Holding

The Supreme Court held that under Article 142 it cannot issue blanket directions that automatically vacate all High Court interim stays after a set period or compel day‑to‑day disposal, as such orders violate natural justice, exceed the Court's jurisdiction, and impinge on the constitutional powers of the High Courts.

Summary

The Supreme Court was asked to consider whether, under its Article 142 powers, it could issue blanket directions that all interim stays granted by High Courts should automatically lapse after six months and that High Courts must dispose of such cases on a day‑to‑day basis. The Court examined the object of interim orders, the power of High Courts to modify or vacate such orders, and the principle that an order cannot be terminated merely because of the passage of time without hearing. It held that interim relief is granted to protect the final relief sought, and High Courts may vacate or modify stays on specific grounds such as abuse of process or material change of circumstances. The Court ruled that automatic vacation of stays on the basis of time alone violates natural justice and exceeds the permissible scope of Article 142, which cannot be used to legislate or curtail the constitutional jurisdiction of High Courts under Articles 226 and 227. Consequently, the directions in Asian Resurfacing ordering automatic expiry of stays and day‑to‑day disposal were rejected, and the reference was answered in the negative. The Court affirmed that any stay not expressly time‑bound remains in force until the main case is decided or a proper application for vacation is heard.

Issues considered

What is the object behind passing interim orders and the scope of High Courts' power to vacate or modify interim relief?
Whether an interim order can come to an end automatically only due to the lapse of time?
What is the scope of exercise of powers under Article 142 of the Constitution in relation to High Courts' jurisdiction?
Whether the Supreme Court, in exercise of Article 142, can order automatic vacation of all interim orders of the High Courts after a certain period?
Whether the Supreme Court can direct High Courts to decide pending cases with interim stays on a day‑to‑day basis within a fixed period?
Should the Court decide an issue that does not arise for consideration?
How should clause (3) of Article 226 be interpreted with respect to automatic vacation of ex‑parte interim orders?

Legislation cited

Code of Civil Procedure, 1908
Code of Criminal Procedure, 1973s. 309
Constitution (Forty‑fourth Amendment) Act, 1978
Constitution of Indias. Art. 139-A, s. Art. 14, s. Art. 141, s. Art. 142, s. Art. 144, s. Art. 19(1)(a), s. Art. 21, s. Art. 226(3), s. Art. 227, s. Art. 32
Income Tax Act, 1961s. 254(2‑A)
Prevention of Corruption Act, 1988

Subjects

Interim ordersVacation or modification of interim reliefAutomatic end of interim reliefLapse of timeEnforcement of decrees and orders of Supreme Court and orders as to discoveryInterim orders of the High CourtsInterim orders of stay of proceedingsDay-to-day basis hearingPosition of the High CourtsHigh Court’s power of superintendenceIssue not arising for considerationDeciding pending cases in a time‑bound mannerEffect of directions issued by the Constitutional CourtsProcedure to be adopted by High Courts while passing interim order

Judgment

[2024] 2 S.C.R. 946 : 2024 INSC 150

High Court Bar Association, Allahabad
v.
State of U.P. & Ors.
Criminal Appeal No. 3589 of 2023
29 February 2024
[Dr Dhananjaya Y. Chandrachud, CJI, Abhay S. Oka,*
J. B. Pardiwala, Manoj Misra and Pankaj Mithal,* JJ.]

Issue for Consideration
What is the object behind passing interim orders; Whether the
High Courts are empowered to vacate or modify interim relief;
Whether an interim order can come to an end automatically only
due to the lapse of time; What is the scope of exercise of powers
u/Art. 142 of the Constitution; Position of the High Courts and its
power of superintendence; Whether the Court should deal with
an issue not arising for consideration; Effect of directions issued
by the Constitutional Courts to decide pending cases in a time-
bound manner; Whether the Supreme Court, in the exercise of
its jurisdiction u/Art. 142 of the Constitution of India, can order
automatic vacation of all interim orders of the High Courts of
staying proceedings of Civil and Criminal cases on the expiry of
a certain period; Whether the Supreme Court, in the exercise of
its jurisdiction u/Art. 142 of the Constitution of India, can direct the
High Courts to decide pending cases in which interim orders of
stay of proceedings has been granted on a day-to-day basis and
within a fixed period; Procedure to be adopted by High Courts
while passing interim order of stay of proceedings and for dealing
with the applications for vacating interim stay.

Headnotes
Interim Orders – Object of:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) An
order of interim relief is usually granted in the aid of the final relief
sought in the case – An occasion for passing an order of stay of
the proceedings normally arises when the High Court is dealing
with a challenge to an interim or interlocutory order passed during
the pendency of the main case before a trial or appellate Court –
The High Court can grant relief of the stay of hearing of the main
* Author
[2024] 2 S.C.R. 947

High Court Bar Association, Allahabad v. State of U.P. & Ors.

proceedings on being satisfied that a prima facie case is made out
and that the failure to stay the proceedings before the concerned
Court in all probability may render the remedy adopted infructuous
– When the High Court passes an interim order of stay, though
the interim order may not expressly say so, the three factors, viz;
prima facie case, irreparable loss, and balance of convenience, are
always in the back of the judges’ minds – Though interim orders
of stay of proceedings cannot be routinely passed as a matter of
course, it cannot be said that such orders can be passed only in
exceptional cases – Nevertheless, the High Courts, while passing
orders of stay in serious cases like the offences under the PC Act
or serious offences against women and children, must be more
cautious and circumspect. [Para 13]
Interim Orders – Whether the High Courts are empowered to
vacate or modify interim relief:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) The
High Courts are always empowered to vacate or modify an order
of interim relief passed after hearing the parties on the following,
amongst other grounds: - (a)If a litigant, after getting an order
of stay, deliberately prolongs the proceedings either by seeking
adjournments on unwarranted grounds or by remaining absent
when the main case in which interim relief is granted is called out
for hearing before the High Court with the object of taking undue
advantage of the order of stay; (b)The High Court finds that the
order of interim relief is granted as a result of either suppression
or misrepresentation of material facts by the party in whose favour
the interim order of stay has been made; and (c) The High Court
finds that there is a material change in circumstances requiring
interference with the interim order passed earlier – In a given
case, a long passage of time may bring about a material change
in circumstances – These grounds are not exhaustive – There
can be other valid grounds for vacating an order of stay. [Para 15]
Interim Orders – Whether an interim order can come to an
end automatically only due to the lapse of time:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.)
Elementary principles of natural justice, which are well recognised
in jurisprudence, mandate that an order of vacating interim relief
or modification of the interim relief is passed only after hearing all
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the affected parties – An order of vacating interim relief passed
without hearing the beneficiary of the order is against the basic
tenets of justice – Application of mind is an essential part of any
decision-making process – Therefore, without application of mind,
an order of interim stay cannot be vacated only on the ground of
lapse of time when the litigant is not responsible for the delay – An
interim order lawfully passed by a Court after hearing all contesting
parties is not rendered illegal only due to the long passage of
time. [Para 16]
Constitution of India – What is the scope of exercise of powers
u/Art. 142 of the Constitution:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.
Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) Important
parameters for the exercise of the jurisdiction u/Art. 142 of the
Constitution of India which are relevant for deciding the reference
are as follows: (i) The jurisdiction can be exercised to do complete
justice between the parties before the Court – It cannot be exercised
to nullify the benefits derived by a large number of litigants based
on judicial orders validly passed in their favour who are not parties
to the proceedings before this Court; (ii) Article 142 does not
empower this Court to ignore the substantive rights of the litigants;
(iii) While exercising the jurisdiction u/Art. 142 of the Constitution
of India, this Court can always issue procedural directions to the
Courts for streamlining procedural aspects and ironing out the
creases in the procedural laws to ensure expeditious and timely
disposal of cases – However, while doing so, this Court cannot
affect the substantive rights of those litigants who are not parties
to the case before it – The right to be heard before an adverse
order is passed is not a matter of procedure but a substantive right;
and (iv) The power of this Court u/Art. 142 cannot be exercised to
defeat the principles of natural justice, which are an integral part
of jurisprudence. [Para 37]
Constitution of India – Position of the High Courts and its
power of superintendence:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.
Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) A High
Court is also a constitutional Court – It is well settled that it is
not judicially subordinate to the Supreme Court – A High Court is
constitutionally independent of the Supreme Court of India – The
power of the High Court u/Art. 227 of the Constitution to have
[2024] 2 S.C.R. 949

High Court Bar Association, Allahabad v. State of U.P. & Ors.

