Hon'ble Ajay Bhanot,J.

[Per: Hon'ble Ajay Bhanot,J.]

1. The judgment is being structured in the following conceptual framework to facilitate the discussion:

2. An interim order was granted by this Court on 25.07.2019 in favour of the applicant in application under Section 482 Cr.P.C No. 28574 of 2019 ( Chandrapal Singh Vs State of U.P. and another ) staying the criminal trial. The informant did not file a counter affidavit nor did he enter appearance through counsels in the aforesaid proceedings before this Court. The State Government too did not file a counter affidavit in the said case.

3. The matter was listed on several occasions but could not be taken up for hearing due to paucity of time and large docket size of the Court. The first informant moved the learned trial court on the footing that the stay order granted by this Court stood vacated by operation of the judgment of the Supreme Court in Asian Resurfacing of Road Agency Private Limited and Another Vs Central Bureau of Investigation1 . The trial court commenced the criminal trial proceedings in compliance of the directions in Asian Resurfacing (supra). Non bailable warrants were issued against the applicant by the trial court, leading to his arrest. He was granted bail subsequently by this Court.

4. According to the applicant's counsel, the interim order in the applicant's favour was automatically vacated and the applicant suffered imprisonment for no fault of his. The applicant now faces a vexatious prosecution.

5. The section 482 Cr.P.C. application as well as the bail application were later connected and heard together by a Single Judge Bench of which one of us (Ajay Bhanot, J.) was a member.

6. A number of counsels, and the Allahabad High Court Bar Association appeared before the Court and advanced various submissions. The intervention application of the Bar was allowed. The complications arising from the compliance of the directions in Asian Resurfacing (supra), were brought to the notice of the Court.

7. The Single Judge Bench framed the following questions for consideration:

8. In view of the constitutional importance of the matter and the wide ranging consequences in the State of U.P. resulting from the directions in Asian Resurfacing (supra), this Full Bench has been constituted to decide the controversy. Applications made by various parties before the Full Bench have been heard.

I(B). APPLICATIONS:

9. The application filed on behalf of the High Court Bar Association, Allahabad has meticulously highlighted the widespread complications caused by the implementation of the directions issued in Asian Resurfacing (supra) in the State of U.P. The application on behalf of the Bar Association is filed by Shri Ashok Kumar Singh, its President and Sri Nitin Sharma, its Secretary. The application has been argued by Shri Nitin Sharma, learned counsel.

10. According to the applicant matters are often not taken up for hearing due to paucity of time in the Court. Parties whose conduct cannot be faulted suffer due to the automatic vacation of interim orders by operation of the directions in Asian Resurfacing (supra). Interim orders extended by the High Court citing paucity of time are being disregarded by the trial courts. Pursuant to the automatic vacation of stay orders criminal and civil proceedings are set on foot before the trial courts and tribunals alike and the parties suffer imprisonment and/or other civil and criminal consequences.

11. On earlier occasions the High Court Bar Association, Allahabad had filed applications before the Registry of Allahabad High Court, drawing attention to the plight of the litigants and the learned counsels in these matters.

12. The illustrative cases cited in the application depict that the litigants virtually before all courts and tribunals, irrespective of jurisdictions or the nature of lis are being adversely impacted by the implementation of the directions in Asian Resurfacing (supra).

13. Some of the paragraphs of the application are being extracted in full to demonstrate the extent of the grievances of the litigants and the counsels alike:

14. That the applicant HCBA would like to place on record the hardships being faced by the litigants due to automatic vacation of interim orders. The applicant humbly submits that the hardships have arisen not only due to direct application of the decision of Asian Resurfacing, but also due to its misinterpretation whereby all interim reliefs granted by the High Court are treated as vacated by the district courts. A few such instances are illustratively listed herein below:

15. That a unique practical difficulty has arisen by the operation of the directives issued in the Asian Resurfacing Case. Thus, as an unintended result of the operation of Asian Resurfacing(supra), the interim orders get vacated exposing the litigants to Non-Bailable Warrants (in criminal cases) and eviction, dispossession, and demolition in civil cases without any fault of theirs. In fact, without any express change in circumstances, the litigant faces adverse consequences having detrimental effect on his fundamental rights.

20. That, therefore, without there being any laxity on the part of the litigant or his/her counsel or the Registry, the interim orders do not get extended within the time-frame of six months, thereby leading to their cessation in view of the directions made by the Hon'ble Court in Asian Resurfacing (supra).

24. That with respect to orders falling in Category (i) it is submitted that the Hon'ble Court grants interim relief intending it to last the lifetime of the petition. That natural interference which can be drawn is that this Hon'ble Court while entertaining the matter found it fit enough for its intervention to protect the interest of the litigant. However, in view of the order passed by the Hon'ble Supreme Court in Asian Resurfacing Case the respondent/ Opposite party in the petition now strategically avoids filing any stay vacation application/counter affidavit before the Hon'ble Court and does not even contest the petition on its merits. They simply wait for the period of 6-months to lapse whereupon proceedings before the courts below resume.

30. That it has been routinely observed that the opposite party simply awaits the expiry of six months whereafter the interim relief granted by the Hon'ble Court becomes ineffective. This constrains the petitioner/applicant to move either a stay extension application or seek extension of interim relief by oral mentioning. As has been indicated above, owing to an overflowing docket of such stay extension cases, the interim relief does not get extended due to paucity of time. Thus, for no fault of his, and despite having a prima facie case on merits, a litigant is compelled to face proceedings before the courts below.

34. That however due to heavy docket of stay extension cases, on the subsequent date the matter may not get heard which would result in the vacation of the interim order. On some occasions the Hon'ble Court has been pleased to extend interim orders citing paucity of time. However, even these orders by which the interim order is extended citing paucity of time is not being acknowledged by the trial court. Thus, the decision of the Hon'ble Supreme Court has created an unintended consequence under which the courts below have been constrained to disregard the orders passed by the High Court.

35. That it is humbly submitted that once stay has been granted by this Hon'ble Court by means of a speaking order, it continues until the court holds otherwise by means of another speaking order. Therefore, a stay order extended due to paucity of time remains a speaking order unless this Hon'ble Court reflects otherwise by another order. Therefore, the term speaking order is being interpreted wrongly by the courts below resultin in an unsavoury situation where subordinate courts are sitting over judgment of this Hon'ble Court's orders.

44. That it is also noteworthy to state here that the existing situation is being exploited by respondents. They stand to gain an unenviable advantage without even contesting the case on merits. The applicant herein (HCBA) has no doubt in its mind that the Hon'ble Supreme Court clearly did not intend to reward such unscrupulous respondents.

46. That the operation of the decision of the Supreme Court is already resulting in large number of petitions being rendered infructuous. As more and more respondents decide against filing counter affidavit, automatic vacation of interim orders results in virtual decision on the merits of the case.

49. That the HCBA faces situations regularly on working days where the members of the Bar approach and request for intervening in their matters and get their grievances redressed by the Registry of the Hon'ble High Court or before the Hon'ble Judge where the matter is listed or is on board but could not be taken up or considered which ultimately results in non-passing of any order on the stay extension application.

50. That the HCBA twice a week transmits hundreds of stay extension applications details to the registry requesting for posting of the stay extension application before the appropriate Hon'ble Court as early as possible. This exercise is also getting frustrated and the earnest requests are also not proving very fruitful because the applications are not being heard on time. Copies of such applications are being attached as Annexure No. 1 to this affidavit.

51. That in the meantime, either non-bailable warrants are issued or the litigant gets arrested and sent to judicial custody in criminal matters and in civil matters the litigants face eviction, dispossession and demolition or loss of a rightful claim. As such, the applicant is constrained to seek the following reliefs from the court. The applicant is cognisant of the fact that the directions of the Supreme Court must be obeyed at any cost. At the same time, the applicant holds an earnest belief that some relief would be given to the litigants and the lawyers alike."

14. Various prayers have been made by the High Court Bar Association, Allahabad in the application which is supported by an affidavit. The aforesaid prayers in effect seek clarifications of the directions issued by the Supreme Court in paras 34, 36, 37 in Asian Resurfacing (supra).

APPLICATION FILED IN APPLICATION U/S 482 Cr.P.C . No. 36085 OF 2019 (RAJU AGRAWAL VS STATE OF U.P. AND ANOTHER

15. An interim order was granted in favour of the applicant on 30.09.2019 in Criminal Misc. 482 Application No. 36085 of 2019 ( Raju Agrawal Vs State of UP and another ). By operation of Asian Resurfacing (supra) after lapse of the prescribed period of time the interim order was automatically vacated. Vacation of the interim order happened due to excessive work load before this Court, and failure of the Registry to list the matter and for no fault of the applicant. It is contended that devoid of interim protection the applicant faces a threat to his liberty, and his remedy before this Court will be rendered futile in case the application is not allowed.

