A powerful antidote to Judicial Delay! How can it be done?

The judgment of the Supreme Court of India in Asian Resurfacing Road Agency v. Central Bureau of Investigation has increased quite a flurry for its direction with respect to appellate court orders that stay their subordinate trial court proceedings.

The controversial dictum in Asian Resurfacing is that any order staying civil or criminal proceedings now lapses every 6 months unless increased by a speaking order that clarifies an exception.

The main criticism against Asian Resurfacing has been well explained by Senior Advocate Dhyan Chinappa who contends that the inclination is “constitutionally improper” as it virtually cancels every order of the High Court exercised under Article 227 of the Constitution and Section 482 of the Criminal Procedure Code [Cr.P.C], with nothing but the passage of time.

Mr. Chinappa continues to argue that this direction amounts to the Supreme Court sitting in supervisory authority over the High Courts, something contrary to our Constitutional scheme and several judgments of the SC.

The principle that the HC is not inferior or subordinate to the Supreme Court leaves no debate. Nonetheless, critics of this judgment have overlooked two extremely important perspectives.

The first is that this judgment doesn’t annul “every order” of the High Court simply with the passage of time.  It only causes those orders that “stay the trial proceedings of courts below” to lapse with the passage of time, wherein even these orders can be extended as per the High Court’s own choice.  If this is deemed as supervisory or unconstitutional, then Appellate Constitutional Courts will be left with very small room to guard most basic rules of fair procedure that ought to govern justice. It is heartening to have seen the HC of Karnataka lately carve out this position in a case before it.

Secondly, it must be recognized that even when justice demands that a trial ought to be completed in 6 months, waiting for trial proceedings for 6 months must be made a thing of the past. There is really no reason why proceedings in any trial must be stayed for 6 months or more, save in extraordinary events. Allowing trial proceedings to have stayed for longer than 6 months encourages parties to abuse the process of law and move an appellate court merely to stall a trial that has an undeniable conclusion.

In countries like the USA, appellate courts do not easily entertain appeals from interlocutory and interim orders in trials, and rather largely expend their time and resources on challenges to final orders and judgments. In India, sadly, every other lawyer who finds himself fast losing ground in a trial runs to an Appellate Court to confront some aspect of the trial proceedings after having always made out “an exceptional case” under Article 227 of the Constitution and Section 482 of the Cr.P.C.

If we haven’t come across that suit or criminal trial that was creeping for a decade because it lost many years being accidentally stayed by an Appellate Court, we either don’t want to accept the truth or haven’t followed much law in India.  The modus operandi is so predictable. As soon as one side feels something is going to drastically affect them in a trial – like a key witness being examined- the affected side presses the nuke button, an appeal that effectively stays the trial.

Once the topic is admitted in the Appellate Court, and a largely ex-parte stay on the trial proceedings is obtained on some flimsy pretext, the appellate lawyers are sure not to pursue it further with the registry. The goal is to let it lie in cold storage. If the matter proceeds up, you simply have to make sure you deeply upset the judge with the lamest postponement that he adjourns it for several months at once. Of course, if the adjournment itself is the punishment, no judge will lift the stay.  In the event the appealing lawyer loses at the court of the first appeal, depending on which counsel they hire, they may still stand a chance in the SC.

As for the poor litigator on the other side, you can quote the entire Constitution if you like, but you’d still fail to convince him that Constitutional justice is more than a sham. And the closer to deciding the poor litigant on the wrong side of the stay is, the more frustrated he will be.

For all our crying about the placement of judges and filling up of judicial vacancies to combat judicial delay, we cannot be blind to legal procedures that contribute equally to judicial delay. From never-ending police investigation to long court dates to untimed courtroom arguments to poor case management systems to lawyers who abuse section 482 of the Cr.P.C to indefinitely stayed trials, the rot has spread far and wide.

It is for this cause that every lawyer who feels true shame at our pitiful state of judicial delay should welcome the spirit of Asian Resurfacing with open arms.

There is no doubting that the judgment in Asian Resurfacing leaves us with some questions. For example, if the issue of delay wasn’t directly before the Court, why was the Court venturing into this issue?


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