NEW DELHI: The Supreme Court has formed a five-judge Constitution bench led by Chief Justice of India D Y Chandrachud to examine its 2018 judgement on 'Asian Resurfacing case' which had ordered that there would be automatic lifting of stay in all civil and criminal matters upon expiry of six-month time.
The bench would also comprise Justices Abhay S Oka, J B Pardiwala, Pankaj Mithal and Manoj Misra, according to a notification issued on December 2, by the Assistant Registrar (Listing).
The communication stated that the matter would be taken up on December 5 after hearing a case related to 'In Re: Section 6A of the Citizenship Act, 1955 and connected cases listed on the date.
On December 1, the Supreme Court had expressed reservations with
the judgement and decided to re-examine the principle laid down in the judgment for it is liable to result in a miscarriage of justice.
The bench had then said there is no gainsaying that stays of indefinite nature will result in prolonging the civil or criminal proceedings unduly, at the same time, it needs to be factored in that the delay is not always on account of the conduct of the parties involved.
The court had also said delay may also be occasioned by the inability of the courts to take up the proceedings expeditiously.
After hearing senior advocate Rakesh Dwivedi, the bench had decided to put the matter before the Constitution bench and sought assistance of Attorney General R Venkatramani or Solicitor General Tushar Mehta.
Appearing for High Court Bar Association, Allahabad, Dwivedi said the 2018 directions were causing a lot of difficulties. In fact, those directions were in nature of Obiter Dicta, he said.
"Question was if under Article 21 of the Constitution to ensure speedy trial, could the power under Article 226 of the High Court be curtailed like this," he asked.
The bench agreed to his contention, saying it is not always due to lapse of parties that the matters are not taken up, court can say stay will operate till a particular date or till the further orders.
"We are of the view that the principle which has been laid down in the 2018 decision to the effect that a stay shall be automatically stand vacated, which would mean an automatic vacation of stay without the application of judicial mind to whether the stay should or should not be extended further, is liable to result in a miscarriage of justice," the bench said in its brief order.
The court said since the previous judgment was passed a three-judge bench, the matter is required to be reconsidered by a five-judge bench.
The court also indicated the matter would be listed on an early date.
"We have to really reconsider Asian Resurfacing. In fact, the Registrar told me that there is a review pending in Asian Resurfacing itself. We will list it early. In fact it won't take more than half an hour to resolve," the CJI had said.
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