16. The application in effect seeks modification/clarification of the directions issued by the Supreme Court in Asian Resurfacing (supra).

APPLICATION IN APPLICATION UNDER SECTION 482 Cr.P.C . No. 28574 OF 2019

17. The applicant in the instant case has also filed a similar application before us (Criminal Misc. Application No. 28574 of 2023 ( Chandrapal Singh Vs State of U.P. and another ) seeking modification of the directions in Asian Resurfacing (supra). In the absence of such modifications the applicant will continue to face the harassment of a frivolous criminal case.

I(C). SUBMISSIONS OF LEARNED COUNSELS:

18. Heard Shri Gaurav Mehrotra, learned counsel assisted by Shri Akbar Khan, learned counsel, Ms. Maria Fatima, learned counsel, Ms. Alina, learned counsel, Shri Swapnil Kumar, learned counsel, Shri Sushil Shukla, learned counsel, Shri Nitin Sharma, learned counsel, Shri Rahul Agarwal, learned counsel, Shri Imranullah, learned counsel, Shri Rajrshi Gupta, learned counsel, Shri Kunal Shah, learned counsel, Ms. Gunjan Jadwani, learned counsel, Shri Ram Kaushik, learned counsel and Shri Saurabh Pandey, learned counsel, Shri Vishnu Behari Tewari, learned counsel, Shri Tarun Agrawal, learned counsel, Shri Nadeem Murtaza, learned counsel has appeared through video conferencing from Lucknow. Shri Manish Goyal, learned Additional Advocate General assisted by Shri Rupak Chaubey, learned A.G.A.-I have appeared for the State of Uttar Pradesh. Ms. Anjali Goklani, learned counsel has also assisted the learned Additional Advocate General.

19. The following submissions were made by the learned counsels:

20. Shri Manish Goyal, learned Additional Advocate General has appeared on behalf of the State. Shri Manish Goyal, learned Additional Advocate General has contended that the State is committed to ensuring fair and equal justice to all citizens. The State cannot support a situation where the interim orders granted in favour of litigant are getting vacated without opportunity of hearing and for no fault of their. According to the learned Additional Advocate General the High Court cannot redress the grievances of the said litigants. However, the directions in Paras 34, 36, 37 of Asian Resurfacing (supra) raise substantial questions relating to interpretation of the Constitution which have to be framed and addressed promptly in view of the prevailing situation in the State. The learned Additional Advocate General has lastly reserved the right of the State to make applications in specific cases for expediting proceedings in the interest of justice and as per law.

21. Shri Vishnu Behari Tewari, learned counsel and Shri Tarun Agrawal, learned counsel to the contrary have contended that no substantial questions as to interpretation of the Constitution can arise as law laid down by the Supreme Court is final.

II A. Asian Resurfacing I,II,III &IV : Fazalullah Khan Vs M. Akbar Contractor

22. The Bench of three Hon'ble Judges of the Supreme Court in Asian Resurfacing of Road Agency Private Limited and Another Vs Central Bureau of Investigation6 at the outset reproduced the order of the learned Bench of two Judges of the Supreme Court which defined the issue for consideration:

23. The Supreme Court in Asian Resurfacing (supra) thereafter enlarged the scope of the issues under examination and considered a further question as to the approach adopted by the High Court in dealing with the challenge to the order framing charge:

(emphasis supplied)

24. Following observations as regards delays in criminal trials and its "deleterious effect" on the administration of justice were made in Asian Resurfacing (supra):

25. Finally the Supreme Court in Asian Resurfacing (supra) extended the mandate of speedy justice to all civil and criminal cases, pending before all High Courts in which interim orders staying civil suits and criminal trials were granted and issued the following directions:

(emphasis supplied)

26. It needs to be mentioned that Asian Resurfacing (supra) decided the issue as regards nature of order of framing of the charge and remedies against it by holding thus:

27. The issue of compliance of the directions (paras 34, 36, 37) in Asian Resurfacing (supra) arose in Asian Resurfacing of Road Agency Private Limited and Another v. Central Bureau of Investigation7 , (hereinafter referred to as "Asian Resurfacing-II"), wherein the aforesaid directions were emphatically reiterated:

2. The learned Additional Chief Judicial Magistrate, Pune, by his order dated 4-12-2019, has instead of following our judgment in letter as well as spirit, stated that the complainant should move an application before the High Court to resume the trial. The Magistrate goes on to say:"The lower court cannot pass any order which has been stayed by the Hon'ble High Court, Bombay with due respect of ratio of the judgment in Asian Resurfacing of Road Agency (P) Ltd. [Asian Resurfacing of Road Agency (P) Ltd. v. CBI , (2018) 16 SCC 299 : (2020) 1 SCC (Cri) 686]". We must remind the Magistrates all over the country that in our pyramidical structure under the Constitution of India, the Supreme Court is at the apex, and the High Courts, though not subordinate administratively, are certainly subordinate judicially. This kind of orders fly in the face of para 36 of our judgment.

(emphasis supplied)

3. We expect that the Magistrates all over the country will follow our order in letter and spirit. Whatever stay has been granted by any court including the High Court automatically expires within a period of six months, and unless extension is granted for good reason, as per our judgment, within the next six months, the trial court is, on the expiry of the first period of six months, to set a date for the trial and go ahead with the same.

(emphasis supplied)

4. With this observation, the order dated 4-12-2019 is set aside with a direction to the learned Additional Chief Judicial Magistrate, Pune to set down the case for hearing immediately."

28. Similarly the need to comply the said directions was restated in Asian Resurfacing of Road Agency Private Limited Vs. Central Bureau of Investigation8 (hereinafter referred to as the Asian Resurfacing-III).

29. In Misc. Application No. 1577 of 2020 in Criminal Appeals Nos. 1375-1376 of 2013 seeking clarification of in Asian Resurfacing (supra) the following order was passed on 25.04.20229:

We are afraid that the attempt of the applicant to draw inspiration from the above directions as referred to above cannot succeed in view that this Court cannot be understood as having intended to apply the principle to the fact situation which is presented in this case. Accordingly, the miscellaneous application for clarification is disposed of by clarifying that the order of stay granted by the Division Bench in the High Court cannot be treated as having no force. However, we leave it open to the applicant to seek early disposal of the case."

30. The aforesaid order does not have any bearing on the proceedings before this Court inasmuch as the proceedings in the clarification application arose out of a judgment rendered by a Single Judge disposing of a writ petition which was assailed before a Division Bench in letters patent appeal.

31. Lastly it is noteworthy that the Supreme Court in Fazalullah Khan Vs M. Akbar Contractor (D) by Lrs . And others10 clarified that the directions issued in Asian Resurfacing (supra) shall not be applicable to similar proceedings pending before the Supreme Court. The relevant part of the judgment is extracted hereunder:

IIB.Implementation of Asian Resurfacing(supra) : Consequences & Complications

32. The details provided by the Registry of Allahabad High Court, reproduced hereinafter, clearly disclose that strict adherence to the timeline of six months prescribed in paras 34, 36, 37 of Asian Resurfacing of Road Agency Private Limited and Another v. Central Bureau of Investigation11 is practically unfeasible. The report submitted by the Registry in this regard is extracted hereinunder:

Article 227 150

2. Article 226 (Criminal Writs) 207

3. Section 482 Cr.P.C.

4. Criminal Revision 186

5. F.A.F.O. 129

6. Second Appeal 50 There are multiple Benches taking up/hearing aforementioned determinations."

33. Large docket sizes which include fresh and listed cases, the need to give fair hearing and render speaking orders as well as other requirements of fairness in judicial proceedings, limitations of time, infrastructure availability and other relevant factors determine the capacity of the High Court to decide cases in any given time frame. The facts and figures on the relevant parameters presented by the Allahabad High Court Registry and other germane criteria regarding the capacity of the High Court to decide cases in the time frame stipulated in Asian Resurfacing (supra) have been examined by this Bench.

34. The High Court has granted interim orders staying criminal trials or civil suits while exercising powers under different nomenclatures namely Article 226 , Article 227 , Section 482 Cr.P.C. and even under revisional jurisdictions. Upon consideration of the said relevant factors and available figures we conclude that it is practically unfeasible for this Court to decide all civil and criminal cases in which interim orders staying trials/suits have been granted, or to extend the interim orders after returning the findings within the prescribed period of six months and in the manner stipulated in the directions contained in paras 34, 36, 37 of Asian Resurfacing (supra). On many occasions all listed matters are not taken up or heard on merits due to paucity of time before the court. Further, listing of matters is restricted owing to the size of the docket.