judicial superintendence over all the Courts within its jurisdiction
will include the power to stay the proceedings before such Courts
– By a blanket direction in the exercise of power u/Art. 142 of the
Constitution of India, the Supreme Court cannot interfere with the
jurisdiction conferred on the High Court of granting interim relief
by limiting its jurisdiction to pass interim orders valid only for six
months at a time – Putting such constraints on the power of the
High Court will also amount to making a dent on the jurisdiction of
the High Courts u/Art. 226 of the Constitution, which is an essential
feature that forms part of the basic structure of the Constitution.
[Paras 23 and 24]
Practice and Procedure – Whether the Court should deal with
an issue not arising for consideration:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) In the
case of Sanjeev Coke Manufacturing Company, a Constitution
Bench of the Supreme Court held that (Judges) are not authorised
to make disembodied pronouncements on serious and cloudy
issues of constitutional policy without battle lines being properly
drawn – Judicial pronouncements cannot be immaculate legal
conceptions – It is but right that no important point of law should
be decided without a proper lis between parties properly ranged
on either side and a crossing of the swords – It is inexpedient for
the Supreme Court to delve into problems which do not arise and
express opinion thereon. [Para 25]
Constitution of India – Art. 226 (3) – Making of an application
for vacating interim relief:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) On its
plain reading, clause (3) is applicable only when an interim relief
is granted without furnishing a copy of the writ petition along with
supporting documents to the opposite party and without hearing
the opposite party – Even assuming that clause (3) is not directory,
it provides for an automatic vacation of interim relief only if the
aggrieved party makes an application for vacating the interim relief
and when the application for vacating stay is not heard within the
time specified – Clause (3) will not apply when an interim order in
a writ petition u/Art. 226 is passed after the service of a copy of
the writ petition on all concerned parties and after giving them an
opportunity of being heard – It applies only to ex-parte ad interim
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orders. [Para 26] Per Pankaj Mithal, J. (concurring) It is noticeable
that u/Art. 226(3) of the Constitution of India, the automatic vacation
of the stay order envisages making of an application to the High
Court for the vacation of the interim stay order – Therefore, filing
of an application for vacating the stay order is a sine qua non for
triggering the automatic vacation of the stay order u/Art. 226(3) if
such an application is not decided within the time prescribed of
two weeks. [Para 6]
Directions by Supreme Court – Effect of directions issued by
the Constitutional Courts to decide pending cases in a time-
bound manner – The three Judges Bench of the Supreme
Court issued various directions in Asian Resurfacing – The
net effect of the directions issued in paragraphs 36 and 37 of
Asian Resurfacing is that the petition in which the High Court
has granted a stay of the proceedings of the trial, must be
decided within a maximum period of six months – If it is not
decided within six months, the interim stay will be vacated
automatically, virtually making the pending case infructuous:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya
Y. Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) The
Constitution Benches of the Supreme Court have considered the
issue of fixing timelines for the disposal of cases in the cases of
Abdul Rehman Antulay and P. Ramachandra Rao – The principles
laid down in the decision will apply even to civil cases before the
trial courts – The same principles will also apply to a direction
issued to the High Courts to decide cases on a day-to-day basis
or within a specific time – Thus, the directions of the Court that
provide for automatic vacation of the order of stay and the disposal
of all cases in which a stay has been granted on a day-to-day
basis virtually amount to judicial legislation – The jurisdiction of
this Court cannot be exercised to make such a judicial legislation
– Only the legislature can provide that cases of a particular
category should be decided within a specific time – There are
many statutes which incorporate such provisions – However,
all such provisions are usually held to be directory – A judicial
notice will have to be taken of the fact that in all the High Courts
of larger strength having jurisdiction over larger States, the daily
cause lists of individual Benches of the cases of the aforesaid
categories are of more than a hundred matters – Therefore, once
a case is entertained by the High Court and the stay is granted,
the case has a long life – The High Courts cannot be expected to
[2024] 2 S.C.R. 951

High Court Bar Association, Allahabad v. State of U.P. & Ors.

decide, on a priority basis or a day-to-day basis, only those cases
in which a stay of proceedings has been granted while ignoring
several other categories of cases that may require more priority
to be given – Therefore, constitutional Courts should not normally
fix a time-bound schedule for disposal of cases pending in any
Court – The pattern of pendency of various categories of cases
pending in every Court, including High Courts, is different – The
situation at the grassroots level is better known to the judges
of the concerned Courts – Therefore, the issue of giving out-of
turn priority to certain cases should be best left to the concerned
Courts – The orders fixing the outer limit for the disposal of cases
should be passed only in exceptional circumstances to meet
extraordinary situations. [Paras 28, 29, 30, 32, 33]
Constitution of India – Interim Orders – (i) Whether the
Supreme Court, in the exercise of its jurisdiction u/Art. 142 of
the Constitution of India, can order automatic vacation of all
interim orders of the High Courts of staying proceedings of
Civil and Criminal cases on the expiry of a certain period; (ii)
Whether the Supreme Court, in the exercise of its jurisdiction
u/Art. 142 of the Constitution of India, can direct the High
Courts to decide pending cases in which interim orders of
stay of proceedings has been granted on a day-to-day basis
and within a fixed period:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.
Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) The three
Judges Bench of the Supreme Court decided the case of Asian
Resurfacing and issued directions in paragraphs 36 and 37 – The
direction issued in paragraph 36 was regarding automatic vacation
of stay and direction in paragragh 37 was for conducting day-to-day
hearing within a time frame – The present Bench of the Judges
does not concur with the three judges Bench which decided the
case of Asian Resurfacing and issued directions in paragraphs 36
and 37 – Both directions were issued in the exercise of jurisdiction
u/Art.142 of the Constitution – There cannot be automatic vacation
of stay granted by the High Court – The direction issued (in the
case of Asian Resurfacing) to decide all the cases in which an
interim stay has been granted on a day-to-day basis within a time
frame is also not approved – Blanket directions cannot be issued
in the exercise of the jurisdiction u/Art. 142 of the Constitution
of India – Both the questions framed above are answered in the
negative. [Paras 12, 36]
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Interim Orders – Stay order cannot be automatically vacated:
Held: Per Pankaj Mithal, J. (concurring): The stay order granted
in any proceedings would not automatically stand vacated on the
expiry of a particular period until and unless an application to that
effect has been filed by the other side and is decided following the
principles of natural justice by a speaking order – It is expedient
in the interest of justice to provide that a reasoned stay order
once granted in any civil or criminal proceedings, if not specified
to be time bound, would remain in operation till the decision of
the main matter or until and unless an application is moved for its
vacation and a speaking order is passed adhering to the principles
of natural justice either extending, modifying, varying or vacating
the same. [Paras 7 and 8]
Practice and Procedure – Procedure to be adopted by High
Courts while passing interim order of stay of proceedings
and for dealing with the applications for vacating interim stay:
Held: (Per Abhay S. Oka, J. for himself and Dr. Dhananjaya Y.
Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.) To avoid
any prejudice to the opposite parties, while granting ex-parte ad-
interim relief without hearing the affected parties, the High Courts
should normally grant ad-interim relief for a limited duration – After
hearing the contesting parties, the Court may or may not confirm
the earlier ad-interim order – Ad-interim relief, once granted, can be
vacated or affirmed only after application of mind by the concerned
Court – Hence, the Courts must give necessary priority to the
hearing of the prayer for interim relief where adinterim relief has
been granted – Though the High Court is not expected to record
detailed reasons while dealing with the prayer for the grant of stay
or interim relief, the order must give sufficient indication of the
application of mind to the relevant factors – An interim order passed
after hearing the contesting parties cannot be vacated by the High
Court without giving sufficient opportunity of being heard to the party
whose prayer for interim relief has been granted – Even if interim
relief is granted after hearing both sides, as observed earlier, the
aggrieved party is not precluded from applying for vacating the
same on the available grounds – In such a case, the High Court
must give necessary priority to the hearing of applications for
vacating the stay, if the main case cannot be immediately taken
up for hearing – Applications for vacating interim reliefs cannot
be kept pending for an inordinately long time. [Paras 34 and 35]
[2024] 2 S.C.R. 953

High Court Bar Association, Allahabad v. State of U.P. & Ors.

Case Law Cited
Asian Resurfacing of Road Agency Private Limited &
Anr. v. Central Bureau of Investigation, [2018] 2 SCR
1045 : (2018) 16 SCC 299 – Reconsidered.
Prem Chand Garg & Anr. v. The Excise Commissioner,
U.P. and Ors., [1963] Suppl. 1 SCR 885 : (1962)
SCC Online SC 37; Supreme Court Bar Association
v. Union of India & Anr., [1998] 2 SCR 795 : (1998) 4
SCC 409; L. Chandra Kumar v. Union of India & Ors.,
[1997] 2 SCR 1186 : (1997) 3 SCC 261; Sanjeev Coke
Manufacturing Company v. M/s. Bharat Coking Coal Ltd.
& Anr, [1983] 1 SCR 1000 : (1983) 1 SCC 147; Abdul
Rehman Antulay & Ors. v. R.S. Nayak & Anr, [1991]
Suppl. 3 SCR 325 : (1992) 1 SCC 225; P. Ramachandra
Rao v. State of Karnataka, [2002] 3 SCR 60 : (2002) 4
SCC 578 – followed.
Deputy Commissioner of Income Tax & Anr. v. Pepsi
Foods Limited, [2021] 4 SCR 1 : (2021) 7 SCC 413;
Tirupati Balaji Developers (P) Ltd. & Ors. v. State of
Bihar & Ors., [2004] Suppl. 1 SCR 494 : (2004) 5 SCC
1 – relied on.
Mohan Lal Magan Lal Thacker v. State of Gujarat,
[1968] 2 SCR 685 : AIR 1968 SC 733; Raza Buland
Sugar Co. Ltd. v. Municipal Board, Rampur, [1965] 1
SCR 970 : AIR 1965 SC 895; Kailash v. Nanhku & Ors,
[2005] 3 SCR 289 : (2005) 4 SCC 480; Deoraj v. State
of Maharashtra & Ors., [2004] 3 SCR 920 : (2004) 4
SCC 697; All India Judges’ Association & Ors. v. Union
of India & Ors., [2002] 2 SCR 712 : (2002) 4 SCC 247;
Imtiyaz Ahmed v. State of Uttar Pradesh & Ors., [2017]
1 SCR 305 : (2017) 3 SCC 658 – referred to.

List of Acts
Constitution of India; Constitution (Forty-fourth Amendment) Act,
1978; Prevention of Corruption Act, 1988; Income Tax Act, 1961.
List of Keywords
Interim orders; Vacation or modification of interim relief;
Automatic end of interim relief; Lapse of time; Enforcement
of decrees and orders of Supreme Court and orders as to
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discovery, etc; Interim orders of the High Courts; Interim orders
of stay of proceedings; Day-to-day basis hearing; Position of
the High Courts; High Court’s power of superintendence; Issue
not arising for consideration; Deciding pending cases in a time-
bound manner; Effect of directions issued by the Constitutional
Courts; Procedure to be adopted by High Courts while passing
interim order; Applications for vacating interim stay.
Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.3589
of 2023
With
Special Leave Petition (Crl.) Nos. 13284-13289 of 2023 and Criminal
Appeal... Diary No. 49052 of 2023
From the Judgment and Order dated 03.11.2023 of the High Court of
Judicature at Allahabad in A482 No. 28574 of 2019
Appearances for Parties
Rakesh Dwivedi, VK Shukla, Kavin Gulati, S.G. Hasnain, Ravindra
Singh, Dinesh Goswami, Sr. Advs., Shantanu Krishna, Nitin Sharma,
Nikhil Sharma, Eklavya Dwivedi, Shantanu Sagar, Anukul Raj, Ankit
Mishra, Harmeet Singh Ruprah, Abhinav Shrivastava, Manu Yadav,
Himanshu Tyagi, Kumar Ayush, Ronak Chaturavedi, Ram Kaushik,
Syed Mohd Fazal, Archit Mandhyan, Raman Yadav, Prabhat Ranjan Raj,
Sidharth Sarthi, Anil Kumar, Gunjesh Ranjan, Animesh Tripathi, Anant
Prakash, Mrs. Kanupriya Mishra, Amit Kumar Singh, Salil Srivastava,
Shaurya Vardhan Singh, Ankit Dwivedi, Mrs. Mukti Chowdhary,
Gyanendra Kumar, Mrs. Vijaya Singh, Shashwat Anand, Apoorv Mishra,
Shashank Shukla, Ashutosh Thakur, Vaibhav Jain, Rituvendra Singh,
Aniruddh Kumar, Rajrshi Gupta, Imran Ullah, Tarun Agarwal, Ankit
Saran, Namit Srivastava, Rakesh Dubey, Swetashwa Agarwal, Javed
H Khan, Praval Tripathi, Shariq Ahmed, Satwik Misra, Ishit Saharia,
Ashish Singh, Amit Singh, Sanjay Kumar Singh, Piyush Kumar, Paritosh
Kumar Singh, Pai Amit, N. Ashwani Kumar, Ms. Pankhuri Bhardwaj, Ms.
Bhavana Duhoon, Ms. Ranu Purohit, Abhiyudaya Vats, Ms. Vanshika
Dubey, Kushal Dube, Tathagata Dutta, P. Ashok, Advs. for the Appellant.
Tushar Mehta, SG, Ajay Kumar Misra, Adv. Gen/Sr. Adv., Vijay
Hansaria, Sr. Adv., Tanmaya Agarwal, Wrick Chatterjee, Mrs. Aditi
[2024] 2 S.C.R. 955

High Court Bar Association, Allahabad v. State of U.P. & Ors.

