Compliance of "Asian Resurfacing" Judgment Not Realistically Feasible: Allahabad HC Frames 10 Questions For 'Constitutional Debate' With Supreme Court

The Allahabad High Court observed that compliance of the Supreme Court judgment in Asian Resurfacing of Road Agency Private Limited & Anr. vs Central Bureau of Investigation is not realistically feasible.

"Automatic vacation of stay orders in compliance of the said directions in Asian Resurfacing (supra) is visiting litigants with adverse consequences for no fault of theirs, and that the trial courts are disregarding interim orders passed by this Court", the Full Bench comprising of Chief Justice Pritinker Diwaker, Justice Ashwani Kumar Mishra and Justice Ajay Bhanot.

The bench was considering the reference made to it regarding the consideration of the directions issued by the Supreme Court in the judgment of Asian Resurfacing of Road Agency Private Limited & Anr. vs Central Bureau of Investigation.

The Court, though rejected the applications, framed certain substantial questions of law as to the interpretation of the Constitution, and granted a certificate of appeal to the applicants and other such people to approach the Apex Court.

In that context, it was said that, "the facts and circumstances arising out of Asian Resurfacing(supra) are rather unprecedented. The extraordinary situation being faced by this Court has no parallel in living or archival memory of the institution. The imperative directions in Para 34, 36, 37 of Asian Resurfacing(supra) which were emphatically reiterated in Asian Resurfacing-II (supra), and also in Asian Resurfacing-III (supra) create a unique predicament for this Court for which past authorities are not reliable guides. In this wake, it would not be apposite to adjudicate submissions made at the Bar on merits. However, there is no denying the fact that the questions raised in the controversy go to the heart of constitutional interpretation and the root of raison detre of the High Court. Constitutional repose is not an option when faultlines have travelled to the very edifice of justice."

In light of the same, it was held that, "in view of the substantial questions formulated for consideration by the Hon’ble Supreme Court under Article 132 of the Constitution of India, we grant Certificate For Appeal to the Supreme Court to the applicants before us and all other persons who are similarly circumstanced. The Registry is directed to forthwith issue necessary certificates directly to such parties, as and when the parties approach the Registry."

Counsel Prashant Shukla, Counsel Rajshri Gupta and Counsel Sudhanshu Kumar appeared for the applicant, while Counsel Rohit Shukla and Counsel Shashi Kant Shukla appeared for the opposite party.

In this case, an application was filed under Section 482 of the CrPC and the applicant was initially granted an interim order in their favor. However, neither the informant nor the State filed a counter-affidavit. Although the matter was scheduled for multiple hearings, it couldn't be addressed due to time constraints. As a result, the interim order remained in effect but wasn't renewed by the Court through a fresh order. The first informant later approached the Trial Court, arguing that the interim order had lapsed, citing the Asian Resurfacing case. Consequently, trial proceedings began, and non-bailable warrants were issued for the applicant, resulting in their arrest. Subsequently, the High Court granted bail to the applicant.

Notably, in the Asian Resurfacing case, the Supreme Court had directed that where a stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months unless in an exceptional case by a speaking order such stay is extended. The Supreme Court reaffirmed this directive in October 2020. To expedite the justice system, the Apex Court also instructed all High Courts that in cases where interim orders had been issued, the stay on proceedings would expire after six months unless a stay extension was granted through a well-explained order, demonstrating an extraordinary situation where continuing the stay was more reasonable than allowing the trial court to reach a final decision. This mandate, as stated in paragraph 37 of the judgment, was broadened by the Supreme Court to encompass cases falling under the Prevention of Corruption Act and all other civil or criminal cases pending in the High Court or other Courts where an interim stay had been granted.

While hearing the bail application and the Section 482 application, multiple counsel from the High Court had intervened, highlighting the complexities arising from the directives laid out in the Asian Resurfacing case. In response to these concerns, Justice Bhanot formulated certain legal questions for deliberation by a larger bench.

On hearing the matter at length, the larger bench of the High Court observed that, "The breadth of Article 132 of the Constitution of India underscores the importance of settling constitutional issues with decisive pronouncements of the Supreme Court through an inclusive judicial discourse amongst Constitutional Courts. The High Courts have their ears to the ground and are first to be alerted to issues of constitutional importance which start affecting the common citizens in a significant manner, or impacting the legitimacy of constitutional organs, or impeding the administration of justice."