35. Consequently interim orders so granted by the High Court are automatically vacated after lapse of six months in most of the said category of cases by operation of directions in Asian Resurfacing (supra). The criminal trials and civil suits and proceedings before tribunals which were stayed by High Court are ipso facto set in motion in compliance of Asian Resurfacing (supra). Interim protection granted by the High Court is thus being withdrawn on a large scale without any fault of the parties which are adversely affected. Thus devoid of protection of the interim orders vast numbers of litigants suffer arrest and imprisonment or face vexatious litigation or are visited by civil consequences.

36. The opposite parties adopt unscrupulous tactics. They fail to enter appearance before the court or do not file counter affidavits. The opposite parties avoid adjudication on merits, and simply wait out the period of six months for the interim orders to be vacated automatically. There is a de-facto termination of proceedings without adjudication of substantive rights by this Court after the stay orders are vacated and the parties suffer the consequences.

37. The compliance of the directions in Asian Resurfacing (supra) by the courts in Uttar Pradesh has spawned multiplicity of litigation and duplication of efforts. The parties whose interim orders have been vacated and face imminent threat of arrest file fresh petitions on the same cause of action.

38. It is also urged that there is a large scale explosion of the dockets on account of increase in the stay extension applications, as well as fresh petitions under Section 482 Cr.P.C., Article 227 petition etc. which is also putting pressure on the time of the court. Besides in many instances, contempt proceedings have been drawn against judicial officers who have disobeyed the stay extension orders passed by this Court on the footing that the said orders are in the teeth of Asian Resurfacing (supra) and Asian Resurfacing II (supra) and Asian Resurfacing III(supra).

39. The learned members of the Bar contended that there are numerous instances of miscarriages of justice in the State by the implementation of the directions in paras 34, 36, 37 of Asian Resurfacing (supra). Few of such cases cited at the Bar are being referenced by way of exemplars.

40. The facts in Application U/s 482 No. 2856 of 2021 ( Smt. Lalita Chauhan and 2 others Vs State of U.P. and another ) are these. The three applicants namely Smt. Lalita Chauhan, Vishakha Chauhan, Yogendra Chauhan had assailed the criminal proceedings registered against them as Criminal Case No. 13789 of 2019 (arising out of Case Crime No. 459 of 2018) under Section 420 I.P.C., by instituting the above mentioned application under Section 482 Cr.P.C. contending that the proceedings were an abuse of the process of law. Finding prima facie substance in such contention an interim order was granted by this Court on 10.02.2021 staying the criminal trial proceedings. The informant did not appear before this Court despite notices, and no counter affidavit was filed by the State Government either. The matter was listed several times. However it could not be taken up for hearing due to paucity of time with the court and large docket size. The applicants also filed a stay extension application. No order could be passed on the stay extension application by this Court for the same reasons. In the meantime the interim order granted by this Court was vacated automatically by operation of the directions in Asian Resurfacing (supra). Trial proceedings commenced. The trial court took out coercive measures by issuing non-bailable warrants leading to the arrest of applicant no. 2. The applicant no. 2 Ms. Vishakha Chauhan was a bright student who had been offered admission in Niagara College, Toronto, Canada. According to Sri Sushil Shukla, learned counsel the imprisonment cast an indelible stigma on her. It is noteworthy that the said application U/s 482 was finally allowed by this Court vide judgment dated 18.10.2022, and the criminal proceedings against the applicants including Ms. Vishakha Chauhan were quashed.

41. Another instance cited at the bar arose out of a civil suit registered as S.C.C. Suit No. 20 of 2005. The judgment and decree dated 31.10.2013 rendered by the learned trial court in the SCC Suit No. 20 of 2005 and the judgment of the revising court handed down in SCC Revision No. 11 of 2014 on 10.10.2019 were assailed in Matters Under Article 227 No. 134 of 2020 ( Late Mohammad Yunus Qureshi (Deceased) and 8 others Vs Mohammad Yunus Qureshi ) by the applicant before this Court. An interim order was passed by this Court directing stay of the judgments and decrees dated 31.10.2013 and 10.10.2019 passed by the trial and revisional courts respectively.

42. The matter could not be taken up for hearing on many occasions due to paucity of time and large docket size. The interim order was vacated in view of Asian Resurfacing (supra) for no fault of the applicant. The court below commenced execution proceedings after recording that the same is in compliance of the directions of the Supreme Court in Asian Resurfacing (supra).

43. In the aforesaid case, the judgment debtor was dispossessed on orders of the learned court below despite the interim order granted by this Court. Subsequently contempt proceedings were registered against the judicial officer by registering Civil Contempt Application No. 5178 of 2022 (Late Mohammad Yunus Qureshi and 8 others Vs Lovely Jaiswal, Civil Judge (Senior Division) First, Hapur and another) for violating the orders passed by this Court.

44. It has been contended that the judgment of this Court in Dharam Vir Sood Vs Savitri Devi and others12, has distinguished the directions in Asian Resurfacing (supra) and held that the same are not applicable to execution proceedings. However, the trial courts are disregarding the judgment of this Court in Dharam Vir Sood (supra) in view of the directions of the Supreme Court in Asian Resurfacing-II and III.

45. Trial courts have also declined to comply with stay extension orders passed by the High Court on the footing that they are not consistent with Asian Resurfacing (supra). Consequently contempt proceedings have also been instituted against the judicial officers. One such instance is Contempt Application No. 6688 of 2019 ( Satpal Singh and 2 others Vs Piyush Verma, Civil Judge (J.D .) and another). Relevant parts of the order of this Court dated 14.12.2018 are extracted below:

(emphasis supplied)

46. However, the High Court cannot remedy the situation prevailing in the trial courts in view of the directions in Asian Resurfacing (supra) which were also emphatically reiterated in Asian Resurfacing-II & III(supra). Though it needs to be clarified unequivocally that this Court is complying with the directions in paras 34, 36, 37 in Asian Resurfacing (supra) in letter and spirit. Pursuant to the said directions of the Supreme Court, the Registry of Allahabad High Court vide circular dated 26.04.2018 has directed all trial courts to follow the said judgment of the Supreme Court scrupulously.

47. Implementation of the directions in paras 34, 36, and 37 of Asian Resurfacing (supra) has raised several complications. It is not an exaggeration to say that the Allahabad High Court faces a challenge of epic scale. The status of the High Court as a Constitutional Court founded to achieve the preambled resolve of securing justice to all citizens and to uphold the laws and liberties is being called in question on a daily basis. The superintending jurisdiction of the High Court over the trial courts and tribunals is being undermined regularly. The administration of justice in the State has been severely impaired. This is the unvarnished truth of the matter. We say with responsibility and not in rhetoric that the Allahabad High Court faces a constitutional crisis.

48. The problem of arrears is among the most critical challenges being faced not only by Allahabad High Court but the judiciary in the country. This Court is conscious of the pressing need to decide cases expeditiously. To this end, the Court has bent all its energies and has spared no efforts. The problem of arrears is also being examined and addressed by this Court on the administrative side by a committee of seven Judges constituted exclusively for this task. However in view of both the magnitude and complexity of the problem no easy solutions are in sight. Unremitting endeavours, constant institutional thought and concerted action of all stakeholders would ultimately pave the way for a solution.

III. Fixation of time limits by courts to conclude criminal/judicial proceedings: Whether Asian Resurfacing (supra) runs contrary to the law laid down in A. R. Antulay (supra) and P. Ramachandra Rao (supra)?

49. After acknowledging the mandate for speedy trials emanating both from constitutional guarantees and provisions of Code of Criminal Procedure the Supreme Court in A. R. Antulay (supra) reflected upon various complex and inter related causes for delays in trials:

50. Thereafter the Supreme Court in A. R. Antulay (supra) clearly set its face against the fixing of outer time limits for trial of offences as a solution for such delays. A. R. Antulay (supra) cautioned against frivolous litigation, but also made a categorical pronouncement that proceedings taken out by either party to vindicate their rights and interests, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay by holding thus:

(emphasis supplied) (10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial."

(emphasis supplied)

51. It is equally noteworthy that despite the aforesaid holdings in A. R. Antulay (supra), directions were issued by the Supreme Court in subsequent cases prescribing limitation for concluding trials and other criminal proceedings.

52. In Common Cause Vs Union of India-I13, Common Cause Vs Union of India-II14, Raj Deo Sharma Vs State of Bihar-I15, Raj Deo Sharma Vs State of Bihar-II16, strict time limits to conclude trials and other criminal proceedings were prescribed by the Supreme Court.

53. One such case depicts the anomalies which arose from the aforesaid directions and was quoted in P. Ramachandra Rao (supra):

(emphasis supplied)

54. Complications resulting from the aforesaid directions were squarely brought to the notice of the Supreme Court. When the said appeals came up for hearing the Supreme Court found that apart from the merits, questions in the said appeals which would have relevance in many more to follow.

