Role Of 'Constitutional Debate' In Overruling Of Asian Resurfacing Judgment

In High Court Bar Association Allahabad vs State Of Uttar Pradesh 2024 INSC 150, the Supreme Court overruled its six year old judgment in Asian Resurfacing Of Road Agency Pvt. Ltd. vs CBI [2018] 2 S.C.R. 1045 which introduced the concept of ‘automatic vacation of stay orders’.

A three judges bench in Asian Resurfacing had directed as follows: (1) in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended (ii) in cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order. The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalised. (iii) The trial court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of the period of stay, proceedings can commence unless order of extension of stay is produced.

In High Court Bar Association, the Constitution Bench overruled this judgment for the following reasons: (a) Such blanket directions could not be issued in the exercise of the jurisdiction under Article 142 of the Constitution of India.(b) These directions virtually amount to judicial legislation. Only the legislature can provide that cases of a particular category should be decided within a specific time. (c) There was no lis before the Court arising out of the orders of stay granted in different categories of cases pending before the various High Courts. Thus it delved into an issue which did not arise for consideration. (d) The power of the High Court under Article 227 includes the power to stay the proceedings before such Courts. By a blanket direction in the exercise of power under Article 142 of the Constitution of India, Supreme Court cannot interfere with the jurisdiction conferred on the High Court of granting interim relief by limiting its jurisdiction to pass interim orders valid only for six months at a time.

This judgment was delivered in an appeal filed by the Allahabad HC Bar Association against the judgment of the Allahabad High Court. Before the High Court, the High Court Bar Association and others highlighted the widespread complications caused by the implementation of the directions issued in Asian Resurfacing in the State of U.P.

Article 141 of the Constitution provides that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Further, in South Central Railway Employees Co-Op. Credit Society Employees Union vs B. Yashodabai 2015 (2) SCC 727 , it was held that it is not open to the High Court to hold that the judgment delivered by the Supreme Court was per incuriam. Else, it warned that there would be total chaos in this country because in that case there would be no finality to any order passed by the Supreme Court. When a higher court has rendered a particular decision, the said decision must be followed by a subordinate or lower court unless it is distinguished or overruled or set aside, it was observed.

In this context, it is relevant to cite a decision of the Karnataka High Court which dealt with Asian Resurfacing. In Syed Ifthekar Ahmed vs State AIRonline 2018 Kar 1214, the Karnataka High Court observed: It is not for this Court to question the reasoning given by the Apex Court; it is for this Court to follow the principles enunciated by the Apex Court. Moreover, it is not for this Court to declare a decision of the Apex Court as being "per incuriam". To do so, is to indulge in judicial indiscipline. A court of law cannot commit indiscipline, for it is the upholder of rule of law.

But the Allahabad High Court, in this case, followed a novel route by invoking Article 132. It dismissed these applications but did not stop at that. The High Court granted the applicants the Certificate For Appeal to the Supreme Court under Article 132. It also framed ten substantial questions doubting the correctness of Asian Resurfacing judgment. According to the High Court, Article 132 envisages an internal mechanism of discourse of legal ideas and issues between the Constitutional Courts. “The framers of the Constitution by inserting Article 132 clearly envisioned free exchange and frank speech in the discourse between Constitutional Courts… When the 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.”, the court said.

Thus the High Court ignited a Constitutional Debate which made the Apex Court refer the matter to the constitution bench to answer these two questions: a) Whether this Court, in the exercise of its jurisdiction under Article 142 of the Constitution of India, 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? (b) Whether this Court, in the exercise of its jurisdiction under Article 142 of the Constitution of India, can direct the High Courts to decide pending cases in which interim orders of stay of proceedings has been granted on a day-to-day basis and within a fixed period? The Constitution Bench answered both the issues in the negative. Thus the ‘Constitutional Debate’ ended with this Constitution Bench judgment overruling Asian Resurfacing.

Had the Allahabad High Court just dismissed the applications without granting the certificate, perhaps the fate would have been different. The High Courts, by invoking Article 132, in appropriate cases, can empower the litigants to fight for a just cause even if there is a Supreme Court judgment on their way. Instead of merely sympathizing with such litigants who have a just cause, the High Courts can empathize with them by sharing their concerns in the form of substantial questions of law.

So what if a High Court finds that a judgment of the Supreme Court cited before it is in conflict with the law laid down in a judgment by a larger bench of the Supreme Court itself? Should it just feel bound by it or should it follow the way lit up by the Allahabad High Court? Let us hope that we will see more such ‘constitutional debates’ between Constitutional Courts.

Author is an Advocate practising in the High Court Of Kerala and also a Consulting Editor at Verdictum.

The opinions expressed in this article are those of the author.