Agarwal, Vinayak Mohan, Mahfooz Ahsan Nazki, Polanki Gowtham,
Ms. Rajeswari Mukherjee, K.V. Girish Chowdary, T. Vijaya Bhaskar
Reddy, Ms. Archita Nigam, Meeran Maqbool, Ms. Ruchi Guasain,
Fuzail Ahmad Ayyubi, Ibad Mushtaq, Ms. Akanksha Rai, Ms. Anasuya
Choudhury, Ms. Kavya Jhawar, Gaurav Mehrotra, Talha Abdul
Rahman, Nadeem Murtaza, Akber Ahmed, Abhinit Jaiswal, Harsh
Vardhan Mehrotra, Ms. Maria Fatima, Ms. Alina Masoodi, M. Shaz
Khan, Adnan Yousuf Bhat, Ms. Anasuya Chaudhoury, Advs. for the
Respondents.
Judgment / Order of the Supreme Court

Judgment
Abhay S. Oka, J.
Table of Contents*
A. FACTUAL BACKGROUND ..............................................2
I. Directions in Asian Resurfacing ................................2
II. Order of reference to Larger Bench ..........................7
B. SUBMISSIONS ......................................................................8
C. ANALYSIS ............................................................................14
I. Object of passing interim orders .............................14
II. High Court’s power to vacate or modify interim
relief..............................................................................16
III. Whether an interim order can come to an end
automatically only due to the lapse of time ...........17
IV. Scope of exercise of powers under Article 142 of the
Constitution ................................................................ 21
V. Position of High Courts and its power of
superintendence ......................................................29
VI. Whether the Court should deal with an issue not arising
for consideration .......................................................32
VII. Clause (3) of Article 226 of the Constitution ..........33
VIII. Directions issued by the constitutional Courts to
decide pending cases in a time-bound manner .....34

* Ed Note : Pagination as per original judgment.
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IX. Procedure to be adopted by High Courts while passing
interim order of stay of proceedings and for dealing
with the applications for vacating interim stay ......43
D. CONCLUSIONS ...................................................................44

A. FACTUAL BACKGROUND
By the order dated 1st December 2023, a Bench of three Hon’ble
Judges of this Court expressed a view that a decision of this Court
in the case of Asian Resurfacing of Road Agency Private Limited
& Anr. v. Central Bureau of Investigation1 requires reconsideration
by a larger Bench.
I. Directions in Asian Resurfacing
1. In Asian Resurfacing1, this Court dealt with the scope of interference
by the High Court with an order of framing charge passed by the
Special Judge under the provisions of the Prevention of Corruption
Act, 1988 (for short, ‘the PC Act’). The issue was whether an order
of framing charge was an interlocutory order. The High Court held
that an order of framing charge under the PC Act was interlocutory.
A Bench of two Hon’ble Judges of this Court, by the order dated 9th
September 2013, referred the case to a larger Bench to consider the
issue of whether the case of Mohan Lal Magan Lal Thacker v. State
of Gujarat2 was correctly decided. A Bench of three Hon’ble Judges
held that the order of framing charge was neither an interlocutory nor
a final order. Therefore, it was held that the High Court has jurisdiction
in appropriate cases to consider a challenge to an order of framing
charge. Furthermore, the High Court has jurisdiction to grant a stay
of the trial proceedings. Thereafter, it proceeded to consider in which
cases a stay of the proceedings ought to be granted. The Bench
considered the question in the context of a criminal trial, particularly
under the PC Act. In paragraphs 30 and 31, the Bench observed thus:
“30. It is well accepted that delay in a criminal trial,
particularly in the PC Act cases, has deleterious effect
on the administration of justice in which the society has a

1 [2018] 2 SCR 1045 : (2018) 16 SCC 299
2 [1968] 2 SCR 685 : AIR 1968 SC 733
[2024] 2 S.C.R. 957

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vital interest. Delay in trials affects the faith in Rule of Law
and efficacy of the legal system. It affects social welfare
and development. Even in civil or tax cases it has been
laid down that power to grant stay has to be exercised
with restraint. Mere prima facie case is not enough. Party
seeking stay must be put to terms and stay should not be
an incentive to delay. The order granting stay must show
application of mind. The power to grant stay is coupled
with accountability. [Siliguri Municipality v. Amalendu Das,
(1984) 2 SCC 436, para 4 : 1984 SCC (Tax) 133; CCE
v. Dunlop India Ltd., (1985) 1 SCC 260, para 5 : 1985
SCC (Tax) 75; State (UT of Pondicherry) v. P.V. Suresh,
(1994) 2 SCC 70, para 15 and State of W.B. v. Calcutta
Hardware Stores, (1986) 2 SCC 203, para 5]
31. Wherever stay is granted, a speaking order must
be passed showing that the case was of exceptional
nature and delay on account of stay will not prejudice
the interest of speedy trial in a corruption case. Once
stay is granted, proceedings should not be adjourned,
and concluded within two-three months.”
(Emphasis added)
2. We have been called upon to decide the correctness of the view
taken in paragraphs 36 and 37 of the said decision, which read thus:
“36. In view of the above, situation of proceedings
remaining pending for long on account of stay needs to
be remedied. Remedy is required not only for corruption
cases but for all civil and criminal cases where on
account of stay, civil and criminal proceedings are held
up. At times, proceedings are adjourned sine die on
account of stay. Even after stay is vacated, intimation
is not received and proceedings are not taken up. In
an attempt to remedy this situation, we consider it
appropriate to direct that in all pending cases where
stay against proceedings of a civil or criminal trial
is operating, the same will come to an end on expiry
of six months from today unless in an exceptional
case by a speaking order such stay is extended.
In cases where stay is granted in future, the same
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will end on expiry of six months from the date of
such order unless similar extension is granted by
a speaking order. The speaking order must show
that the case was of such exceptional nature that
continuing the stay was more important than having
the trial finalised. The trial court where order of stay
of civil or criminal proceedings is produced, may fix a
date not beyond six months of the order of stay so that
on expiry of period of stay, proceedings can commence
unless order of extension of stay is produced.
37. Thus, we declare the law to be that order framing
charge is not purely an interlocutory order nor a final order.
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, the said
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. Thus considered,
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, the
decision may not exceed two-three months normally.
If it remains pending longer, duration of stay should
not exceed six months, unless extension is granted
by a specific speaking order, as already indicated.
Mandate of speedy justice applies to the PC Act cases as
well as other cases where at trial stage proceedings are
stayed by the higher court i.e. the High Court or a court
below the High Court, as the case may be. In all pending
matters before the High Courts or other courts relating to
the 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 the above parameters.
Same course may also be adopted by civil and criminal
[2024] 2 S.C.R. 959

High Court Bar Association, Allahabad v. State of U.P. & Ors.

appellate/Revisional Courts under the jurisdiction of the
High Courts. The trial courts may, on expiry of the above
period, resume the proceedings without waiting for any
other intimation unless express order extending stay is
produced.”
(Emphasis added)
3. A Miscellaneous Application was filed in the decided case, in light of
the order passed on 4th December 2019 by the Learned Additional
Chief Judicial Magistrate, Pune. When the learned Magistrate was
called upon to proceed with the trial on the ground of automatic
vacation of stay after the expiry of a period of six months, the
learned Magistrate expressed a view that when the jurisdictional
High Court had passed an order of stay, a Court subordinate to the
High Court cannot pass any order contrary to the order of stay. By
the order dated 15th October 2020, this Court held that when the
stay granted by the High Court automatically expires, unless an
extension is granted for good reasons, the Trial Court, on expiry of
a period of six months, must set a date for trial and go ahead with
the same. Later, an attempt was made to seek clarification of the
law laid down in the case of Asian Resurfacing1. This Court, by
the order dated 25th April 2022, did not apply the direction issued
in Asian Resurfacing1 to the facts of the case before it. An attempt
was made to apply the directions to an order of stay of the order
of the learned Single Judge of the High Court passed by a Division
Bench in a Letters Patent Appeal.
II. Order of reference to Larger Bench
4. In the order of reference dated 1st December 2023, in paragraph 10,
this Court observed thus:
“10. We have reservations in regard to the correctness
of the broad formulations of principle in the above terms.
There can be no gainsaying the fact that a stay of an
indefinite nature results in prolonging civil or criminal
proceedings, as the case may be, unduly. At the same
time, it needs to be factored in that the delay is not always
on account of conduct of the parties involved. The delay
may also be occasioned by the inability of the Court to
take up proceedings expeditiously. The principle which
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has been laid down in the above decision to the effect
that the stay shall automatically stand vacated (which
would mean an automatic vacation of stay without
application of judicial mind to whether the stay should
or should not be extended further) is liable to result
in a serious miscarriage of justice.”
(Emphasis added)
5. We are called upon to decide the following questions: -
(a) Whether this Court, in the exercise of its jurisdiction under Article
142 of the Constitution of India, can order automatic vacation
of all interim orders of the High Courts of staying proceedings
of Civil and Criminal cases on the expiry of a certain period?
(b) Whether this Court, in the exercise of its jurisdiction under
Article 142 of the Constitution of India, can direct the High
Courts to decide pending cases in which interim orders of stay
of proceedings has been granted on a day-to-day basis and
within a fixed period?
B. SUBMISSIONS
6. The main submissions were canvassed by Shri Rakesh Dwivedi, the
learned senior counsel appearing on behalf of the appellant in Criminal
Appeal no.3589 of 2023. We are summarising the submissions of
Shri Rakesh Dwivedi as follows:
a. Automatic Vacation of the interim order is in the nature of judicial
legislation. This Court cannot engage in judicial legislation;
b. Article 226 is a part of the basic structure of the Constitution of
India, and it can neither be shut out nor whittled down by the
exercise of powers under Articles 141 and 142;
c. The High Court is also a constitutional Court which is not
judicially subordinate to this Court;
d. An order granting interim relief cannot be passed without an
application of judicial mind. Application of mind is a pre-requisite
of judicial decision making. The absence of application of mind
would render a decision arbitrary. Similarly, an order vacating
interim relief cannot be passed without the application of judicial
mind;
[2024] 2 S.C.R. 961