55. In this view of the matter a Bench of three Judges of the Supreme Court in P. Ramachandra Rao Vs State of Karnataka17 , passed the following order on 19.09.2000:

56. The Constitution Bench so constituted heard the appeals. During the hearing an issue clearly arose that the directions made in Common Cause I & II and Raj Deo Sharma I & II ran counter to the Constitution Bench in A. R. Antulay (supra). In the opinion of the Constitution Bench the appeals were liable to be heard by a Bench of seven Hon'ble Judges. The relevant part of the order is extracted below:

(emphasis supplied)

57. The seven Judges Constitution Bench in P. Ramachandra Rao (supra) began its consideration in the backdrop of various landmark judgments including Hussainara Khatoon (I) Vs Home Secretary State of Bihar18 , Maneka Gandhi Vs Union of India19 & A. R. Antulay (supra):

Many accused persons tormented by unduly lengthy trial or criminal proceedings, in any forum whatsoever were enabled, by Hussainara Khatoon (I) [(1980) 1 SCC 81 : 1980 SCC (Cri) 23] statement of law, in successfully maintaining petitions for quashing of charges, criminal proceedings and/or conviction, on making out a case of violation of Article 21 of the Constitution. Right to speedy trial and fair procedure has passed through several milestones on the path of constitutional jurisprudence. In Maneka Gandhi [(1978) 1 SCC 248] this Court held that the several fundamental rights guaranteed by Part III required to be read as components of one integral whole and not as separate channels. The reasonableness of law and procedure, to withstand the test of Articles 21 , 19 and 14 , must be right and just and fair and not arbitrary, fanciful or oppressive, meaning thereby that speedy trial must be reasonably expeditious trial as an integral and essential part of the fundamental right of life and liberty under Article 21. Several cases marking the trend and development of law applying Maneka Gandhi [(1978) 1 SCC 248] and Hussainara Khatoon (I) [(1980) 1 SCC 81 : 1980 SCC (Cri) 23] principles to myriad situations came up for the consideration of this Court by a Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak [(1992) 1 SCC 225 : 1992 SCC (Cri) 93] (A.R. Antulay for short). The proponents of right to speedy trial strongly urged before this Court for taking one step forward in the direction and prescribing time-limits beyond which no criminal proceeding should be allowed to go on, advocating that unless this was done, Maneka Gandhi [(1978) 1 SCC 248] and Hussainara Khatoon (I) [(1980) 1 SCC 81 : 1980 SCC (Cri) 23] exposition of Article 21 would remain a mere illusion and a platitude. Invoking of the constitutional jurisdiction of this Court so as to judicially forge two termini and lay down periods of limitation applicable like a mathematical formula, beyond which a trial or criminal proceeding shall not proceed, was resisted by the opponents submitting that the right to speedy trial was an amorphous one, something less than other fundamental rights guaranteed by the Constitution. The submissions made by proponents included that the right to speedy trial flowing from Article 21 to be meaningful, enforceable and effective ought to be accompanied by an outer limit beyond which continuance of the proceedings will be violative of Article 21. It was submitted that Section 468 of the Code of Criminal Procedure applied only to minor offences but the court should extend the same principle to major offences as well. It was also urged that a period of 10 years calculated from the date of registration of crime should be placed as an outer limit wherein shall be counted the time taken by the investigation."

58. P. Ramachandra Rao (supra) after considering the impact of the time lines to conclude trials laid down in Common Cause (I) (II) (supra) and Raj Deo Sharma (I) (II) (supra) noticed the dissenting judgment of M.B. Shah, J. at length which was rendered in Raj Deo Sharma-I (supra):

59. The concept of "judicial legislation" was discussed in P. Ramachandra Rao (supra) in the context of cases where the courts prescribe various periods of limitation by stating:

Highlighting the difficulties which the courts are likely to encounter if embarking in the fields of legislation or administration, the learned author advises "the Supreme Court could have well left the decision-making to the other branches of government after directing their attention to the problems rather than itself entering the remedial field".

60. The seven Judges Constitution Bench of the Supreme Court in P. Ramachandra Rao (supra) was conscious of the menace of delays in our legal system, but acknowledged the "greater problems" caused by judicial directives creating bars of limitation as a solution to the said problem by holding as follows:

61. Before issuing directions the Supreme Court in P. Ramachandra Rao (supra) reiterated the principle of law of precedents which contemplates that a Bench of lesser strength is bound by the view expressed by a Bench of larger strength and that the bar of limitation enacted in Common Cause (I) & (II) (supra) and Raj Deo Sharma (I) & II (supra) cannot be sustained after noticing that A.R. Antulay (supra) had declined the plea to lay down time limits beyond which a criminal proceeding or trial could not proceed:

(emphasis supplied)

62. Finally the Supreme Court in P. Ramachandra Rao (supra) overruled the directions in Common Cause Vs Union of India-I, Common Cause Vs Union of India-II, Raj Deo Sharma Vs State of Bihar-I & Raj Deo Sharma Vs State of Bihar-II which prescribed the limitation for conclusion of trials and categorically held that it was not judicially permissible to prescribe periods of limitation or an outer time limit for conclusion of all criminal proceedings or trials. In conclusion after reaffirming A.R. Antulay (supra), and P. Ramachandra Rao (supra) laid down the red lines in law as follows:

(emphasis supplied) (5) The criminal courts should exercise their available powers, such as those under Sections 309 , 311 and 258 of the Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial Judge can prove to be a better protector of such right than any guidelines. In appropriate cases, jurisdiction of the High Court under Section 482 CrPC and Articles 226 and 227 of the Constitution can be invoked seeking appropriate relief or suitable directions.

(6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary -- quantitatively and qualitatively -- by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act.

We answer the questions posed in the orders of reference dated 19-9-2000 and 26-4-2001 in the abovesaid terms."

63. P. Ramachandra Rao (supra) after holding that the bars of limitation created by "judicial legislation" ran counter to the doctrine of binding precedents, did not extend the said restrictions on powers under Article 141 , 142 , 32 to other subject matters like PILs and social action litigations:

(emphasis supplied)

64. At this stage it would be apposite to reflect on observations made in P. Ramachandra Rao (supra) regarding the persisting problems of delays in judicial system. The Supreme Court declined to take a simplistic view of the problem and instead embarked on a global consideration of the issue:

65. The judgments of the Supreme Court in A. R. Antulay (supra) and P. Ramachandra Rao (supra) explicitly propound the law that judicial directions or "judicial legislation" by the Supreme Court cannot prescribe an outer time limit for conclusion of "all criminal proceedings" or 'trials' which clearly includes criminal proceedings and interim applications pending therein before the High Courts under various jurisdictions (i.e. Article 226 , Article 227 , Section 482 Cr.P.C., Section 397 Cr.P.C.).

66. The "encroaching nature20" of plenary powers was checked by the Supreme Court when it forbade exercise of powers under Article 142 to create judicial legislation in the said fields.

67. The directions made by the two Judge Bench of Supreme Court in Imtiyaz Ahmad Vs State of U.P.21 also related to delays in judicial proceedings. The Supreme Court in Imtiyaz Ahmad (supra) issued directions to Registrars General/Registrars of all the High Courts in the country to furnish data as regards pending cases in which criminal proceedings had been stayed at various stages. Upon consideration of the aforesaid data the Supreme Court in Imtiyaz Ahmad (supra) examined the remit of the Law Commission to suggest solutions to tackle problems of arrears in courts. The following directions were given to the High Court in Imtiyaz Ahmad (supra) for maintenance of the rule of law and better administration of justice:

68. Imtiyaz Ahmad (supra) while iterating that the constitutional scheme did not give power of superintendence to the Supreme Court over the High Court as the High Court has over District Courts stated:

69. A detailed analysis of submissions of the learned counsels on the impact of the directions made in Asian Resurfacing (supra) which run counters to A.R. Antulay (supra) and P. Ramachandra Rao (supra) shall be made in the subsequent part of the judgement in light of the interpretations of Articles 141 and 142 of the Constitution of India.

IV. Interim Orders : Grant, Alteration & Vacation

70. Interim orders are granted by courts in aid of final relief. Interim orders are passed by Courts to protect fundamental liberties, secure the nature of the disputed property, to prevent the situation from being altered irremediably, and like ends. The importance of grant, alteration or vacation of interim orders is an important part of legal proceedings is self evident and needs little elaboration. Interim orders are granted altered and vacated in exercise of inherent powers vested in the Court or powers endowed by statutes. Interim orders have a direct bearing on the substantive rights of a party and efficacy of the legal remedy.

