Asian Resurfacing: A powerful antidote to Judicial Delay

Bar & Bench February 2 2019
section 319, national security act

Abishek Jebaraj

The judgment of the Supreme Court of India in Asian Resurfacing Road Agency v. Central Bureau of Investigation [Asian Resurfacing], has raised quite a flurry for its direction with regard 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 six months, unless extended by a speaking order that clarifies an exception.

The main grievance against Asian Resurfacing has been well articulated by Senior Advocate Dhyan Chinappa who argues that the direction is “constitutionally improper” because it virtually annuls 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 proceeds to argue that this direction amounts to the Supreme Court sitting in supervisory jurisdiction over the High Courts, something contrary to our Constitutional scheme and several judgments of the Supreme Court.

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

The first is that this judgement does not annul “every order” of the High Court merely 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 those orders can be extended as per the High Court’s own discretion.  If this is considered as supervisory or unconstitutional, then Appellate Constitutional Courts will be left with very little room to guard most basic rules of fair procedure that ought to govern justice. It is heartening to have seen the High Court of Karnataka recently carve out this position in a case before it.

Secondly, it must be understood that even when justice demands that a trial ought to be completed in 6 months, staying trial proceedings for 6 months must be made a thing of the past. There is simply no reason why proceedings in any trial must be stayed for 6 months or more, save in exceptional circumstances. Allowing trial proceedings to be 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 inevitable conclusion.

In countries like the United States, appellate courts do not easily entertain appeals from interlocutory and interim orders in trials, and instead 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 challenge 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 crawling for a decade because it lost several years being unnecessarily stayed by an Appellate Court, we either don’t want to accept the truth or haven’t practiced 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 matter is admitted in the Appellate Court, and a largely ex-parte stay on the trial proceedings is procured 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 comes up, you simply have to make sure you deeply upset the judge with the lamest adjournment 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 first appeal, depending on which counsel they hire, they may still stand a chance in the Supreme Court.

As for the poor litigant 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 judgment the poor litigant on the wrong side of the stay is, the more frustrated he will be.

For all our crying about the appointment 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 court room 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 reason that every lawyer who feels true shame at our pathetic state of judicial delay should welcome the spirit of Asian Resurfacing with open arms.

There is no denying that the judgment in Asian Resurfacing leaves us with some questions. For instance, if the issue of delay wasn’t directly before the Court, why was the Court venturing into this issue? [Given that our Supreme Court does this frequently, it isn’t fair to pick on Asian Resurfacing for this reason]. And, if the motive was curbing judicial delay, shouldn’t the Supreme Court also be wholly bound by the same direction? [This is an entirely different debate].

For now, however, we must be thankful for the spirit of Asian Resurfacing and pray for its codification.

The author is a Delhi-based advocate and Managing Partner of Isaac & Jacob Advocates. The views expressed in this article are those of the author. Bar & Bench does not necessarily subscribe to the same.

The author is presently arguing a case in which he is relying on Asian Resurfacing, details of which have not been discussed in this article.