SC to deliver judgement on plea for reconsideration of 2018 verdict on grant of stay by courts

NEW DELHI: The Supreme Court is scheduled to deliver on Thursday the verdict on a plea seeking reconsideration of its 2018 judgement which held that the stay granted by a lower court or high court in civil and criminal cases will automatically expire after six months unless extended specifically.

A five-judge constitution bench headed by Chief Justice D Y Chandrachud had on December 13, 2023 reserved its judgement after hearing senior advocate Rakesh Dwivedi, who appeared for the High Court Bar Association of Allahabad, Solicitor General Tushar Mehta, and other lawyers on the issue.

Besides the CJI, justices A S Oka, JB Pardiwala, Pankaj Mithal and Manoj Misra are on the bench.

“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.

“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,” the bench had said.

Senior advocate Dwivedi had said the mechanism of automatic vacation of stay could interfere with the power of the high courts under Article 226 of the Constitution and may be seen as “judicial legislation”. He said the autonomy of high courts needed to be upheld.

Article 226 of the Constitution gives wide powers to high courts under which they can issue writs and orders to any person or government for enforcement of fundamental rights and for other purposes.

The solicitor general had concurred with Dwivedi and said the judicial discretion of high courts cannot be curtailed by a “judicial mandamus or a continuing mandamus”.

The top court had on December 1 last year referred to a five-judge bench its 2018 judgement for reconsideration.

The judgement said the stay granted by a lower court or high court in civil and criminal cases will automatically expire after six months unless extended specifically.

A three-judge bench had in its 2018 verdict in the case of Asian Resurfacing of Road Agency P Ltd Director Vs CBI held that the interim order of stay granted by courts, including high courts, will stand vacated automatically unless they are specifically extended. Consequently, no trial or proceedings can remain stayed after six months. However, the top court had later clarified that the judgement will not be applicable if the stay order has been passed by it.

A CJI-led bench had prima facie agreed with the submissions of Dwivedi and said his petition will be referred to a five-judge bench as the impugned judgement was delivered by a three-judge bench of the top court.

Referring to the findings in the 2018 judgement, the bench said, “We have reservations in regard to the correctness of the broad formulation of the principles in the above terms. We are of the view that the principle which has been laid down in the above decision to the effect that a stay shall automatically stand vacated is liable to result in a miscarriage of justice.”