71. The Supreme Court in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal22 affirmed the exercise of inherent jurisdiction of High Courts constituted under Charters to issue an injunction by holding:

72. Interim orders are sourced to inherent powers vested in superior courts. The Supreme Court in Girish Kumar Suneja Vs CBI23 after referencing cases in point held that the High Court has an inherent power to grant stay of proceedings:

(emphasis supplied)

73. The Supreme Court in Income Tax Officer, Cannanore v. M.K. Mohammed Kunhi24 opined that when a legislature vests jurisdiction upon the tribunal to decide the case, it impliedly grants the power of stay:

74. In In re, Powers, Privileges and Immunities of State Legislatures25 the Supreme Court propounded that if the Court under Article 226 of the Constitution of India had jurisdiction to deal with matter, it is a given that the Court also possessed the power to grant interim relief:

(emphasis supplied)

75. While examining the scope of grant of interim orders and the power to alter or vacate the same, the Supreme Court in Empire Industries Ltd. v. Union of India26 expounded thus:

76. At this juncture we may also refer to Article 226(3) of the Constitution of India:

77. The constitutional provision was interpreted by various High Courts. There was a cleavage of judicial opinions on this issue. One line of authorities in point held that the provision was mandatory and the interim order was deemed to be vacated upon expiry of the period of 14 days after the application for stay vacation was made and if the same was not decided. This line of opinions included a Division Bench judgment of this Court in R.C. Chaudhary Vs Vice Chancellor, Dr. Bhim Rao Ambedkar University, Agra27 .

78. The other view was best depicted in the judgment rendered by a learned Single Judge of the Madras High Court in Dr. T. Gnanasambanthan vs. The Board of Governors28 . Upon consideration of the divergent judicial authorities V. Ramasubramanian, J. (as His Lordship then was) held that automatic vacation of stay order would cause prejudice to a party which was the beneficiary of the interim order and whose conduct could not be faulted. More often than not the stay orders were getting vacated on account of failure of the Courts to take up and decide the stay vacation application on merits. On this footing Article 226(3) of the Constitution of India insofar as it envisaged automatic vacation of the stay order was held to be directory:

(emphasis supplied)

69. Therefore, it is clear that if the condition imposed by the provision of law to do a certain thing within a time frame is upon an institution and the consequences of that institution not complying with the condition is to fall upon someone else who have no control over the institution which is to perform the duty, then the provision of law cannot be construed as mandatory, but only directory.

(emphasis supplied)

70. It is true that if a statutory provision contains a prescription and also stipulates the consequences of non compliance with the condition, it would normally be taken to be mandatory. But, the direction as well as the consequences of non compliance with the direction should both fall upon the same person, if such an interpretation is to be given.

(emphasis supplied)

71. In other words, the statutory provision should contain a direction to a party to the proceeding. It should also prescribe the consequences that would fall upon the party, on whom, the obligation to comply with the condition is imposed by the provision. Take for instance, the provisions of Order XXXIX Rules 3 and 3-A. If a person, in whose favour an interim order of injunction is granted ex parte, fails to comply with the obligation cast under Sub-Rule (a) of Rule 3 of Order XXXIX, the interim injunction granted can be vacated on the ground of failure to comply with the obligation. But, where a direction to do something is against one party, the consequences of that party not complying with the direction, cannot be made to fall upon another party. Article 226(3) imposes an obligation upon the High Courts to dispose of the application for vacating the stay within two weeks. The failure of the High Court to comply with this Constitutional mandate, cannot result in an adverse consequence upon the party. If an obligation is cast upon one party and the consequences of failure to fulfill the obligation are to be suffered by another party, the provision prescribing such an obligation and consequence, cannot be treated as mandatory, but can be treated as directory.

(emphasis supplied)

72. As a matter of fact, the Division Bench of the Allahabad High Court appears to have realised this problem in the decision in R.C. Chaudhary. That is why in paragraph 22 of the report, the Division Bench of the Allahabad High Court held that if a vacate stay application is filed in a leisurely manner, such a party will not be entitled to avail the benefit of Clause (3) of Article 226.

73. In other words, the Division Bench of the Allahabad High Court has created an exception to the rule enunciated under Article 226(3). But, it must be pointed out that if a provision is mandatory, it is not permissible for a Court to carve out an exception not inbuilt in the statutory provision itself. Interpreting a statutory provision to be mandatory and at the same time, carving out an exception not found in the language of the provision, go contrary to each other. Therefore, the proper interpretation to be given to Clause (3) of Article 226 is to say that it is directory and not mandatory, so that no party is allowed to take advantage of the failure of the Court to dispose of an application for vacation of stay within 14 days.

74. As a matter of fact, the Division Bench of the Allahabad High Court took note of only one serious consequence namely that of a party approaching the Court with a vacate stay application in a leisurely manner and the Division Bench took such a situation out of the purview of Article 226(3). But, any number of such situations, which will prove to be disastrous, can be thought of. Take for instance a case, where an application for vacating the stay is taken up for hearing within two weeks of its presentation and the Court reserves orders. If orders were not pronounced on or before the expiry of the 14th day from the date of filing of the vacate stay application, could it be said that the party, who obtained an interim stay, should still suffer, despite ensuring that the application is heard within two weeks. It is not within the control of any party to have his application or the opposite party's application listed for hearing. Even if a party succeeds in getting the application listed within two weeks, it is not in his control to ensure that the application is heard before the expiry of two weeks. Even if a party succeeds in making the Court hear the application for vacation of the interim order within two weeks, it is not in his control (especially these days) to ensure that it is disposed of within two weeks from the date of filing of the vacate stay application.

75. Therefore, an interpretation that would put a party, who is not at fault, to disastrous consequences, for the failure of an institution or for the happening of something that is beyond his control, is wholly unjustified. If a statutory provision imposes an obligation upon one party and makes the opposite party suffer for the consequences of non fulfillment of the obligation cast therein, such a provision cannot be said to be mandatory. Unfortunately, none of the High Courts, whose decisions are relied upon by the respondents, has taken note of this basic difference between the person, on whom, an obligation is cast and the person, on whom, the consequences are made to fall under Article 226(3). Hence, with great respect, I am unable to agree with the views expressed by the other High Courts."

79. We find the reasoning assigned in Dr. T. Gnanasambanthan (supra) to be impeccable and the judgment expounds the correct law. We are in respectful agreement with the law laid down in Dr. T. Gnanasambanthan (supra), in preference to the Division Bench judgment of this Court in R.C. Chaudhary (supra).

80. Similarly, Section 254(2- A) of the Income Tax Act, 1961 restricted the life of an interim order to a period fixed in the provision and contemplated automatic vacation of the stay order after the lapse of said period in the event the appeal was not disposed of. The provision is extracted hereunder:

(emphasis supplied)

81. The said provision was assailed before the Bombay High Court in Narang Overseas (P) Ltd. Vs Income Tax Appellate Tribunal.29 wherein the Bombay High Court noticed the importance of the vested right of an appeal and also stated the implication of Article 14 on automatic vacation of stay orders for no fault of the assessee:

(emphasis supplied)

82. Finally the Bombay High Court in Narang Overseas (supra) held:

83. Close on the heels of the judgment of the Bombay High Court Section 254(2- A) of the Income Tax Act, 1961 came to be amended and read as follows:

(emphasis supplied)

84. After its amendment the provision was assailed before Gujarat High Court in DCIT Vs Vodafone Essar (Gujarat) Ltd. and another30. The Gujarat High Court upon interpretation of the provision protected the powers of the tribunal to grant extension of stay beyond the period of 365 days from the date of initial stay by holding as under:

85. The Delhi High Court in Pepsi Foods (P) Ltd. v. CIT31 ultimately struck down the part of Section 254(2- A) of the Income Tax Act, 1961 (as amended by the Finance Act of 2008) on the footing that it offended Article 14 of the Constitution of India. After referencing the history of the provisions and relying on the judgment rendered in Mardia Chemicals Ltd. Vs Union of India32 and the judgment of a Division Bench of the Punjab and Haryana High Court in PML Industries Ltd. Vs CCE33 the Court propounded the law as under :

86. Lastly, the said provision was tested for its validity before the Bench of three Hon'ble Judges of the Supreme Court in Deputy Commissioner of Income Tax and another Vs Pepsi Foods Ltd. (now Pepsico India Holdings Private Limited)34 when the said judgments of various High Courts were carried in appeal to the Supreme Court. Affirming the holdings of the High Courts and finding that the provision violates Article 14 the Supreme Court in Pepsico Foods Ltd. (supra) laid down the law in the following terms:

(emphasis supplied)

23. In fact, in a recent judgment of this Court in Essar Steel (India) Ltd. (CoC) v. Satish Kumar Gupta [Essar Steel (India) Ltd. (CoC) v. Satish Kumar Gupta, (2020) 8 SCC 531 : (2021) 2 SCC (Civ) 443] , the word "mandatorily" in the 2nd proviso inserted through an amendment made to Section 12(3) of the Insolvency and Bankruptcy Code, 2016 was struck down. This Court held : (SCC pp. 626-28, paras 124-27) "124. Given the fact that timely resolution of stressed assets is a key factor in the successful working of the Code, the only real argument against the amendment is that the time taken in legal proceedings cannot ever be put against the parties before NCLT and Nclat based upon a Latin maxim which subserves the cause of justice, namely, actus curiae neminem gravabit.