High Court Bar Association, Allahabad v. State of U.P. & Ors.

e. If an interim order is to be passed, it should be initially for a
short period so that there is an effective opportunity for the
respondent to contest the same;
f. Two Constitution Benches in the cases of Abdul Rehman
Antulay & Ors. v. R.S. Nayak & Anr.3 and P. Ramachandra
Rao v. State of Karnataka4 held that it is not permissible for
this Court to fix the time limit for completion of a trial;
g. No such directions could have been issued in the exercise of
the jurisdiction of this Court under Article 142 of the Constitution
of India;
h. Even under Article 226 (3) of the Constitution, an interim order
cannot be automatically vacated unless a specific application
is made for vacating the interim order;
i. A provision of automatic vacation of the Appellate Tribunal’s stay
order was incorporated in Section 254 (2A) of the Income Tax
Act, 1961 (for short, ‘the IT Act’). It provided that if an appeal
preferred before the Appellate Tribunal was not disposed of
within 365 days, the stay shall stand vacated even if the delay
in disposing of the appeal is not attributable to the assessee.
This court struck down the provision in the case of Deputy
Commissioner of Income Tax & Anr. v. Pepsi Foods Limited5
on the ground that it was manifestly arbitrary; and
j. The automatic vacation of interim relief is unjust, unfair and
unreasonable.
7. Shri Tushar Mehta, the learned Solicitor General appearing for the
State of Uttar Pradesh, supported the submissions of Shri Dwivedi.
In addition, he submitted that:
a. As held by the Constitution Bench in the case of Raza Buland
Sugar Co. Ltd. v. Municipal Board, Rampur6, laws of procedure
are grounded in principles of natural justice, which require that
no decision can be reached behind the back of a person and
in his absence;

3 [1991] Suppl. 3 SCR 325 : (1992) 1 SCC 225
4 [2002] 3 SCR 60 : (2002) 4 SCC 578
5 [2021] 4 SCR 1 : (2021) 7 SCC 413
6 [1965] 1 SCR 970 : AIR 1965 SC 895
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b. If the condition imposed by a provision of law to do a certain
thing within a time frame is upon the institution and the
consequences of that institution failing to comply with the
condition are to fall upon someone who has no control over
the institution, the provision of law will have to be construed
as directory;
c. An interim relief order is always granted after considering the
three factors: prima facie case, the balance of convenience
and irreparable injury to the aggrieved party. Once a finding
is recorded regarding the entitlement of the appellant/
applicant to get the order of stay, the order does not become
automatically bad on the ground that it has lived for six
months; and
d. In the decision of this Court in Kailash v. Nanhku & Ors7, it
has been held that the process of justice may be speeded up
and hurried, but fairness, which is the basic element of justice,
cannot be permitted to be buried. The discretion conferred upon
the High Court cannot be taken away by exercising power under
Article 142 of the Constitution of India.
8. Shri Gaurav Mehrotra, the learned counsel appearing for the applicant
in I.A. no.252872 of 2023 in Criminal Appeal no.3589 of 2023, in
addition to the aforesaid submissions, relied upon a decision of the
Constitution Bench in the case of Sanjeev Coke Manufacturing
Company v. M/s. Bharat Coking Coal Ltd. & Anr8, to contend that
the Court should not decide any important question without there
being a proper lis.
9. Shri Vijay Hansaria, the learned senior counsel appearing for the
Gauhati High Court Bar Association, made the following submissions:
a. As regards the interpretation of clause (3) of Article 226 of the
Constitution of India, various High Courts have taken different
views on the issue of whether the provision for automatic
vacation of stay is mandatory or directory. He urged that the
provision will have to be held as a directory;

7 [2005] 3 SCR 289 : (2005) 4 SCC 480
8 [1983] 1 SCR 1000 : (1983) 1 SCC 147
[2024] 2 S.C.R. 963

High Court Bar Association, Allahabad v. State of U.P. & Ors.

b. In Asian Resurfacing1, the Court was dealing with a petition
filed in the High Court arising from a prosecution under the PC
Act. The cases of other categories were not the subject matter
of challenge before this Court;
c. The power under Article 142 of the Constitution of India can
be exercised for doing complete justice in any case or matter
pending before it. The issue of the duration of the order of stay
did not arise in the case of Asian Resurfacing1; and
d. A successful litigant whose application for stay is allowed by
the High Court cannot be prejudiced only on the ground that
the High Court does not hear the main case within six months
for reasons beyond the control of the said litigant.
10. Shri Amit Pai, the learned counsel appearing for the appellant in one
of the appeals, while adopting the submissions, relied upon a decision
of this Court in the case of Deoraj v. State of Maharashtra & Ors.9
and contended that recourse is taken to the order of grant of interim
relief as the conclusion of hearing on merits is likely to take some
time. He submitted that the said object has not been considered in
Asian Resurfacing1. He urged that passing an interim order of stay
is a judicial act. Therefore, such an order must be vacated only by
a judicial act.
11. Prof (Dr) Pankaj K Phadnis, representing the intervenor – Abhinav
Bharat Congress, has filed written submissions. He has contended that
he was not permitted to join the hearing through video conferencing.
He has come out with the draft of Supreme Court Rules, 2024. His
submissions, based on the draft, are entirely irrelevant.
C. ANALYSIS
12. We have no manner of doubt that the direction issued in paragraph
36 of Asian Resurfacing1 regarding automatic vacation of stay
has been issued in the exercise of the jurisdiction of this Court
under Article 142 of the Constitution of India. Even the direction in
paragraph 37 of conducting day-to-day hearing has been issued
in exercise of the same jurisdiction. The effect of the direction
issued in paragraph 36 is that the interim order of stay granted

9 [2004] 3 SCR 920 : (2004) 4 SCC 697
964 [2024] 2 S.C.R.

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in favour of a litigant stands vacated without even giving him an
opportunity of being heard, though there may not be any default
on his part.
I. Object of passing interim orders
13. Before we examine the questions, we need to advert to the object
of passing orders of interim relief pending the final disposal of the
main case. The reason is that the object of passing interim order
has not been considered while deciding Asian Resurfacing1. An
order of interim relief is usually granted in the aid of the final relief
sought in the case. An occasion for passing an order of stay of
the proceedings normally arises when the High Court is dealing
with a challenge to an interim or interlocutory order passed during
the pendency of the main case before a trial or appellate Court.
The High Court can grant relief of the stay of hearing of the main
proceedings on being satisfied that a prima facie case is made out
and that the failure to stay the proceedings before the concerned
Court in all probability may render the remedy adopted infructuous.
When the High Court passes an interim order of stay, though the
interim order may not expressly say so, the three factors, viz; prima
facie case, irreparable loss, and balance of convenience, are always
in the back of the judges’ minds. Though interim orders of stay of
proceedings cannot be routinely passed as a matter of course, it
cannot be said that such orders can be passed only in exceptional
cases. Nevertheless, the High Courts, while passing orders of stay in
serious cases like the offences under the PC Act or serious offences
against women and children, must be more cautious and circumspect.
An occasion for passing an order of stay of proceeding arises as it is
not possible for the High Court to take up the case for final hearing
immediately. While entertaining a challenge to an order passed in
a pending case, if the pending case is not stayed, the trial or the
appellate Court may decide the pending case, rendering the remedy
before the High Court ineffective. Such a situation often leads to the
passing of an order of remand. In our legal system, which is facing
a docket explosion, an order of remand should be made only as a
last resort. The orders of remand not only result in more delays but
also increase the cost of litigation. Therefore, to avoid the possibility
of passing an order of remand, the grant of stay of proceedings is
called for in many cases.
[2024] 2 S.C.R. 965

High Court Bar Association, Allahabad v. State of U.P. & Ors.