The Court also stressed that when High Courts frame substantial questions as to interpretation of the Constitution arising in the facts and circumstances of various cases, they lay down the framework of a constitutional debate, and that process creates a repository of constitutional thought where ideas survive or perish on their merits, and the discourse is essential to enlightened opinion in the legal fraternity.

In light of the same, the following substantial questions of law were framed for the deliberation of the Apex Court:

I. Whether the directions in paras 34, 36, 37 of Asian Resurfacing run contrary to the law laid down by the Five Judges Bench of the Supreme Court in A. R. Antulay and the Seven Judges Bench of the Supreme Court in P. Ramachandra Rao?

II. Whether in view of non consideration of the judgments rendered by Constitution Benches in A. R. Antulay and P. Ramachandra Rao in Asian Resurfacing, the directions issued in paras 34, 36, 37 of the Asian Resurfacing require reconsideration? As a corollary, whether the judgments rendered by Larger Benches in A. R. Antulay and P. Ramachandra Rao are liable to be followed in preference to the judgment by a Bench of lesser strength in Asian Resurfacing?

III. Whether the directions in paras 34, 36, 37 of the Asian Resurfacing satisfy the ingredients of law laid down by the Supreme Court under Article 141 of the Constitution of India?

IV. Whether the directions in paras 34, 36, 37 of the Asian Resurfacing are an instance of “judicial legislation” and are relatable to Article 142 of the Constitution of India?

V. Whether the directions contained in paras 34, 36, 37 in Asian Resurfacing can be issued by the Supreme Court under Article 142 of the Constitution of India and would such directions not contravene the law laid down by the Supreme Court under Article 141 of the Constitution of India in A. R. Antulay and P. Ramachandra Rao? Alternatively whether there is conflict between Articles 142 and 141 of the Constitution of India arising in the context of Asian Resurfacing and whether Article 142 will control Article 141?

VI. Whether the directions in paras 34, 36, 37 of Asian Resurfacing can be said to be in conformity with Part III of the Constitution of India, when a similar parliamentary legislation (Section 254 (2-A) of the Income Tax Act) was held to be violative of Article 14 of the Constitution of India, and struck down by the Delhi High Court in Pepsi Foods Pvt. Ltd. Vs Deputy Commissioner of Income Tax and Anr. and read down by the Bombay High Court in Narang Overseas Pvt. Ltd. Vs Income Tax Appellate Tribunal and others, the Gujarat High Court in CIT Vs Vodafone Essar Gujarat Ltd., and finally read down by the Supreme Court in DCIT Vs Pepsi Foods Ltd.? If the answer is in the negative whether the said directions in Asian Resurfacing are liable to be implemented?

VII. Alternatively whether “judicial legislation” made under Article 142 vide Asian Resurfacing can be judicially reviewed on the grounds on which legislative enactments are tested? What are the remedies for citizens who claim violation of Fundamental Rights by operation of “judicial legislation” made under Article 142?

VIII. Whether in view of the fact that while all legislations or enactments made by the legislature can be subjected to judicial review, but the absence of remedy of judicial review against judicial legislations made under Article 142 of the Constitution, impacts the broad separation of powers between the legislature and the judiciary?

IX. Whether in view of the fact that the powers vested in the High Courts by virtue of Articles 226 and 227 of the Constitution of India are part of the Basic Structure of the Constitution in light of the law propounded by the Supreme Court in L. Chandra Kumar, the directions in paras 34, 36, 37 of Asian Resurfacing by prescribing a strict time limit of interim orders and curtailing the powers of High Courts under Articles 226 and 227 of the Constitution of India to extend interim orders beyond that period damage the Basic Structure of the Constitution of India?

X. Whether in view of the findings of this Court that compliance of directions in paras 34, 36, 37 of Asian Resurfacing is not realistically feasible, and automatic vacation of stay orders in compliance of the said directions in Asian Resurfacing is visiting litigants with adverse consequences for no fault of theirs, and that the trial courts are disregarding interim orders passed by this Court, paired with the inability of the High Court to provide redress to the litigants is adversely impacting administration of justice by the High Court, the said directions issued in Asian Resurfacing are liable to be reconsidered?

The applications were denied, while the effort taken by the members of the Bar was appreciated.

Cause Title: Chandrapal Singh vs State of UP & Anr.

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