125. In Atma Ram Mittal v. Ishwar Singh Punia [Atma Ram Mittal v. Ishwar Singh Punia, (1988) 4 SCC 284] , this Court applied the maxim to time taken in legal proceedings under the Haryana Urban (Control of Rent and Eviction) Act, 1973 , holding : (SCC pp. 288-89, para 8) '8. It is well settled that no man should suffer because of the fault of the court or delay in the procedure. Broom has stated the maxim actus curiae neminem gravabit -- an act of court shall prejudice no man. Therefore, having regard to the time normally consumed for adjudication, the ten years' exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally. It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within ten years and even then within that time it may not be disposed of. That will make the ten years' holiday from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purpose of legislation would thus be defeated. Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else.'

127. Both these judgments in Atma Ram Mittal [Atma Ram Mittal v. Ishwar Singh Punia , ( 1988) 4 SCC 284] and Sarah Mathew [Sarah Mathew v. Institute of Cardio Vascular Diseases , (2014) 2 SCC 62 : (2014) 1 SCC (Cri) 721] have been followed in Neeraj Kumar Sainy v. State of U.P. [Neeraj Kumar Sainy v. State of U.P., (2017) 14 SCC 136 : 8 SCEC 454] , SCC paras 29 and 32. Given the fact that the time taken in legal proceedings cannot possibly harm a litigant if the Tribunal itself cannot take up the litigant's case within the requisite period for no fault of the litigant, a provision which mandatorily requires the CIRP to end by a certain date -- without any exception thereto -- may well be an excessive interference with a litigant's fundamental right to non-arbitrary treatment under Article 14 and an excessive, arbitrary and therefore unreasonable restriction on a litigant's fundamental right to carry on business under Article 19(1)(g) of the Constitution of India. This being the case, we would ordinarily have struck down the provision in its entirety. However, that would then throw the baby out with the bath water, inasmuch as the time taken in legal proceedings is certainly an important factor which causes delay, and which has made previous statutory experiments fail as we have seen from Madras Petrochem [Madras Petrochem Ltd. v. BIFR , (2016) 4 SCC 1 : (2016) 2 SCC (Civ) 478] . Thus, while leaving the provision otherwise intact, we strike down the word "mandatorily" as being manifestly arbitrary under Article 14 of the Constitution of India and as being an excessive and unreasonable restriction on the litigant's right to carry on business under Article 19(1)(g) of the Constitution. The effect of this declaration is that ordinarily the time taken in relation to the corporate resolution process of the corporate debtor must be completed within the outer limit of 330 days from the insolvency commencement date, including extensions and the time taken in legal proceedings. However, on the facts of a given case, if it can be shown to the adjudicating authority and/or the Appellate Tribunal under the Code that only a short period is left for completion of the insolvency resolution process beyond 330 days, and that it would be in the interest of all stakeholders that the corporate debtor be put back on its feet instead of being sent into liquidation and that the time taken in legal proceedings is largely due to factors owing to which the fault cannot be ascribed to the litigants before the adjudicating authority and/or the Appellate Tribunal, the delay or a large part thereof being attributable to the tardy process of the adjudicating authority and/or the Appellate Tribunal itself, it may be open in such cases for the adjudicating authority and/or the Appellate Tribunal to extend time beyond 330 days. Likewise, even under the newly added proviso to Section 12 , if by reason of all the aforesaid factors the grace period of 90 days from the date of commencement of the amending Act of 2019 is exceeded, there again a discretion can be exercised by the adjudicating authority and/or the Appellate Tribunal to further extend time keeping the aforesaid parameters in mind. It is only in such exceptional cases that time can be extended, the general rule being that 330 days is the outer limit within which resolution of the stressed assets of the corporate debtor must take place beyond which the corporate debtor is to be driven into liquidation."

27. We have already seen how unequals have been treated equally so far as assessees who are responsible for delaying appellate proceedings and those who are not so responsible, resulting in a violation of Article 14 of the Constitution of India. Also, the expression "permissible" policy of taxation would refer to a policy that is constitutionally permissible. If the policy is itself arbitrary and discriminatory, such policy will have to be struck down, as has been found in para 20 above.

(emphasis supplied)

30. The law laid down by the impugned judgment of the Delhi High Court in Pepsi Foods (P) Ltd. [Pepsi Foods (P) Ltd. v. CIT , 2015 SCC OnLine Del 9543 : (2015) 376 ITR 87] is correct. Resultantly, the judgments [ CIT v. Parnod Ricard (India) (P) Ltd. , 2017 SCC OnLine Del 12851] , [CIT v. Anil Girishbhai Darji, 2016 SCC OnLine Guj 10059] , [CIT v. Maruti Suzuki (India) Ltd., 2016 SCC OnLine Del 6680] , [CIT v. Pepsi Foods (P) Ltd. , 2016 SCC OnLine Del 6682] , [CIT v. Pepsi Foods (P) Ltd. , 2016 SCC OnLine Del 6681] , [CIT v. Jindal Steel & Power Ltd., 2017 SCC OnLine P&H 5411] , [CIT v. BMW (India) (P) Ltd., 2017 SCC OnLine P&H 5414] , [CIT v. Towers Watson (India) (P) Ltd., 2017 SCC OnLine P&H 5413] , [CIT v. Pepsi Foods (P) Ltd., 2017 SCC OnLine Del 12849] , [CIT v. Maruti Suzuki (India) Ltd. , 2017 SCC OnLine Del 12852] , [CIT v. Vertex Customer Services (P) Ltd. , 2017 SCC OnLine Del 12850] , [CIT v. Towers Watson (India) (P) Ltd., 2017 SCC OnLine P&H 5410] , [CIT v. Swarovski (India) (P) Ltd., 2017 SCC OnLine Del 12854] , [CIT v. Religare Capital Markets Ltd., 2017 SCC OnLine Del 12848] , [CIT v. Jindal Steel & Power Ltd., 2017 SCC OnLine P&H 5412] , [CIT v. Motherson Sumi Systems Ltd., 2017 SCC OnLine Del 12853] , [CIT v. Maruti Suzuki (India) Ltd. , 2018 SCC OnLine Del 13370] of the various High Courts which follow the aforesaid declaration of law are also correct. Consequently, the third proviso to Section 254 (2- A) of the Income Tax Act will now be read without the word "even" and the words "is not" after the words "delay in disposing of the appeal". Any order of stay shall stand vacated after the expiry of the period or periods mentioned in the Section only if the delay in disposing of the appeal is attributable to the assessee. The appeals of the Revenue are, therefore, dismissed."

87. An examination of the submissions of learned counsels of the application of the law laid down in Pepsico Foods Ltd. (supra) to the current controversy and substantial questions as to the interpretation of the Constitution arising therefrom will be made in the latter part of the narrative.

V. High Court : Pre-Constitution Phase to the Constitution : Articles 215 , 226 & 227

88. The High Courts were the first superior courts in the country, and together with the Privy Council and the trial court constituted the judicial system in British India. At the time of their creation the High Courts were vested with the attributes of courts of record and the powers necessary for administration of justice by the Indian High Courts Act read with Letters Patent. The autonomous exercise of these powers by the High Courts in colonial India developed sturdy traditions of independence which have always endured.

89. The High Courts attained the stature of primacy in large measure because their relationship with the Privy Council flourished with an understanding of the common purpose of administration of justice and recognition of limits of judicial power. Together the superior courts in colonial India had laid the foundations of civil and criminal law, and conventions of refined judicial dialogue on which independent India could build the temples of justice.

90. The legitimacy acquired by the High Courts in colonial India is best attested by this episode. After independence upon entering into the office of Chief Justice of Bombay High Court, Justice M C Chagla received messages "to maintain high traditions of impartiality and independence in the administration of justice that the British had left behind." Others hoped that His Lordship would "prove a worthy successor of Chief Justices like Sir Charles Sargent and Sir Lawrence Jenkins35". Justice M.C. Chagla was the first Indian to hold the high office. Barring some aberrational instances36 this tells the story of other pre independence High Courts as well (including Allahabad High Court).