II. High Court’s power to vacate or modify interim relief
14. When a High Court grants a stay of the proceedings while issuing
notice without giving an opportunity of being heard to the contesting
parties, it is not an interim order, but it is an ad-interim order of
stay. It can be converted into an interim order of stay only after an
opportunity of being heard is granted on the prayer for interim relief
to all the parties to the proceedings. Ad-interim orders, by their very
nature, should be of a limited duration. Therefore, such orders do
not pose any problem.
15. The High Courts are always empowered to vacate or modify an order
of interim relief passed after hearing the parties on the following,
amongst other grounds: -
(a) If a litigant, after getting an order of stay, deliberately prolongs
the proceedings either by seeking adjournments on unwarranted
grounds or by remaining absent when the main case in which
interim relief is granted is called out for hearing before the
High Court with the object of taking undue advantage of the
order of stay;
(b) The High Court finds that the order of interim relief is granted as
a result of either suppression or misrepresentation of material
facts by the party in whose favour the interim order of stay has
been made; and
(c) The High Court finds that there is a material change in
circumstances requiring interference with the interim order
passed earlier. In a given case, a long passage of time may
bring about a material change in circumstances.
These grounds are not exhaustive. There can be other valid grounds
for vacating an order of stay.
III. Whether an Interim Order can come to an end automatically
only due to the lapse of time
16. Interim order of stay can come to an end: -
(a) By disposal of the main case by the High Court, in which the
interim order has been passed. The disposal can be either on
merits or for default or other reasons such as the abatement
of the case; or
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(b) by a judicial order vacating interim relief, passed after hearing
the contesting parties on the available grounds, some of which
we have already referred to by way of illustration.
Elementary principles of natural justice, which are well recognised in
our jurisprudence, mandate that an order of vacating interim relief or
modification of the interim relief is passed only after hearing all the
affected parties. An order of vacating interim relief passed without
hearing the beneficiary of the order is against the basic tenets of
justice. Application of mind is an essential part of any decision-making
process. Therefore, without application of mind, an order of interim
stay cannot be vacated only on the ground of lapse of time when
the litigant is not responsible for the delay. An interim order lawfully
passed by a Court after hearing all contesting parties is not rendered
illegal only due to the long passage of time. Moreover, the directions
issued in Asian Resurfacing1 regarding automatic vacation of interim
orders of stay passed by all High Courts are applicable, irrespective
of the merits of individual cases. If a High Court concludes after
hearing all the concerned parties that a case was made out for the
grant of stay of proceedings of a civil or criminal case, the order of
stay cannot stand automatically set aside on expiry of the period of
six months only on the ground that the High Court could not hear
the main case. If such an approach is adopted, it will be completely
contrary to the concept of fairness. If an interim order is automatically
vacated without any fault on the part of the litigant only because
the High Court cannot hear the main case, the maxim “actus curiae
neminem gravabit” will apply. No litigant should be allowed to suffer
due to the fault of the Court. If that happens, it is the bounden duty
of the Court to rectify its mistake.
17. In the subsequent clarification in the case of Asian Resurfacing1,
a direction has been issued to the Trial Courts to immediately fix a
date for hearing after the expiry of the period of six months without
waiting for any formal order of vacating stay passed by the High
Court. This gives an unfair advantage to the respondent in the case
before the High Court. Moreover, it adversely affects a litigant’s
right to the remedies under Articles 226 and 227 of the Constitution
of India. Such orders virtually defeat the right of a litigant to seek
and avail of statutory remedies such as revisions, appeals, and
applications under Section 482 of the Code of Criminal Procedure,
[2024] 2 S.C.R. 967

High Court Bar Association, Allahabad v. State of U.P. & Ors.

1973 (for short, ‘Cr. PC’) as well as the remedies under the Code
of Civil Procedure, 1908 (for short, ‘CPC’). All interim orders of stay
passed by all High Courts cannot be set at naught by a stroke of
pen only on the ground of lapse of time.
18. The legislature attempted to provide for an automatic vacation of
stay granted by the Income Tax Appellate Tribunal by introducing the
third proviso to Section 254 (2A) of the IT Act. It provided that if an
appeal in which the stay was granted was not heard within a period
of 365 days, it would amount to the automatic vacation of stay. In
the case of Pepsi Foods Limited5, this Court held that a provision
automatically vacating a stay was manifestly arbitrary and, therefore,
violative of Article 14 of the Constitution of India. Paragraphs 20 and
22 of the said decision read thus:
“20. Judged by both these parameters, there can be
no doubt that the third proviso to Section 254(2-A) of
the Income Tax Act, introduced by the Finance Act,
2008, would be both arbitrary and discriminatory and,
therefore, liable to be struck down as offending Article
14 of the Constitution of India. First and foremost, as
has correctly been held in the impugned judgment,
unequals are treated equally in that no differentiation
is made by the third proviso between the assessees
who are responsible for delaying the proceedings and
assessees who are not so responsible. This is a little
peculiar in that the legislature itself has made the aforesaid
differentiation in the second proviso to Section 254(2-A) of
the Income Tax Act, making it clear that a stay order may
be extended up to a period of 365 days upon satisfaction
that the delay in disposing of the appeal is not attributable
to the assessee. We have already seen as to how, as
correctly held by Narang Overseas [Narang Overseas (P)
Ltd. v. Income Tax Appellate Tribunal, 2007 SCC OnLine
Bom 671 : (2007) 295 ITR 22] , the second proviso was
introduced by the Finance Act, 2007 to mitigate the rigour
of the first proviso to Section 254(2-A) of the Income Tax
Act in its previous avatar. Ordinarily, the Appellate Tribunal,
where possible, is to hear and decide appeals within a
period of four years from the end of the financial year in
which such appeal is filed. It is only when a stay of the
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impugned order before the Appellate Tribunal is granted,
that the appeal is required to be disposed of within 365
days. So far as the disposal of an appeal by the Appellate
Tribunal is concerned, this is a directory provision. However,
so far as vacation of stay on expiry of the said period is
concerned, this condition becomes mandatory so far as
the assessee is concerned.”
21. .. .. .. .. .. .. .. .. .. ..
22. Since the object of the third proviso to Section
254(2-A) of the Income Tax Act is the automatic vacation
of a stay that has been granted on the completion of
365 days, whether or not the assessee is responsible
for the delay caused in hearing the appeal, such object
being itself discriminatory, in the sense pointed out
above, is liable to be struck down as violating Article
14 of the Constitution of India. Also, the said proviso
would result in the automatic vacation of a stay upon
the expiry of 365 days even if the Appellate Tribunal
could not take up the appeal in time for no fault of
the assessee. Further, the vacation of stay in favour
of the Revenue would ensue even if the Revenue is
itself responsible for the delay in hearing the appeal. In
this sense, the said proviso is also manifestly arbitrary
being a provision which is capricious, irrational and
disproportionate so far as the assessee is concerned.”
(Emphasis added)
Therefore, even if the legislature were to come out with such a
provision for automatic vacation of stay, the same may not stand
judicial scrutiny as it may suffer from manifest arbitrariness.
IV. Scope of exercise of powers under Article 142 of the
Constitution
19. The directions issued in Asian Resurfacing1 are obviously issued
in the exercise of jurisdiction of this Court under Article 142 of the
Constitution, which confers jurisdiction on this Court to pass such
a decree or make such order necessary for doing complete justice
in any case or matter pending before it. In Asian Resurfacing1,
the first issue was, whether an order framing of charge in a case
[2024] 2 S.C.R. 969

High Court Bar Association, Allahabad v. State of U.P. & Ors.

under the PC Act was in the nature of an interlocutory order. The
second question was of the scope of powers of the High Court to
stay proceedings of the trial under the PC Act while entertaining a
challenge to an order of framing charge. The question regarding the
duration of the interim orders passed by the High Courts in various
other proceedings did not specifically arise for consideration in the
case of Asian Resurfacing1. The provisions of Article 142 of the
Constitution of India are meant to further the cause of justice and
to secure complete justice. The directions in the exercise of power
under Article 142 cannot be issued to defeat justice. The jurisdiction
under Article 142 cannot be invoked to pass blanket orders setting at
naught a very large number of interim orders lawfully passed by all
the High Courts, and that too, without hearing the contesting parties.
The jurisdiction under Article 142 can be invoked only to deal with
extraordinary situations for doing complete justice between the parties
before the Court.
20. While dealing with the scope of power under Article 142, a Constitution
Bench of this Court in the case of Prem Chand Garg & Anr. v. The
Excise Commissioner, U.P. and Ors.10, in paragraphs 12 and 13
held thus:
“12. Basing himself on this decision, the Solicitor-General
argues that the power conferred on this Court under
Article 142(1) is comparable to the privileges claimed by
the members of the State Legislatures under the latter
part of Article 194(3), and so, there can be no question of
striking down an order passed by this Court under Article
142(1) on the ground that it is inconsistent with Article 32. It
would be noticed that this argument proceeds on the basis
that the order for security infringes the fundamental right
guaranteed by Article 32 and it suggests that under Article
142(1) this Court has jurisdiction to pass such an order. In
our opinion, the argument thus presented is misconceived.
In this connection, it is necessary to appreciate the actual
decision in the case of Sharma [(1959) 1 SCR 806 at
859-860] and its effect. The actual decision was that the
rights claimable under the latter part of Article 194(3) were

10 [1963] Supp. 1 S.C.R. 885 : 1962 SCC Online SC 37
970 [2024] 2 S.C.R.

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not subject to Article 19(1)(a), because the said rights had
been expressly provided for by a constitutional provision
viz. Article 194(3), and it would be impossible to hold that
one part of the Constitution is inconsistent with another
part. The position would, however, be entirely different if
the State Legislature was to pass a law in regard to the
privileges of its members. Such a law would obviously
have to be consistent with Article 19(1)(a). If any of the
provisions of such a law were to contravene any of the
fundamental rights guaranteed by Part III, they would be
struck down as being unconstitutional. Similarly, there can
be no doubt that if in respect of petitions under Article 32
a law is made by Parliament as contemplated by Article
145(1), and such a law, in substance, corresponds to the
provisions of Order 25 Rule 1 or Order 41 Rule 10, it would
be struck down on the ground that it purports to restrict the
fundamental right guaranteed by Article 32. The position
of an order made either under the rules framed by this
Court or under the jurisdiction of this Court under Article
142(1) can be no different. If this aspect of the matter is
borne in mind, there would be no difficulty in rejecting the
Solicitor-General’s argument based on Article 142(1). The
powers of this Court are no doubt very wide and they
are intended to be and will always be exercised in the
interest of justice. But that is not to say that an order
can be made by this Court which is inconsistent with
the fundamental rights guaranteed by Part III of the
Constitution. An order which this Court can make in
order to do complete justice between the parties, must
not only be consistent with the fundamental rights
guaranteed by the Constitution, but it cannot even be
inconsistent with the substantive provisions of the
relevant statutory laws. Therefore, we do not think it
would be possible to hold that Article 142(1) confers upon
this Court powers which can contravene the provisions of
Article 32.
13. In this connection, it may be pertinent to point out
that the wide powers which are given to this Court for
doing complete justice between the parties, can be
[2024] 2 S.C.R. 971

High Court Bar Association, Allahabad v. State of U.P. & Ors.

