On 29th February 2024, the Constitution Bench of the Supreme Court in High Court Bar Association, Allahabad v. State of U.P. & Ors. (“the Constitution Bench”) overruled certain directions in Asian Resurfacing of Road Agency Private Limited & Anr. v. Central Bureau of Investigation (hereinafter referred to as “Asian Resurfacing”). Asian Resurfacing, which had directed automatic vacation of stay orders passed by any Court including the High Court or Revisional Courts in all civil and criminal trials within a period of 6 months from the date of the judgment (28th March 2018) and had further directed that in cases where stay had been granted, the matter had to be decided on a day-to-day basis.

The issues before the Constitution Bench

The majority opinion, sets out the two questions that Constitution Bench was “called upon” to decide:

1. Whether the Supreme Court under Article 142 of the Constitution of India (“the Constitution”) “can order automatic vacation of all interim orders of the High Courts of staying proceedings of Civil and Criminal Cases on the expiry of a certain period?”

2. Whether the Supreme Court under Article 142 of the Constitution, “Can direct the High Courts to decide pending cases” in which interim stay orders are passed on a day-to-day basis within a fixed period?

Certain inconsistencies in the majority opinion

Part C of the majority opinion titled, “Analysis”, is divided into IX parts. In this column, the author focuses on Part IV to IX of the opinion.

While analysing the scope of the Supreme Court’s power under Article 142 in Part IV, the majority opinion, states that the Supreme Court can exercise its powers under Article 142 to do complete justice between the parties before the Court, but it cannot nullify the benefits derived by many litigants based on judicial orders obtained in their favour. The opinion also goes on to state that Article 142 cannot be exercised to defeat the principles of natural justice and cannot be used to ignore the substantive rights of litigants but the Supreme Court “can always issue procedural directions to the Courts for streamlining procedural aspects and ironing out the creases in the procedural laws to ensure expeditious and timely disposal of cases.” This position of law is obviously undisputable. However, in Part V of the majority opinion, though the Court recognizes that the High Court is not judicially subordinate to the Supreme Court, the Court does not clarify whether the High Court is administratively subordinate to the Supreme Court or not.

While it could be argued that (a) the expression “judicially subordinate” includes administrative autonomy and (b) therefore the High Courts are obviously administratively independent, such presumptions and implications cannot be read into a judgment. What is not stated in a judgment is as important if not more important than what is stated. If the High Court is constitutionally independent of the Supreme Court and is not subordinate to it, then the Supreme Court ought to have specifically clarified that constitutional independence of the High Court includes judicial and administrative independence.

The Supreme Court is conscious of the fact that on several occasions certain Benches of the Court have itself issued directions or made requests to the Chief Justice of a High Court to reassign cases from one Bench of a particular High Court to another Bench of the same Court. A Bench of the Supreme Court had also recently requested all High Courts to decide applications under Section 11 (5) and (6) of the Arbitration and Conciliation Act, 1996 in a time bound manner. In one case before the Supreme Court, the former Attorney General of India had even argued before a Division Bench of the Supreme Court that it had no authority to issue directions on the administrative side to a particular High Court prompting the Supreme Court to clarify that the matter before it wasn’t an adversarial litigation and the concerned High Court should not make it into a prestige or ego issue. Therefore, from a reading of the majority opinion of the Constitution Bench, it is not clear as to whether the Court consciously chose not to clarify this issue. But if the High Court is not subordinate to the Supreme Court, then the Supreme Court cannot issue directions to any High Court on the administrative side to reassign matters to different Benches or to direct High Courts to decide certain kinds of matters pending before it expeditiously.

In Part VI of the majority opinion while referring to its previous decision in Sanjeev Coke Manufacturing Company v. Bharat Coking Coal Ltd. and another, the majority opinion states that in Asian Resurfacing, “there was no lis before” the Supreme Court arising out of the orders of stay granted in different categories of cases pending before various High Courts and therefore “an attempt was made to delve into an issue which did not arise for consideration”. In Part VIII, the majority holds that time limits cannot be set by the Supreme Court to the High Courts to decide cases before them because the Supreme Court “is not superior to the High Courts” and therefore it should be left to the concerned Court whether an outer limit should be set for deciding a matter or not. However, despite holding in Part VI that the Court cannot decide an issue which is not before it, in Part IX of the majority opinion the Court sets out “procedure to be adopted by the High Courts while passing interim order of stay of proceedings and for dealing with the applications for vacating stay.”

As mentioned above, there were only two issues before the Constitution Bench i.e., whether stay orders could be vacated automatically by exercising jurisdiction under Article 142 and whether the Supreme Court could under Article 142 direct the High Courts to decide pending cases before it in which stay orders had been passed within a fixed period. By setting out a “procedure” to be adopted by the High Courts while passing interim orders, the Constitution Bench has gone beyond the two issues before it. Therefore, it is respectfully submitted that what is set out in Part VI of the majority opinion is inconsistent with what is set out in Part IX of the same opinion. The Constitution Bench has ultimately held that the High Courts are not subordinate to the Supreme Court and hence no directions can be given by the Supreme Court to the High Courts to decide matters in a time bound manner or within a fixed period. If that be the case, then by adopting the very same logic, the Constitution Bench could not have issued directions to High Courts on how they should pass interim stay orders.

As mentioned earlier, there is no disputing that fact that the Supreme Court can issue “procedural directions” under Article 142, but the directions in Part IX of the majority opinion are anything but procedural. Part IX of the opinion sets out when interim relief should be granted by the High Court, how it must be vacated, it directs the High Courts to give priority to the hearing of the prayer of interim relief and priority to matters for vacating interim relief and more importantly it states that the High Court cannot take recourse to the easy option of directing that the application for interim relief shall be heard along with the main case.

The conclusion of the majority opinion further states that while dealing with the prayers for grant of interim relief, “the High Courts should take into consideration the guidelines incorporated” in para 34 and 35 of the opinion (Part IX). It is well settled that granting of interim measures or stay is a discretionary relief based on the judicial discretion of the Judge. By setting out these directions/guidelines/procedures, the Constitution Bench has in fact interfered with the judicial and administrative discretion conferred on the High Court while granting interim measures.

Concluding comment

While the Constitution Bench has rightly overruled the afore-mentioned directions laid down in Asian Resurfacing, the reasoning in the majority opinion has raised more questions than answered while examining the relationship between the Supreme Court and the High Courts and the powers exercised by both these Constitutional Courts.

Author is an Advocate practicing in the High Court of Bombay.

[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]