Does 'Asian Resurfacing' Judgment Require Reconsideration?: Allahabad HC Larger Bench Frames 10 Legal Questions For SC's Deliberation

The bench comprising of Chief Justice Pritinker Diwaker, Justice Ashwani Kumar Mishra and Justice Ajay Bhanot however framed the following ten questions of law and granted a certificate to appeal to the applicants and similarly circumstanced people to approach the Supreme Court.

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

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

III. Whether the directions in paras 34, 36, 37 of the Asian Resurfacing (supra) 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 (supra) 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 (supra) 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 (supra) and P. Ramachandra Rao (supra)? Alternatively whether there is conflict between Articles 142 and 141 of the Constitution of India arising in the context of Asian Resurfacing (supra) and whether Article 142 will control Article 141?

VI. Whether the directions in paras 34, 36, 37 of Asian Resurfacing (supra) 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.178 and read down by the Bombay High Court in Narang Overseas Pvt. Ltd. Vs Income Tax Appellate Tribunal and others179, the Gujarat High Court in CIT Vs Vodafone Essar Gujarat Ltd.180, and finally read down by the Supreme Court inDCIT Vs Pepsi Foods Ltd.181? If the answer is in the negative whether the said directions in Asian Resurfacing (supra) are liable to be implemented?

VII. Alternatively whether “judicial legislation” made under Article 142 vide Asian Resurfacing (supra) 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 (supra), the directions in paras 34, 36, 37 of Asian Resurfacing (supra) 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 (supra) is not realistically feasible, and 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, 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 (supra) are liable to be reconsidered?

Interestingly, the Supreme Court, in September this year, orally remarked that its order in the Asian Resurfacing case directing automatic vacation of stay granted by any court including High Courts in civil or criminal proceedings after 6 months 'requires serious consideration' as it is creating problems.

About Asian Resurfacing Judgment

Essentially, in the Asian Resurfacing Judgment, 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. This was reiterated by the Supreme Court in October 2020.

For speedy justice, the Apex Court went on to issue directions to all High Court regarding cases where interim orders had been granted to the effect that where a matter remains pending for a longer period, the order stay would automatically be vacated after six months unless the stay extension was granted by way of a speaking order “showing an extraordinary situation where continuing stay was to be preferred to the final disposal of trial by the trial court.”

In paragraph 37 of the judgment, the Supreme Court had extended the aforesaid mandate on the PC Act or all other civil or criminal cases pending before the High Court or other Courts where an interim stay has been granted.

Factual Background

In an application under Section 482 CrPC, an interim order was granted in favour of the applicant. Subsequently, no counter-affidavit was filed by the informant and the State. The matter, though listed on several occasions, could not be taken up due to the paucity of time, accordingly, the interim order, though in operation, was not extended by a fresh order by the Court.

The first informant then approached the Trial Court to contend that the interim order stood vacated in view of the decision of the Top Court in the Asian Resurfacing case. Accordingly, the trial proceedings commenced and non-bailable warrants were issued against the applicant, leading to his arrest. Subsequently, he was granted bail by the High Court.

During the hearing of the bail application along with the Section 482 application, intervention was made by several counsels of the High Court before Justice Bhanot, bringing forth the complications of the directions issued in Asian Resurfacing. Accordingly, Justice Bhanot framed the following questions of law for consideration by a larger bench:

(i) Whether the Single Judge of this Court or the High Court can consider and interpret the judgment of the Supreme Court rendered in Asian Resurfacing (supra)?

(ii) Whether this issue is liable to be referred to a Full Bench, if yes, the relevant provisions and authorities of law?

(iii) Whether the High Court can interpret the Asian Resurfacing (supra) and pass orders in regard to its implementation in the wake of Asian Resurfacing-IV(sic.) rendered on 25.04.2022?

(iv) Whether the issue raise substantial questions relating to the interpretation of the Constitution of India?

Applications Filed By Member of The Bar

In the applications filed by the members of the Bar, it was stated that matters are often not taken up for hearing due to paucity of time in the Court, consequently, stay is not extended by Courts.

It was also argued that the Trial Courts do not consider the interim orders which are extended by the High Court citing paucity of time.

It was further submitted that it is not the fault of the parties who have to suffer due to the automatic vacation of interim orders by operation of the directions in Asian Resurfacing. Parties suffer imprisonment and/or other civil and criminal consequences as a result of the automatic stay vacation.

In the application, as noted by the Court, it was submitted thus:

“15. That a unique practical difficulty has arisen by the operation of the directives issued in the Asian Resurfacing Case. Thus, as an unintended result of the operation of Asian Resurfacing(supra), the interim orders get vacated exposing the litigants to Non-Bailable Warrants (in criminal cases) and eviction, dispossession, and demolition in civil cases without any fault of theirs. In fact, without any express change in circumstances, the litigant faces adverse consequences having detrimental effect on his fundamental rights.”

Noting that the prayers made before it effectively sought clarifications of the directions issued by the Supreme Court in paras 34, 36, 37 in Asian Resurfacing. Similar applications were made in various cases, seeking modification of the directions in Asian Resurfacing.

Reference to The Larger Bench

A bench of Chief Justice Pritinker Diwaker, Justice Ashwani Kumar Mishra and Justice Ajay Bhanot, after hearing the matter at length, observed thus:

“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.”

Importantly, the Court held that Article 132 is the only recourse available to the High Court in such a situation where the questions raised were grave enough to go to the heart of constitutional interpretation and the root of raison detre of the High Court.

Accordingly, the abovementioned questions of law were framed for consideration by the Supreme Court and the HC also granted a certificate to appeal to the applicants before the High Court and other similarly circumstanced people to approach SC.

Appearances: Shri Gaurav Mehrotra, assisted by Shri Akbar Khan; Ms. Maria Fatima, Ms. Alina, Shri Swapnil Kumar, Shri Sushil Shukla, Shri Nitin Sharma, Shri Rahul Agarwal, Shri Imranullah, Shri Rajrshi Gupta, Shri Kunal Shah, Ms. Gunjan Jadwani, Shri Ram Kaushik, Shri Saurabh Pandey, Shri Vishnu Behari Tewari, Shri Tarun Agrawal, Shri Nadeem Murtaza. Shri Manish Goyal, Additional Advocate General assisted by Shri Rupak Chaubey, A.G.A.-I, Ms. Anjali Goklani appeared for the State of Uttar Pradesh.

Case title - Chandrapal Singh vs. State of U.P. and Another 2023 LiveLaw (AB) 416

Case Citation: 2023 LiveLaw (AB) 416

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