91. Referencing these aspects of the history of the High Courts will be fruitful as a new order may loom in the distance.

92. The Constitution retained the High Courts as superior courts of record, but also exalted their status to Constitutional Courts. Further the framers of the Constitution not only protected the existing inherent powers of the High Court, but enlarged the plenary jurisdictions of the High Court.

93. Under Article 215 of the Constitution of India, the High Courts are the courts of record with all powers of such a court including the power to punish for contempt of itself. Well established attributes of courts of record were restated by the Supreme Court while interpreting Article 215 of the Constitution of India in High Court of Judicature at Allahabad through its Registrar Vs. Raj Kishore Yadav and others37 as follows:

94. The pre-existing inherent powers of High Courts came to be preserved under Article 225 of the Constitution of India. The extraordinary jurisdiction was vested in the High Courts under Article 226 , and superintending jurisdiction over trial courts and tribunals was endowed in the High Court under Article 227 of the Constitution of India.

95. Tracing the history of the High Courts in the country and also adverting to the vast scope of writ jurisdiction vested by the Constitution of India under Article 226 in all High Courts to meet the peculiar and complicated requirements of the country, the Supreme Court in Prabodh Verma v. State of U.P.38 , also compared the scope of Article 226 and Article 32 of the Constitution of India and went on to hold:

96. The Constitution Bench of the Supreme Court in T.C. Basappa v. T. Nagappa39 after noticing wide powers of the Supreme Court and High Courts to issue orders, writs or directions including the writs of different types, declined to import the procedural technicalities of English Law of writs by holding:

97. Powers of superintendence of the High Court under Article 227 of the Constitution of India over trial courts as well as the tribunals were construed to be both judicial and administrative by the Supreme Court in Waryam Singh v. Amarnath40 :

98. The judgment of Waryam Singh (supra) was followed by Seven Judges Bench in Hari Vishnu Kamath v. Syed Ahmad Ishaque and others41:

99. The scope of inherent powers of the High Court under Section 482 Cr.P.C. will be discussed later.

100. Repertoire of plenary powers under Articles 226 and 227 of the Constitution of India or Section 482 Cr.P.C. are equal to the high purposes they subserve. The High Courts have exercised these powers to act ex debito justitiae, uphold the law, protect fundamental rights of citizens, thwart abuse of the process of court at the threshold, prevent miscarriage of justice and interpret the Constitution. Briefly put, for administration of justice.

101. The constitutional status of the High Court preserves its autonomy. The plenary powers under inherent and extraordinary jurisdictions protect the independence of the High Court. The capacity of the High Court to administer justice flowing from these powers undergirds its position as the sentinel on the qui vive and keeps the abiding faith of the citizenry.

102. Powers of the High Court whether vested under Articles 226 and 227 of the Constitution of India or inherent powers under Section 482 Cr.P.C. together comprise the defining elements of the High Court. Infact the existence of inherent powers under Section 482 Cr.P.C. and the endowment of extraordinary jurisdictions under Articles 226 and 227 of the Constitution of India and exercise of these powers and jurisdictions are the pivots on which legitimacy of the High Court rests. The Supreme Court has zealously protected these powers of the High Court, and entrenched them in the body of constitutional law as enduring virtues of our constitutional scheme.

103. Curtailment of these powers will cause disarray in the administration of justice. Bereft of these powers the constitutional status of the High Court will be rendered illusory.

104. Salience of the High Court as a Constitutional Court and its autonomy are a given in the constitutional text, but they cannot be taken for granted in constitutional law. There are various factors which can dilute the autonomy of the High Courts and denude their capacity for administration of justice. Some facets and consequences of dilution of autonomy of the High Courts over the years were discussed by this Court in Hasae @ Hasana Wae Vs. State of U.P. and another42.

105. In Hasae @ Hasana Wae (supra), this Court had the occasion to consider some features of the raison detre of the High Court as a Constitutional Court:

VB. INHERENT POWERS U/S 482 Cr.P.C.

106. After tracing the origins of inherent powers under Section 482 Cr.P.C. to the inception of High Courts, the Supreme Court in Ratilal Bhanji Mithani v. Asstt. Collector of Custom43 , expounded the purpose of the said powers:

The Section enacted that the jurisdiction of the existing High Courts and the powers of the judges thereof in relation to the administration of justice "shall be" the same as immediately before the commencement of Part III of the Act . The statute confirmed and revested in the High Court all its existing powers and jurisdiction including its inherent powers. Then came the Constitution. Article 225 of the Constitution provides:

The proviso to the article is not material and need not be read. The Article enacts that the jurisdiction of the existing High Courts and the powers of the judges thereof in relation to administration of justice "shall be" the same as immediately before the commencement of the Constitution. The Constitution confirmed and re-vested in the High Court all its existing powers and jurisdiction including its inherent powers, and its power to make rules. When the Constitution or any enacted law has embraced and confirmed the inherent powers and jurisdiction of the High Court which previously existed, that power and jurisdiction has the sanction of an enacted "law" within the meaning of Article 21 as explained in A.K. Gopalan case. The inherent powers of the High Court preserved by Section 561-A of the Code of Criminal Procedure are thus vested in it by "law" within the meaning of Article 21. The procedure for invoking the inherent powers is regulated by rules framed by the High Court. The power to make such rules is conferred on the High Court by the Constitution. The rules previously in force were continued in force by Article 372 of the Constitution. The order of the High Court cancelling the bail and depriving the appellant of his personal liberty is according to procedure established by law and is not violative of Article 21."

(emphasis supplied)

107. Some instances of exercise of inherent powers by the High Court for quashing criminal cases as illustrated by the Supreme Court in R. P. Kapur v. State of Punjab44 are as under:

108. The Supreme Court examined the concept of doctrine of abuse of the process of court and remedy of refusal to allow the trial by relying on judgments of English Courts as well as Courts in India in Chandran Ratnaswami v. K.C. Palanisamy45 , by holding:

In his separate pronouncement, Lord Delvin in the same case observed that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial.

35. In Hui Chi-ming v. R. [(1992) 1 AC 34 : (1991) 3 WLR 495 : (1991) 3 All ER 897 (PC)] , the Privy Council defined the word "abuse of process" as something so unfair and wrong with the prosecution that the court should not allow a prosecutor to proceed with what is, in all other respects, a perfectly supportable case.

36. In the leading case of R. v. Horseferry Road Magistrates' Court, ex p Bennett [(1994) 1 AC 42 : (1993) 3 WLR 90 : (1993) 3 All ER 138 (HL)] , on the application of abuse of process, the court confirms that an abuse of process justifying the stay of prosecution could arise in the following circumstances:

37. In R. v. Derby Crown Court, ex p Brooks [(1984) 80 Cr App R 164 (DC)] , Lord Chief Justice Ormrod stated:

38. Neill, L.J. in R. v. Beckford (Anthony ) [(1996) 1 Cr App R 94 : 1995 RTR 251 (CA)] , observed that:

What is unfair and wrong will be for the court to determine on the individual facts of each case."

109. Chandran Ratnaswami (supra) thereafter cited various other authorities with approval including State of Haryana Vs. Bhajan Lal46 ; Zandu Pharmaceutical Works Ltd. vs. Mohd. Sharaful Haque47 , Inder Mohan Goswami Vs. State of Uttranchal48 and G. Sagar Suri v. State of U.P.49

110. The purpose of vesting inherent powers in the High Court from their inception to act ex debito justitiae was reiterated by the Supreme Court in Minu Kumari v. State of Bihar50 , while determining the ambit of Section 482 Cr.P.C.:

(emphasis supplied)

111. After examining the provisions of the statute, the Supreme Court in Hamida v. Rashid Alias Rasheed51 , noticed that the statute did not limit the inherent powers of the High Court. Further the procedural Code, howsoever exhaustive, cannot provide for all contingencies for all times to come. Existence of inherent powers was accordingly justified in Hamida (supra) on the following footing:

(emphasis supplied)

112. The scope of the inherent powers of the High Court under Section 482 Cr.P.C., and the rationale for confiding such wide powers in the High Court was explained by the Supreme Court in Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque52 :

113. While describing the plenitude of the powers under Section 482 Cr.P.C., the need to observe caution in exercise of such powers and the importance of jealously preserving the said powers was underscored by the Supreme Court after citing authorities of our courts as well as international authorities in point in Gorige Pentaiah v. State of A.P.53 :

(emphasis supplied) Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.

13. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. Director of Public Prosecutions[1964 AC 1254 : (1964) 2 WLR 1145 : (1964) 2 All ER 401 (HL)] Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in Director of Public Prosecutions v. Humphrys [1977 AC 1 : (1976) 2 WLR 857 : (1976) 2 All ER 497 (HL)] stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the Judge has the power to intervene. He further mentioned that the courts' power to prevent such abuse is of great constitutional importance and should be jealously preserved."