used by this Court, for instance, in adding parties to the
proceedings pending before it, or in admitting additional
evidence, or in remanding the case, or in allowing a new
point to be taken for the first time. It is plain that in
exercising these and similar other powers, this Court
would not be bound by the relevant provisions of
procedure if it is satisfied that a departure from the
said procedure is necessary to do complete justice
between the parties.”
(Emphasis added)
21. Another Constitution Bench in the case of Supreme Court Bar
Association v. Union of India & Anr.11, in paragraphs 47 and 48,
held thus:
“47. The plenary powers of this Court under Article 142
of the Constitution are inherent in the Court and are
complementary to those powers which are specifically
conferred on the Court by various statutes though are
not limited by those statutes. These powers also exist
independent of the statutes with a view to do complete
justice between the parties. These powers are of very wide
amplitude and are in the nature of supplementary powers.
This power exists as a separate and independent basis
of jurisdiction apart from the statutes. It stands upon the
foundation and the basis for its exercise may be put on a
different and perhaps even wider footing, to prevent injustice
in the process of litigation and to do complete justice
between the parties. This plenary jurisdiction is, thus,
the residual source of power which this Court may draw
upon as necessary whenever it is just and equitable to
do so and in particular to ensure the observance of the
due process of law, to do complete justice between the
parties, while administering justice according to law.
There is no doubt that it is an indispensable adjunct to all
other powers and is free from the restraint of jurisdiction
and operates as a valuable weapon in the hands of the
Court to prevent “clogging or obstruction of the stream of

11 [1998] 2 SCR 795 : (1998) 4 SCC 409
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justice”. It, however, needs to be remembered that the
powers conferred on the Court by Article 142 being
curative in nature cannot be construed as powers which
authorise the Court to ignore the substantive rights of
a litigant while dealing with a cause pending before it.
This power cannot be used to “supplant” substantive law
applicable to the case or cause under consideration of the
Court. Article 142, even with the width of its amplitude,
cannot be used to build a new edifice where none
existed earlier, by ignoring express statutory provisions
dealing with a subject and thereby to achieve something
indirectly which cannot be achieved directly. Punishing
a contemner advocate, while dealing with a contempt of
court case by suspending his licence to practice, a power
otherwise statutorily available only to the Bar Council of
India, on the ground that the contemner is also an advocate,
is, therefore, not permissible in exercise of the jurisdiction
under Article 142. The construction of Article 142 must be
functionally informed by the salutary purposes of the article,
viz., to do complete justice between the parties. It cannot
be otherwise. As already noticed in a case of contempt of
court, the contemner and the court cannot be said to be
litigating parties.
48. The Supreme Court in exercise of its jurisdiction
under Article 142 has the power to make such order as
is necessary for doing complete justice “between the
parties in any cause or matter pending before it”. The
very nature of the power must lead the Court to set
limits for itself within which to exercise those powers
and ordinarily it cannot disregard a statutory provision
governing a subject, except perhaps to balance the
equities between the conflicting claims of the litigating
parties by “ironing out the creases” in a cause or matter
before it. Indeed this Court is not a court of restricted
jurisdiction of only dispute-settling. It is well recognised and
established that this Court has always been a law-maker
and its role travels beyond merely dispute-settling. It is a
“problem-solver in the nebulous areas” (see K. Veeraswami
v. Union of India [(1991) 3 SCC 655 : 1991 SCC (Cri) 734]
[2024] 2 S.C.R. 973

High Court Bar Association, Allahabad v. State of U.P. & Ors.

but the substantive statutory provisions dealing with the
subject-matter of a given case cannot be altogether ignored
by this Court, while making an order under Article 142.
Indeed, these constitutional powers cannot, in any way,
be controlled by any statutory provisions but at the same
time these powers are not meant to be exercised when
their exercise may come directly in conflict with what has
been expressly provided for in a statute dealing expressly
with the subject.”
(Emphasis added)
22. It is very difficult to exhaustively lay down the parameters for the
exercise of powers under Article 142 of the Constitution of India
due to the very nature of such powers. However, a few important
parameters which are relevant to the issues involved in the reference
are as follows:-
(i) The jurisdiction can be exercised to do complete justice between
the parties before the Court. It cannot be exercised to nullify the
benefits derived by a large number of litigants based on judicial
orders validly passed in their favour who are not parties to the
proceedings before this Court;
(ii) Article 142 does not empower this Court to ignore the substantive
rights of the litigants; and
(iii) While exercising the jurisdiction under Article 142 of the
Constitution of India, this Court can always issue procedural
directions to the Courts for streamlining procedural aspects
and ironing out the creases in the procedural laws to ensure
expeditious and timely disposal of cases. This is because, while
exercising the jurisdiction under Article 142, this Court may not
be bound by procedural requirements of law. However, while
doing so, this Court cannot affect the substantive rights of those
litigants who are not parties to the case before it. The right to
be heard before an adverse order is passed is not a matter of
procedure but a substantive right.
(iv) The power of this Court under Article 142 cannot be exercised
to defeat the principles of natural justice, which are an integral
part of our jurisprudence.
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V. Position of the High Courts and its power of superintendence
23. A High Court is also a constitutional Court. It is well settled that it is
not judicially subordinate to this Court. In the case of Tirupati Balaji
Developers (P) Ltd. & Ors. v. State of Bihar & Ors.12, this Court
has explained the position of the High Courts vis-à-vis this Court. In
paragraph 8, this Court observed thus:
“8. Under the constitutional scheme as framed for
the judiciary, the Supreme Court and the High Courts,
both are courts of record. The High Court is not a
court “subordinate” to the Supreme Court. In a way
the canvas of judicial powers vesting in the High Court is
wider inasmuch as it has jurisdiction to issue all prerogative
writs conferred by Article 226 of the Constitution for the
enforcement of any of the rights conferred by Part III of the
Constitution and for any other purpose while the original
jurisdiction of the Supreme Court to issue prerogative writs
remains confined to the enforcement of fundamental rights
and to deal with some such matters, such as Presidential
elections or inter-State disputes which the Constitution does
not envisage being heard and determined by High Courts.
The High Court exercises power of superintendence
under Article 227 of the Constitution over all subordinate
courts and tribunals; the Supreme Court has not been
conferred with any power of superintendence. If the
Supreme Court and the High Courts both were to be
thought of as brothers in the administration of justice,
the High Court has larger jurisdiction but the Supreme
Court still remains the elder brother. There are a few
provisions which give an edge, and assign a superior place
in the hierarchy, to the Supreme Court over High Courts.
So far as the appellate jurisdiction is concerned, in all civil
and criminal matters, the Supreme Court is the highest and
the ultimate court of appeal. It is the final interpreter of the
law. Under Article 139-A, the Supreme Court may transfer
any case pending before one High Court to another High
Court or may withdraw the case to itself. Under Article 141

12 [2004] Supp. 1 SCR 494 : (2004) 5 SCC 1
[2024] 2 S.C.R. 975

High Court Bar Association, Allahabad v. State of U.P. & Ors.

the law declared by the Supreme Court shall be binding
on all courts, including High Courts, within the territory of
India. Under Article 144 all authorities, civil and judicial, in
the territory of India — and that would include High Courts
as well — shall act in aid of the Supreme Court.”
(Emphasis added)
A High Court is constitutionally independent of the Supreme Court of
India and is not subordinate to this Court. This Court has dealt with
the issue of jurisdiction of the High Courts in the case of L. Chandra
Kumar v. Union of India & Ors13. The relevant part of paragraph 78
and paragraph 79 read thus:
“78. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. We, therefore,
hold that the power of judicial review over legislative
action vested in the High Courts under Article 226 and
in this Court under Article 32 of the Constitution is
an integral and essential feature of the Constitution,
constituting part of its basic structure. Ordinarily,
therefore, the power of High Courts and the Supreme
Court to test the constitutional validity of legislations
can never be ousted or excluded.
79. We also hold that the power vested in the High
Courts to exercise judicial superintendence over
the decisions of all courts and tribunals within their
respective jurisdictions is also part of the basic
structure of the Constitution. This is because a situation
where the High Courts are divested of all other judicial
functions apart from that of constitutional interpretation, is
equally to be avoided.”
(Emphasis added)
24. The power of the High Court under Article 227 of the Constitution to
have judicial superintendence over all the Courts within its jurisdiction
will include the power to stay the proceedings before such Courts. By
a blanket direction in the exercise of power under Article 142 of the
Constitution of India, this Court cannot interfere with the jurisdiction

13 [1997] 2 SCR 1186 : (1997) 3 SCC 261
976 [2024] 2 S.C.R.

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conferred on the High Court of granting interim relief by limiting its
jurisdiction to pass interim orders valid only for six months at a time.
Putting such constraints on the power of the High Court will also
amount to making a dent on the jurisdiction of the High Courts under
Article 226 of the Constitution, which is an essential feature that forms
part of the basic structure of the Constitution.
VI. Whether the Court should deal with an issue not arising for
consideration
25. In the case of Sanjeev Coke Manufacturing Company,8 a Constitution
Bench of this Court in paragraph 11 held thus:
“11. ..............................................................We have
serious reservations on the question whether it is open to a
court to answer academic or hypothetical questions on such
considerations, particularly so when serious constitutional
issues are involved. We (Judges) are not authorised to
make disembodied pronouncements on serious and
cloudy issues of constitutional policy without battle
lines being properly drawn. Judicial pronouncements
cannot be immaculate legal conceptions. It is but
right that no important point of law should be decided
without a proper lis between parties properly ranged
on either side and a crossing of the swords. We think
it is inexpedient for the Supreme Court to delve into
problems which do not arise and express opinion
thereon.”
(Emphasis added)
In Asian Resurfacing1, there was no lis before this
Court arising out of the orders of stay granted in different
categories of cases pending before the various High Courts.
This Court was dealing with a case under the PC Act. Thus,
an attempt was made to delve into an issue which did not
arise for consideration.
VII. Clause (3) Of Article 226 of the Constitution
26. In this case, it is unnecessary for this Court to decide whether clause
(3) of Article 226 of the Constitution of India is mandatory or directory.
Clause (3) of Article 226 reads thus:
[2024] 2 S.C.R. 977

High Court Bar Association, Allahabad v. State of U.P. & Ors.

