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

On Friday, a three-judge bench of the Allahabad High Court rejected the reference made to it regarding consideration of the directions given by the Supreme Court in paragraphs 34, 36, and 37 of the judgment in Asian Resurfacing of Road Agency Private Limited and Another vs. Central Bureau of Investigation 2018. 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? ...

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

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