The Supreme Court on Monday has notified a 5-judge Constitution bench headed by Chief Justice of India DY Chandrachud for reconsidering its 2018 judgement that had held that the stay granted by a lower court or high court in civil and criminal cases will automatically expire after 6 months unless extended specifically.
According to the notification published on the top court’s website, the Constitution bench will include Justices Abhay S Oka, JB Pardiwala, Pankaj Mithal and Manoj Misra.
The Constitution bench will commence hearing the issue after it concludes the proceedings in another case relating to the constitutional validity of section 6A of the Citizenship Act relating to illegal immigrants in Assam.
On December 1, the top court, referred to a 5-judge Constitution bench for reconsideration of its 2018 judgement on grant of stay by courts.
A 3-judge bench headed by the CJI took note of the plea of senior advocate Rakesh Dwivedi, appearing for the High Court Bar Association of Allahabad, that 2018 judgement takes away the power available to high courts under Article 226 of the Constitution.
Article 226 of the Constitution gives wide powers to the high courts under which they can issue writs & orders to any person or government for enforcement of fundamental rights and for other purposes.
The bench sought assistance of either the attorney/solicitor general to deal with the legal issue arising out of the judgement.
A 3-judge bench in its verdict in the case of Asian Resurfacing of Road Agency P Ltd Director Vs CBI held that the interim order of stay granted by courts, including high courts, will stand vacated automatically unless they are specifically extended.
Consequently, no trial or proceedings can remain stayed after a period of 6 months.
However, later the apex court clarified that the judgement will not be applicable if the stay order has been passed by it.
The CJI-led bench prima facie agreed with the submissions of Dwivedi and said that his petition will be referred to a 5-judge bench as the impugned judgement was delivered by a 3-judge bench of the top court.
Referring to the findings of the 2018 judgement, the bench stated the directions indicated that in all matters, whether civil or criminal, orders of stay, once granted, therefore should not be continued beyond 6 months unless specifically extended.
The bench stated, “We have reservations in regard to the correctness of the broad formulation of the principles in the above terms. We are of the view that the principle which has been laid down in the above decision to the effect that a stay shall be automatically stand vacated is liable to result in a miscarriage of justice.”