“226. Power of High Courts to issue certain writs:
(1) .. .. .. .. .. .. .. .. .. .. .. .. .. ..
(2) .. .. .. .. .. .. .. .. .. .. .. .. .. ..
(3) Where any party against whom an interim order, whether
by way of injunction or stay or in any other manner, is
made on, or in any proceedings relating to, a petition under
clause (1), without—
(a) furnishing to such party copies of such petition and
all documents in support of the plea for such interim
order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the vacation
of such order and furnishes a copy of such application to
the party in whose favour such order has been made or
the counsel of such party, the High Court shall dispose
of the application within a period of two weeks from the
date on which it is received or from the date on which
the copy of such application is so furnished, whichever is
later, or where the High Court is closed on the last day of
that period, before the expiry of the next day afterwards
on which the High Court is open; and if the application is
not so disposed of, the interim order shall, on the expiry
of that period, or, as the case may be, the expiry of the
said next day, stand vacated.”
On its plain reading, clause (3) is applicable only when an
interim relief is granted without furnishing a copy of the writ
petition along with supporting documents to the opposite
party and without hearing the opposite party. Even assuming
that clause (3) is not directory, it provides for an automatic
vacation of interim relief only if the aggrieved party makes
an application for vacating the interim relief and when the
application for vacating stay is not heard within the time
specified. Clause (3) will not apply when an interim order in
a writ petition under Article 226 is passed after the service of
a copy of the writ petition on all concerned parties and after
giving them an opportunity of being heard. It applies only to
ex-parte ad interim orders.
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VIII. Directions issued by the constitutional Courts to decide
pending cases in a time-bound manner
27. The net effect of the directions issued in paragraphs 36 and
37 of Asian Resurfacing1 is that the petition in which the High
Court has granted a stay of the proceedings of the trial, must be
decided within a maximum period of six months. If it is not decided
within six months, the interim stay will be vacated automatically,
virtually making the pending case infructuous. In fact, in paragraph
37, this Court directed that the challenge to the order of framing
charge should be entertained in a rare case, and when the stay
is granted, the case should be decided by the High Court on a
day-to-day basis so that the stay does not operate for an unduly
long period.
28. The Constitution Benches of this Court have considered the issue
of fixing timelines for the disposal of cases in the cases of Abdul
Rehman Antulay3 and P. Ramachandra Rao4. In the case of Abdul
Rehman Antulay3, in paragraph 83, this Court held thus:
“83. But then speedy trial or other expressions conveying
the said concept — are necessarily relative in nature. One
may ask — speedy means, how speedy? How long a delay
is too long? We do not think it is possible to lay down any
time schedules for conclusion of criminal proceedings. The
nature of offence, the number of accused, the number
of witnesses, the workload in the particular court, means
of communication and several other circumstances have
to be kept in mind. For example, take the very case in
which Ranjan Dwivedi (petitioner in Writ Petition No.
268 of 1987) is the accused. 151 witnesses have been
examined by the prosecution over a period of five years.
Examination of some of the witnesses runs into more than
100 typed pages each. The oral evidence adduced by the
prosecution so far runs into, we are told, 4000 pages.
Even though, it was proposed to go on with the case five
days of a week and week after week, it was not possible
for various reasons viz., non-availability of the counsel,
non-availability of accused, interlocutory proceedings
and other systemic delays. A murder case may be a
simple one involving say a dozen witnesses which can
[2024] 2 S.C.R. 979

High Court Bar Association, Allahabad v. State of U.P. & Ors.

be concluded in a week while another case may involve a
large number of witnesses, and may take several weeks.
Some offences by their very nature e.g., conspiracy cases,
cases of misappropriation, embezzlement, fraud, forgery,
sedition, acquisition of disproportionate assets by public
servants, cases of corruption against high public servants
and high public officials take longer time for investigation
and trial. Then again, the workload in each court, district,
region and State varies. This fact is too well known to merit
illustration at our hands. In many places, requisite number
of courts are not available. In some places, frequent
strikes by members of the bar interferes with the work
schedules. In short, it is not possible in the very nature of
things and present-day circumstances to draw a time-limit
beyond which a criminal proceeding will not be allowed to
go. Even in the USA, the Supreme Court has refused to
draw such a line. Except for the Patna Full Bench decision
under appeal, no other decision of any High Court in this
country taking such a view has been brought to our notice.
Nor, to our knowledge, in United Kingdom. Wherever a
complaint of infringement of right to speedy trial is made
the court has to consider all the circumstances of the case
including those mentioned above and arrive at a decision
whether in fact the proceedings have been pending for
an unjustifiably long period. In many cases, the accused
may himself have been responsible for the delay. In such
cases, he cannot be allowed to take advantage of his
own wrong. In some cases, delays may occur for which
neither the prosecution nor the accused can be blamed
but the system itself. Such delays too cannot be treated
as unjustifiable — broadly speaking. Of course, if it is a
minor offence — not being an economic offence — and
the delay is too long, not caused by the accused, different
considerations may arise. Each case must be left to be
decided on its own facts having regard to the principles
enunciated hereinafter. For all the above reasons, we are
of the opinion that it is neither advisable nor feasible
to draw or prescribe an outer time-limit for conclusion
of all criminal proceedings. It is not necessary to do
so for effectuating the right to speedy trial. We are also
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not satisfied that without such an outer limit, the right
becomes illusory.”
(Emphasis added)
In paragraph 27 of the decision in the case of P. Ramachandra Rao4,
this Court observed thus:
“27. Prescribing periods of limitation at the end of
which the trial court would be obliged to terminate the
proceedings and necessarily acquit or discharge the
accused, and further, making such directions applicable
to all the cases in the present and for the future amounts
to legislation, which, in our opinion, cannot be done by
judicial directives and within the arena of the judicial
law-making power available to constitutional courts,
howsoever liberally we may interpret Articles 32, 21, 141
and 142 of the Constitution. The dividing line is fine but
perceptible. Courts can declare the law, they can interpret
the law, they can remove obvious lacunae and fill the gaps
but they cannot entrench upon in the field of legislation
properly meant for the legislature. Binding directions can be
issued for enforcing the law and appropriate directions may
issue, including laying down of time-limits or chalking out a
calendar for proceedings to follow, to redeem the injustice
done or for taking care of rights violated, in a given case
or set of cases, depending on facts brought to the notice
of the court. This is permissible for the judiciary to do.
But it may not, like the legislature, enact a provision
akin to or on the lines of Chapter XXXVI of the Code
of Criminal Procedure, 1973.”
(Emphasis added)
The principles laid down in the decision will apply even to civil cases
before the trial courts. The same principles will also apply to a
direction issued to the High Courts to decide cases on a day-to-day
basis or within a specific time. Thus, the directions of the Court that
provide for automatic vacation of the order of stay and the disposal
of all cases in which a stay has been granted on a day-to-day basis
virtually amount to judicial legislation. The jurisdiction of this Court
cannot be exercised to make such a judicial legislation. Only the
[2024] 2 S.C.R. 981

High Court Bar Association, Allahabad v. State of U.P. & Ors.

legislature can provide that cases of a particular category should
be decided within a specific time. There are many statutes which
incorporate such provisions. However, all such provisions are usually
held to be directory.
29. Ideally, the cases in which the stay of proceedings of the civil/criminal
trials is granted should be disposed of expeditiously by the High
Courts. However, we do not live in an ideal world. A judicial notice
will have to be taken of the fact that except High Courts of smaller
strength having jurisdiction over smaller States, each High Court is
flooded with petitions under Article 227 of the Constitution of India for
challenging the interim orders passed in civil and criminal proceedings,
the petitions under Section 482 of the Cr.PC for challenging the
orders passed in the criminal proceedings and petitions filed in the
exercise of revisional jurisdiction under the CPC and the Cr. PC. A
judicial notice will have to be taken of the fact that in all the High
Courts of larger strength having jurisdiction over larger States, the
daily cause lists of individual Benches of the cases of the aforesaid
categories are of more than a hundred matters. Therefore, once a
case is entertained by the High Court and the stay is granted, the
case has a long life.
30. There is a huge filing of regular appeals, both civil and criminal in
High Courts. After all, the High Courts deal with many other important
matters, such as criminal appeals against acquittal and conviction,
bail petitions, writ petitions, and other proceedings that involve the
issues of liberty under Article 21 of the Constitution of India. The High
Courts deal with matrimonial disputes, old appeals against decrees of
civil courts, and appeals against appellate decrees. There are cases
where senior citizens or second or third-generation litigants are parties.
The High Courts cannot be expected to decide, on a priority basis or
a day-to-day basis, only those cases in which a stay of proceedings
has been granted while ignoring several other categories of cases
that may require more priority to be given.
31. The situation in Trial and district Courts is even worse. In 2002,
in the case of All India Judges’ Association & Ors. v. Union of
India & Ors.14, this Court passed an order directing that the judge-
to-population ratio within twenty years should be 50 per million. Even

14 [2002] 2 SCR 712 : (2002) 4 SCC 247
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as of today, we are not able to reach the ratio of even 25 per million.
The directions issued in the case of Imtiyaz Ahmed v. State of
Uttar Pradesh & Ors.15 have not been complied with by the States
by increasing the Judge strength of the Trial and District Courts.
The figures of pendency of cases in our trial Courts are staggering.
There are different categories of cases which, by their very nature,
are required to be given utmost priority, such as the cases of the
accused in jail and the cases of senior citizens. For example, there are
many legislations like the Hindu Marriage Act, 1955, the Protection of
Women from Domestic Violence Act, 2005, the Negotiable Instruments
Act, 1881 etc which prescribe specific time limits for the disposal of
cases. However, due to the huge filing and pendency, our Courts
cannot conclude the trials within the time provided by the statutes.
There is a provision in the Code of Criminal Procedure, 1973, in the
form of Section 309, which requires criminal cases to be heard on a
day-to-day basis once the recording of evidence commences. The
same Section provides that in case of certain serious offences against
women, the cases must be decided within two months of filing the
charge sheet. Unfortunately, our Criminal Courts are not in a position
to implement the said provision. Apart from dealing with huge arrears,
our Trial Courts face the challenge of dealing with a large number of
cases made time-bound by our constitutional Courts. Therefore, in
the ordinary course, the constitutional Courts should not exercise the
power to direct the disposal of a case before any District or Trial Court
within a time span. In many cases, while rejecting a bail petition, a
time limit is fixed for disposal of trial on the ground that the petitioner
has undergone incarceration for a long time without realising that
the concerned trial Court may have many pending cases where the
accused are in jail for a longer period. The same logic will apply to the
cases pending before the High Courts. When we exercise such power
of directing High Courts to decide cases in a time-bound manner, we
are not aware of the exact position of pendency of old cases in the
said Courts, which require priority to be given. Bail petitions remain
pending for a long time. There are appeals against conviction pending
where the appellants have been denied bail.
32. Therefore, constitutional Courts should not normally fix a time-bound
schedule for disposal of cases pending in any Court. The pattern of

15 [2017] 1 SCR 305 : (2017) 3 SCC 658
[2024] 2 S.C.R. 983

High Court Bar Association, Allahabad v. State of U.P. & Ors.

