Automatic Stay Vacation - Reference Against 'Asian Resurfacing' : Live Updates From Supreme Court Hearing

Dwivedi: This direction for automatic vacation of interim order lays down a general norm and therefore it is in the nature of judicial legislation. This court doesn't engage in judicial legislation.

SG: Asia Resurfacing essentially concentrates on stay of trial. Stay of trial would arise either in 482 or other jurisdictions. Not in 226. 226 we would be taking support to substantiate other submissions.

SG: 226 may not require your lords attention in this matter.

Dwivedi: The court will also have to determine whether 226(3) is mandatory or directory?

Dwivedi: It is interference with the process of judicial review. If challenged, it will be liable to be struck down. But the HCs in some cases have stated that this is direct...

CJI: What do you have to say on Art 226(3)?

Dwivedi: Article 226 is a basic part of the structure...Now by constitutional amendment you're deciding that it'll get automatically vacated. So who is applying the mind? 

SG Mehta: In some cases there are contempt cases filed against the judges. In some states like Punjab and Haryana...so I join my learned friend that the solution perhaps is more severe than the disease.

Dwivedi: So the question is do we come up with some sort of formula to ensure there is application of mind...this is automatic vacation. So SC is not applying mind, the HC is also not applying

Dwivedi: And give reasons for that. And that can be done in any court. It can happen in this court too.

CJI: What is the solution? Because if a judge grants a stay in a 482, nothing is going to come up...

Dwivedi: Do we find a solution which is greater than the disease? We have to create in every discipline- civil, revisions, appeals- separate bench which will consider extension

Dwivedi: In Allahabad, it is compounded by the strikes.