of the Act, even an appeal does not lie before the Supreme Court against an order passed by Single Bench, rather it lies before the Division Bench of High Court, and even there, the powers of the appellate Court are well defined, in terms of stage of appeal and in terms of the nature of order which the appellate Court could pass”.

It said that “how much drastic and damaging consequences such an order of stay of contempt proceedings can produce, may not have occurred to the Supreme Court in its most wide imaginations”. The HC said the SC “itself has clarified multiple times that the High Court is not subordinate to the Supreme Court… therefore, there is no scope for sundry direction being issued by the Supreme Court to a High Court, regarding certain proceedings pending before a High Court”.

The judge said that he “however, keeping in view the sanctity of the judicial process…feels to be absolutely bound by the order and hence, the case is adjourned sine die till the…SLP is decided” by the SC.

He added, “but this may not be always possible for a High Court to follow such a course in view of particular facts and circumstances embedded in a particular case or because of involvement of some statutory provisions. That would be an unfortunate situation, which would better be avoided”.