Supervision by the Supreme Court over the High Courts: A Constitutional quagmire

Bar & Bench January 22 2019

Dhyan Chinnappa

In Asian Resurfacing of Road Agency v. Central Bureau of Investigation  (hereinafter “Asian Resurfacing”), the Supreme Court issued certain wide-ranging directions.  The Supreme Court directed 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 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 is more important than having the trial finalized.”

This direction assumes importance, as it virtually annuls every order that is passed by the High Courts including those in exercise of powers under Article 227 of the Constitution of India and Section 482 of the Criminal Procedure Code (CrPC) with nothing else but passage of time.  The legality of such a direction and the Constitutional issues that arise are debated here. 

In the Constitutional scheme, the Supreme Court and the High Courts are Courts of record. The High Court is not a Court subordinate to the Supreme Court, except for the appellate power conferred on the latter.  The power of the High Court is wider, as it exercises powers to issue writs for infractions of all legal rights, and also has the power of superintendence over all “subordinate courts”.  Such power of superintendence is absent in the Supreme Court, which being the highest Constitutional court, was never intended to supervise subordinate courts or the High Courts.  

The powers of the Supreme Court vis-à-vis the High Courts was considered at length in Tirupati Balaji Developers (P) Ltd v. State of Bihar. The Supreme Court was confronted with a unique situation where the Patna High Court took strong affront to certain directions issued by the Supreme Court with respect to a proceeding pending before it.  A Division Bench of the High Court took the view that directions issued to the Registrar of the High Court to provide certain information amounted to treating the High Court as a litigant. Therefore, it directed the order passed by it to be placed before the Supreme Court. 

In this context, the Supreme Court examined the issues that arose and laid down not merely some ground rules in interactions with High Court, but also the Constitutional scheme with regard to the powers of the High Court and Supreme Court.  Some of the notable conclusions on the powers of the two Constitutional courts as laid down by the Supreme Court are as follows:

  • The High Court is not a court “subordinate” to the Supreme Court
  • The power to issue prerogative writs is wider with the High Courts than with the Supreme Court.
  • Power of superintendence is only granted to High Courts and not to the Supreme Court
  • What places the Supreme Court at a superior place in the hierarchy is that it is the highest court of appeal, law declared by it is binding on all Courts, it has the power to transfer cases from one High Court to another or to itself and Article 144, which requires all authorities including the High Court to act in aid of the Supreme Court
  • The power of appeal implies the power to reverse, confirm, annul or modify the decree of the High Court including the direction to rehear the matter and comply with such directions as may accompany the order of remand.  This power of appeal includes the power to exercise such other incidental or ancillary powers

In Tirupati Balaji, the Supreme Court recognized that despite having appellate powers, the Supreme Court has always been cautious in issuing “directions” to the High Court and has been using alternative and polite expressions such as “request”, “expected to”, “trust and hope” etc. It was held that such practices have developed and gained ground as tradition, and that there has hardly been any occasion where either the High Court or the Supreme Court has disrespected the other.  

Given this background, and the fact that the Supreme Court hesitates to chastise or supervise the High Courts, the directions issued in Asian Resurfacing require to be examined. The interim orders passed by the High Court in exercise of its powers can certainly be interfered with by the Supreme Court, but that is only in exercise of its appellate power. 

"Given the fact that the Supreme Court hesitates to chastise or supervise the High Courts, the directions issued in Asian Resurfacing require to be examined."

When the High Court exercises jurisdiction to pass an interim order, the power exercised therein is either power vested in a statute or Constitutional power. The High Court, being a Constitutional court and a court of record, cannot be limited in its exercise of power by any restrictions placed on it by the Supreme Court, unless the Supreme Court interprets a statute or the Constitution and prescribes it as a matter of law. Such is not the case in the directions issued in Asian Resurfacing.

If the power to annul an order of the High Court simply by passage of time inheres in the Supreme Court, can it then also direct that no interim order can be granted without its consent or that the High Court must not grant any interim order at all or that all final orders should be passed in a manner that the Supreme Court directs? The directions issued in Asian Resurfacing can never be in exercise of appellate power, as they do not concern the case in question. T hey are general directions to the High Court to deal and determine cases in a particular manner. There is no source of power in the Constitution to issue such directions to the High Court. 

To take this a step further, can a High Court, in exercise of supervisory jurisdiction (which it undoubtedly possesses), direct all civil courts where an injunction has been granted to decide a suit within six months failing which the injunction will stand automatically dissolved, unless the court reviews the injunction after every six months and determines if it is to be continued or not?  The answer undoubtedly would be that it certainly cannot, as that would be a course not permitted by any statute or the Constitution. The power of supervision cannot be exercised to override a statute or read words into the statute itself.

As held in Ouseph Mathai v M. Abdul Khadir,

“...power under this Article (Article 227) cast a duty upon the High Court to keep the inferior courts and tribunals within the limits of their authority and that they do not cross the limits, ensuring the performance of duties by such courts and tribunals in accordance with law conferring powers within the ambit of the enactments creating such courts and tribunals”. 

Viewed from this angle as well, the directions in Asian Resurfacing are Constitutionally unsustainable.

There is also a practical difficulty. The Supreme Court appears to have been oblivious to the shortage of judges in the High Courts as on date. High Courts throughout the country are reeling from a shortage of judges.  Old cases are hardly taken up for final hearing in view of paucity of time; yet High Courts throughout the country are required to examine tens of thousands of cases to determine and to pass a reasoned order if an interim order granted earlier should be continued. This is a significant and sheer waste of judicial time and best avoided.  

The judgment in Asian Resurfacing is rather paradoxical, especially when one notices other judgments of the Supreme Court which forbid the High Court from instructing as to how lower courts must pass orders. In Madan Mohan v. State of Rajasthan, the Supreme Court held as follows:

No superior Court in hierarchical jurisdiction can issue such direction/mandamus to any subordinate Court commanding them to pass a particular order on any application filed by any party. The judicial independence of every Court in passing the orders in cases is well settled. It cannot be interfered with by any Court including superior Court.”

As much as this dictum applies to High Courts, it applies to the Supreme Court as well.  Judicial independence being the hallmark of justice delivery in this country, to issue directions as has been done in Asian Resurfacing is constitutionally improper and requires correction post-haste. 

The author is a Senior Advocate of the Karnataka High Court.

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