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Above: Supreme Court/Photo: Bhavana Gaur

The apex court should be saluted for laying down a new regime where stay in a trial will lapse after six months unless extended by a speaking order. This marks a new adjudicatory leadership

 

By Prof Upendra Baxi

Prince Hamlet asked the all-important question: “To be or not to be– that is the question.” A similar existential question is involved in the exercise of powers of judicial review to issue a stay or interim or interlocutory orders (referred to as SIIO). The powers to issue SIIO are located in various civil and criminal codes and statutes. But they are also to be discovered in the historic and inherent power of courts of record to achieve the ends of administration of justice and subserve the constitutional basic or fundamental rights.

However, SIIO have wide-ranging systemic and dilatory effects, making judicial delays now endemic in the Indian legal system. As the Supreme Court itself observed in 2004, it is notoriously well known that “trials of corruption cases are not permitted to proceed further easily” and a trial “takes anything up to 20 years in completion”. And civil suits in India provide an unwelcome example of inter-generational justice, often extending to three generations. Although the Court addressed primarily criminal trials in a recent case, the wide-ranging SIIO norms and principles remain equally applicable to the civil law domain as well.

Dilemmatic judicial approaches and perspectives also concern the fundamental right of lawyers to exercise the right to representation and legislative attempts or achievements directed to secure an equitable and efficient system of justice. How these cohabit with judicial review powers as an essential feature of the basic structure of the Constitution is an important issue.

Two recent Supreme Court decisions remain crucial for understanding a new normative regime of SIIO. Apparently, these are unrelated: Asian Resurfacing of Road Agency vs Central Bureau of Investigation (March 28, 2018, Justice AK Goel and Navin Sinha with Justice Rohinton F Nariman writing a separate concurring judgment; simply called “Resurfacing” hereafter) and Lber Laloo vs All Dimasa Students Union (July 3, 2019; Justices Ashok Bhushan and KM Joseph; hereafter called “Meghalaya decision”). But in my conjoint reading, they are concerned with the new normative SIIO regime, one in the sphere of corruption, the other in the sphere of environmental regulation of eco-indifferent regime of governance. And corruption and environmental degradation are systemically related, often passing on as development and governance. Both were judicial decisions affirming distinctive constitutional goals and remain worthy of a conjoint reading. In this article, because of reasons of space, we will focus on “Resurfacing”, leaving the consideration of the Meghalaya decision for next week.

TIMELINE OF RESURFACING

On the face of the decision, there was only an insignificant delay of nearly five years in the Supreme Court’s disposal of the matter; it should be noted that the bench of two justices referred the matter to a larger bench on September 9, 2003. However, the original cause of action occurred a long while ago during 1997-1998 when some wrongful loss was allegedly caused to the MCD by signing of fake invoices of oil companies relating to transportation of bitumen for use in dense carpeting works of roads in Delhi. We do not know from the judicial archives what happened to roadworthiness, but we do know that it took a very long time—some would say inordinate—for the consumers of justice to know about the interpretive entanglements.

All proceedings on the charges initially framed by the CBI judge on February 1, 2007, were stayed till the consideration of the Criminal Revision No 321 of 2007 before the Delhi High Court against the order framing charges. The Revision Petition was converted into Writ Petition (Criminal) No 352 of 2010.

If we were to take 1997-98 as the beg­inning of proceedings, the ultimate date of disposal seems to be March 8, 2018. Even then, it is not a final disposition on facts; that is still to take place. Wait, the story is not yet over: the referring Supreme Court bench ordered that “further proceedings before the trial Court shall remain stayed”; the larger bench enigmatically ordered that “along with other connected matters, may now be listed before an appropriate bench as first matter, subject to overnight part-heard, on Wednesday, the 18th April, 2018”. Not being a practising lawyer, I have not been able to determine what actually happened in this as well all other cases under the old regime of SIIO; but it would be reasonable to assume that this sorting out will take some further adjudicative time. After all, nothing is an instant happening in the judicial universe, and this may be a good thing, too.

THE NEW REGIME OF SIIO

The Supreme Court valiantly cuts to the interpretive judicial thicket. It decisively answers all the major questions and puts to rest the interpretive chaos. It declares that the “order framing charge is not purely an interlocutory order nor a final order” and that the jurisdiction of the “High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 CrPC or Article 227 of the Constitution”.

However, that jurisdiction is “to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered”. Incidentally, the Supreme Court seems to have missed the valued opportunity of reiterating its own enunciations of the right to speedy trial (India Legal, May 14, 2018 issue). That right is, of course, now a “legislative mandate”, but it is also a judicially recognised Article 21 right, although intentionally excluded (in the fundamental rights part) by the Constitution makers.

The most innovative aspect of the ruling categorically says: “In all pending matters before the High Courts or other courts relating to PC Act or all other civil or criminal cases, where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from today unless extended by a speaking order on above parameters.” And this is also true of “civil and criminal appellate/revisional courts under the jurisdiction of the High Courts”. The automatic lapsing of stay is welcome and its renewal would involve the exercise of judicial discretion. At the same time, the speaking orders remain liable to further litigation.

What is more, the trial courts “may, on expiry of above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced”. The High Courts are required now to also issue instructions to this effect and it needs to be emphasised that “the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to reappreciate the matter. Even where such challenge is entertained and stay is granted, the matter must be decided on day-to-day basis so that stay does not operate for an unduly long period”. Though no mandatory time limit may be fixed, a period of three months is suggested.

Justice Nariman (in a learned concurrence which remains of great pertinence for the so-called differences of opinion with the High Court and the Supreme Court) admonishes us all to read “judgment… as a whole, and if there are conflicting parts, they have to be reconciled harmoniously in order to yield a result that will accord with an earlier decision of the same bench strength”. This means that courts should wrestle the complexity of judicial discourse, and where necessary, recourse to a creative and harmonic understanding of binding precedents. In plain words, it is the judicial duty of all to strive for a harmonious interpretation of prior judicial discourse, rather than too quickly or readily read it as deeply conflicted.

Resurfacing is unanimous in holding that nothing “contained in Section 397 (2) can limit or affect the exercise of the inherent power by the High Court” in the “few and far between situations”. Nor “does it stand to reason to say that inherent power of the High Court can’t be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused up to the end”.

CONCLUSION

The Bar will, henceforth, prevent any abuse of the process of the Court in seeking justice. Nor would the courts, vested with inherent judicial review powers, allow any misappropriation of the rule and role of the law enabling it to be a programme of personal, group, or political vendetta.

It is too early to say empirically how the new SIIO normative regime has worked India-wide. But it is not premature to salute the Supreme Court for its high normative achievement, marking the emergence of a new organisational adjudicatory leadership of the nation.

—The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer

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