pendency of various categories of cases pending in every Court,
including High Courts, is different. The situation at the grassroots level
is better known to the judges of the concerned Courts. Therefore,
the issue of giving out-of-turn priority to certain cases should be best
left to the concerned Courts. The orders fixing the outer limit for the
disposal of cases should be passed only in exceptional circumstances
to meet extraordinary situations.
33. There is another important reason for adopting the said approach.
Not every litigant can easily afford to file proceedings in the
constitutional Courts. Those litigants who can afford to approach the
constitutional Courts cannot be allowed to take undue advantage by
getting an order directing out-of-turn disposal of their cases while
all other litigants patiently wait in the queue for their turn to come.
The Courts, superior in the judicial hierarchy, cannot interfere with
the day-to-day functioning of the other Courts by directing that only
certain cases should be decided out of turn within a time frame. In
a sense, no Court of law is inferior to the other. This Court is not
superior to the High Courts in the judicial hierarchy. Therefore, the
Judges of the High Courts should be allowed to set their priorities on
a rational basis. Thus, as far as setting the outer limit is concerned,
it should be best left to the concerned Courts unless there are very
extraordinary circumstances.
IX. Procedure to be adopted by High Courts while passing interim
order of stay of proceedings and for dealing with the applications
for vacating interim stay
34. At the same time, we cannot ignore that once the High Court stays
a trial, it takes a very long time for the High Court to decide the main
case. To avoid any prejudice to the opposite parties, while granting
ex-parte ad-interim relief without hearing the affected parties, the High
Courts should normally grant ad-interim relief for a limited duration. After
hearing the contesting parties, the Court may or may not confirm the
earlier ad-interim order. Ad-interim relief, once granted, can be vacated
or affirmed only after application of mind by the concerned Court. Hence,
the Courts must give necessary priority to the hearing of the prayer
for interim relief where ad-interim relief has been granted. Though the
High Court is not expected to record detailed reasons while dealing
with the prayer for the grant of stay or interim relief, the order must give
sufficient indication of the application of mind to the relevant factors.
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35. An interim order passed after hearing the contesting parties cannot
be vacated by the High Court without giving sufficient opportunity
of being heard to the party whose prayer for interim relief has been
granted. Even if interim relief is granted after hearing both sides, as
observed earlier, the aggrieved party is not precluded from applying
for vacating the same on the available grounds. In such a case, the
High Court must give necessary priority to the hearing of applications
for vacating the stay, if the main case cannot be immediately taken
up for hearing. Applications for vacating interim reliefs cannot be
kept pending for an inordinately long time. The High Courts cannot
take recourse to the easy option of directing that the same should
be heard along with the main case. The same principles will apply
where ad-interim relief is granted. If an ad-interim order continues for
a long time, the affected party can always apply for vacating ad-interim
relief. The High Court is expected to take up even such applications
on a priority basis. If an application for vacating ex-parte ad interim
relief is filed on the ground of suppression of facts, the same must
be taken up at the earliest.
D. CONCLUSIONS
36. Hence, with greatest respect to the Bench which decided the case,
we are unable to concur with the directions issued in paragraphs
36 and 37 of the decision in the case of Asian Resurfacing1. We
hold that there cannot be automatic vacation of stay granted by the
High Court. We do not approve the direction issued to decide all
the cases in which an interim stay has been granted on a day-to-
day basis within a time frame. We hold that such blanket directions
cannot be issued in the exercise of the jurisdiction under Article 142
of the Constitution of India. We answer both the questions framed
in paragraph 5 above in the negative.
37. Subject to what we have held earlier, we summarise our main
conclusions as follows:
a. A direction that all the interim orders of stay of proceedings
passed by every High Court automatically expire only by reason
of lapse of time cannot be issued in the exercise of the jurisdiction
of this Court under Article 142 of the Constitution of India;
b. Important parameters for the exercise of the jurisdiction under
Article 142 of the Constitution of India which are relevant for
deciding the reference are as follows:
[2024] 2 S.C.R. 985

High Court Bar Association, Allahabad v. State of U.P. & Ors.

(i) The jurisdiction can be exercised to do complete justice
between the parties before the Court. It cannot be exercised
to nullify the benefits derived by a large number of litigants
based on judicial orders validly passed in their favour who
are not parties to the proceedings before this Court;
(ii) Article 142 does not empower this Court to ignore the
substantive rights of the litigants;
(iii) While exercising the jurisdiction under Article 142 of the
Constitution of India, this Court can always issue procedural
directions to the Courts for streamlining procedural aspects
and ironing out the creases in the procedural laws to ensure
expeditious and timely disposal of cases. However, while
doing so, this Court cannot affect the substantive rights of
those litigants who are not parties to the case before it.
The right to be heard before an adverse order is passed
is not a matter of procedure but a substantive right; and
(iv) The power of this Court under Article 142 cannot be
exercised to defeat the principles of natural justice, which
are an integral part of our jurisprudence.
c. Constitutional Courts, in the ordinary course, should refrain
from fixing a time-bound schedule for the disposal of cases
pending before any other Courts. Constitutional Courts may
issue directions for the time-bound disposal of cases only in
exceptional circumstances. The issue of prioritising the disposal
of cases should be best left to the decision of the concerned
Courts where the cases are pending; and
d. While dealing with the prayers for the grant of interim relief,
the High Courts should take into consideration the guidelines
incorporated in paragraphs 34 and 35 above.
38. We clarify that in the cases in which trials have been concluded as
a result of the automatic vacation of stay based only on the decision
in the case of Asian Resurfacing1, the orders of automatic vacation
of stay shall remain valid.
39. The reference is answered accordingly. We direct the Registry to
place the pending petitions before the appropriate Benches for
expeditious disposal.
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Pankaj Mithal, J.
1. Concurring with the opinion expressed by my brother Justice Oka for
himself and other puisne Judges, including the Hon’ble Chief Justice, I
would like to add that in Asian Resurfacing of Road Agency Private
Limited & Anr. vs. Central Bureau of Investigation1, this Court
while deciding the issues arising therein went ahead in observing
and directing that where a challenge to an order framing charge is
entertained and stay is granted, the matter must be decided on day to
day basis so that the stay may not continue for an unduly long time.
It was further observed that though no mandatory time limit may be
fixed for deciding such a challenge, the stay order may not normally
exceed two to three months or a maximum of six months unless it is
extended by specific speaking order. Further directions were issued
that in all pending matters before the High Court or other Courts
relating to Prevention of Corruption Act or all other civil or criminal
cases where stay is operating in pending trials, it will automatically
lapse after six months unless a speaking order is passed extending
the same. The Trial Court may, on expiry of the above period resume
the proceedings without waiting for any intimation unless express
order extending the stay is produced before the Court.
2. The above directions in Asian Resurfacing issued in exercise of
power of doing complete justice under Article 142 of the Constitution
of India are analogous to the constitutional provision as contained in
clause (3) of Article 226 of the Constitution of India which has been
inserted with effect from 1.8.1979 vide the Constitution (Forty-fourth
Amendment) Act, 1978. It reads as under:
“(3) Where any party against whom an interim order,
whether by way of injunction or stay or in any other manner,
is made on, or in any proceedings relating to, a petition
under clause (1), without—
(a) furnishing to such party copies of such petition and
all documents in support of the plea for such interim
order; and
(b) giving such party an opportunity of being heard,

1 [2018] 2 SCR 1045 : (2018) 16 SCC 299
[2024] 2 S.C.R. 987

High Court Bar Association, Allahabad v. State of U.P. & Ors.

makes an application to the High Court for the vacation
of such order and furnishes a copy of such application to
the party in whose favour such order has been made or
the counsel of such party, the High Court shall dispose
of the application within a period of two weeks from the
date on which it is received or from the date on which
the copy of such application is so furnished, whichever is
later, or where the High Court is closed on the last day of
that period, before the expiry of the next day afterwards
on which the High Court is open; and if the application is
not so disposed of, the interim order shall, on the expiry
of that period, or, as the case may be, the expiry of the
said next day, stand vacated.”
3. No doubt, the above provision is in respect to petitions filed before the
High Court invoking the extraordinary jurisdiction of the Court and is
not meant to be applied specifically to other proceedings, nonetheless
the principles behind the said provision can always be extended to
other proceedings as has been done in Asian Resurfacing. It is worth
noting that wherever under a statute any such time limit has been
prescribed or is fixed for deciding a particular nature of proceeding,
it has been held to be directory in nature rather than mandatory. So
appears to be the position with regard to the applicability of Article
226(3) of the Constitution of India.
4. It is well recognised that no one can be made to suffer on account of
any mistake or fault of the Court which means that even delay on part
of the Court in deciding the proceedings or any application therein
would not be detrimental to any of the parties to the litigation much
less to the party in whose favour an interim stay order is passed.
5. It is settled in law that grant of interim stay order ought to be
ordinarily by a speaking order and therefore as a necessary corollary,
a stay order once granted cannot be vacated otherwise than by a
speaking order, more so, when its extension also requires reasons
to be recorded.
6. It is noticeable that under Article 226(3) of the Constitution of India,
the automatic vacation of the stay order envisages making of an
application to the High Court for the vacation of the interim stay
order. Therefore, filing of an application for vacating the stay order
is a sine qua non for triggering the automatic vacation of the stay
988 [2024] 2 S.C.R.

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order under Article 226(3) if such an application is not decided within
the time prescribed of two weeks.
7. In other words, applying the above analogy or principle, the stay order
granted in any proceedings would not automatically stand vacated
on the expiry of a particular period until and unless an application to
that effect has been filed by the other side and is decided following
the principles of natural justice by a speaking order.
8. Sometimes, in quest of justice we end up doing injustice. Asian
Resurfacing is a clear example of the same. Such a situation created
ought to be avoided in the normal course or if at all it arises be
remedied at the earliest. In doing so, we have to adopt a practical
and a more pragmatic approach rather than a technical one which
may create more problems burdening the courts with superfluous
or useless work. It is well said that useless work drives out the
useful work. Accordingly, it is expedient in the interest of justice
to provide that a reasoned stay order once granted in any civil or
criminal proceedings, if not specified to be time bound, would remain
in operation till the decision of the main matter or until and unless
an application is moved for its vacation and a speaking order is
passed adhering to the principles of natural justice either extending,
modifying, varying or vacating the same.
9. The reference made to this Court is answered and disposed of
accordingly.

Headnotes prepared by: Ankit Gyan Result of the case:
Reference answered.