(emphasis supplied)

114. The jurisdiction under Section 482 Cr.P.C. was construed as a crowning power to exercise control over the administration of justice within its territorial jurisdiction by the Supreme Court in State of Punjab v. Davinder Pal Singh Bhullar54 :

115. The scope and the powers under Section 482 Cr.P.C. was discussed at length by the Supreme Court in Gian Singh v. State of Punjab55 , wherein need to consider the facts and circumstances of a case to determine whether the inherent jurisdiction can be exercised was restated:

(emphasis supplied)

116. The scope of powers under Section 482 Cr.P.C. was interpreted in light of necessity of inherent powers in a court for administration of justice in State of Karnataka v. M. Devendrappa56 :

117. Citing the higher purpose of ex debito justitiae the Supreme Court in Sushil Suri v. Central Bureau of Investigation57 , declined to lay down any inflexible rule which would restrict the exercise of inherent jurisdiction:

(emphasis supplied)

118. Minu Kumari (supra) also advised caution while invoking section 482 Cr.P.C. but refrained from laying down any hard and fast rule for exercise of extraordinary jurisdiction:

(emphasis supplied)

119. The law set its face against a narrow and pedantic approach while exercising inherent jurisdiction and declining the relief on technical grounds in State v. M. Subrahmanyam58 :

120. Similarly the Supreme Court in Janata Dal v. H.S. Chowdhary59 held:

(emphasis supplied)

121. The importance of rendering reasoned judgments in application under Section 482 Cr.P.C. was emphasised by the Supreme Court in Shree Mahavir Carbon Ltd. v. Om Prakash Jalan60 :

12. It was finally stated: (Hindustan Times Ltd. case [ Hindustan Times Ltd. v. Union of India , (1998) 2 SCC 242 : 1998 SCC (L&S) 481] , SCC p. 248, para 8) "8. ... In our view, the satisfaction which a reasoned judgment gives to the losing party or his lawyer is the test of a good judgment. Disposal of cases is no doubt important but quality of the judgment is equally, if not more, important. There is no point in shifting the burden to the higher court either to support the judgment by reasons or to consider the evidence or law for the first time to see if the judgment needs a reversal."

(emphasis supplied) In that case, the order of dismissal of the writ petition by the High Court was affirmed by us but the task fell on the Supreme Court, to inform the appellant why it had lost the case in the High Court.

13. In the present case, we have avoided to do this exercise and have not gone into the merits of the case to find out whether the conclusion of the High Court is correct or not, as the counsel for both the parties have agreed for remand of the matter.

14 [Ed.: Para 14 corrected vide Official Corrigendum No. F.3/Ed.B.J./23/2014 dated 23-4-2014.] . It is nowhere suggested by us that the judgment should be too lengthy or prolix and disproportionate to the issue involved. However, it is to be borne in mind that the principal objective in giving judgment is to make an effective, practical and workable decision. The court resolves conflict by determining the merits of conflicting cases, and by choosing between notions of justice, convenience, public policy, morality, analogy, and takes into account the opinions of other courts or writers (precedents). Since the court is to come to a workable decision, its reasoning and conclusion must be practical, suit the facts as found and provide an effective, workable remedy to the winner.

15. We are of the opinion that while recording the decision with clarity, the Court is also supposed to record sufficient reasons in taking a particular decision or arriving at a particular conclusion. The reasons should be such that they demonstrate that the decision has been arrived at on an objective consideration.

16. When we talk of giving "reasons" in support of a judgment, what is meant by "reasons"? In the context of legal decision-making, the focus is on what makes something a legal valid reason. Thus, "reason would mean a justifying reason, or more simply a justification for a decision is a consideration, in non-arbitrary ways in favour of making or accepting that decision. If there is no justification in support of a decision, such a decision is without any reason or justifying reason.

17. We are not entering into a jurisprudential debate on the appropriate theory of legal reasoning. It is not even a discourse on how to write judgments. Our intention is to simply demonstrate the importance of legal reasoning in support of a particular decision. What we have highlighted is that instant is a case or arriving at a conclusion, in complete absence of reasons, what to talk of adequate or good reasons that justify that conclusion.

18. In the given case, it was required by the High Court to take note of the arguments of the complainant on the basis of which the complainant insisted that ingredients of the particular offences alleged are prime facie established justifying the cognizance of the complaint and the arguments of the respondents herein on the basis of which the respondents made an endeavour to demonstrate that it was a pure civil dispute with no elements of criminality attached. Thereafter, the conclusion should have been backed by reasons as to why the arguments of the complainant are meritless and what is the rationale basis for accepting the case of the accused persons. We hope that this aspect would be kept in mind by the High Court while deciding the case afresh."

122. The requirement to conform the principles of natural justice by giving adversary parties an opportunity to file objections was iterated in Engineering Export Promotion Council v. Usha Anand61 .

123. The extraordinary powers conferred under Article 226 of the Constitution of India and the inherent jurisdiction under Section 482 Cr.P.C. were put on a similar footing since the two were created for the same elevated purpose i.e. ex debito justitiae but the Supreme Court did not lay down any cast iron rule for exercise of such powers in Varala Bharath Kumar v. State of Telangana62 by holding:

(emphasis supplied)

124. Similarly, the powers vested by virtue of Articles 226 and 227 of the Constitution of India and those Section 482 Cr.P.C. were construed as analogous powers which were vested with the sole purpose to achieve justice and not to frustrate it in State of Maharashtra v. Arun Gulab Gawali63 by holding:

[Also See: State of W.B. v. Swapan Kumar Guha (1982) 1 SCC 561; Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749; G. Sagar Suri v. State of U.P. (2000) 2 SCC 636 and Ajay Mitra v. State of M.P. [(2003) 3 SCC 11].

125. The salutary purpose of inherent powers of the High Court under Section 482 Cr.P.C. and extraordinary jurisdiction under Article 226 of the Constitution of India was outlined by the Supreme Court in Kapil Agarwal v. Sanjay Sharma64 to equate both two jurisdictions by holding:

126. Abuse of the process of court and other extraordinary situations would create right conditions for invoking the exercise of inherent and revisional jurisdictions and that the limitations created by the courts in exercise of the same was nothing more than self restraint as held by the Supreme Court in Raj Kapoor v. State65 by establishing the contours of law as under:

127. Raj Kapoor (supra) was approved in Prabhu Chawla v. State of Rajasthan66 .

128. The Supreme Court provided some categories of cases by way of illustration where extraordinary powers under Article 226 of the Constitution of India or inherent power under Section 482 Cr.P.C. could be exercised by the High Court in State of Haryana v. Bhajan Lal67 by expounding the law as under:

109. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

(emphasis supplied)

129. A more categorical pronouncement acknowledging the overlap in the extraordinary jurisdictions under Article 226 and 227 of the Constitution of India and inherent powers under Section 482 Cr.P.C. was made by the Supreme Court in Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others68. In Pepsi Foods (supra) the nomenclature of the petition was held not relevant, as the said powers are devised to advance justice and not to frustrate it:

(emphasis supplied)

130. Advancement of justice and prevention of abuse of the process of court were outlined as the existential purposes of courts in State of Orissa v. Saroj Kumar Sahoo69 and use of powers under Section 482 Cr.P.C. were set forth as under:

(emphasis supplied)

131. Saroj Kumar Sahoo (supra) was followed by the Supreme Court in Mahendra K.C. v. State of Karnataka70 , to hold that the High Court in exercise of powers under Section 482 Cr.P.C. can issue orders to prevent abuse of legal process or otherwise secure the ends of justice. [Also see: Parbatbhai Aahir v. State of Gujarat , (2017) 9 SCC 641; R. Kalyani v. Janak C. Mehta , (2009) 1 SCC 516; Pratibha v. Rameshwari Devi , (2007) 12 SCC 369; and Dinesh Dutt Joshi v. State of Rajasthan , (2001) 8 SCC 570].

132. The Supreme Court in Inder Mohan Goswami v. State of Uttaranchal71 , advocated invocation of inherent powers to advance justice and prevent injustice whenever abuse of the process leading to injustice is brought to the notice of the court:

24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute."

(emphasis supplied)

133. Criminal proceedings arising out of certain offences were terminated in Gian Singh v. State of Punjab72 after identifying certain categories of cases and the fact that the parties had arrived at a compromise by holding:

(emphasis supplied)

134. Noticing the tendency of unscrupulous litigants to abuse the process of court and use the criminal justice system as a weapon of harassment, the Supreme Court in Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd.73 emphasised the need to employ the inherent powers under Section 482 Cr.P.C. as a tool of justice by holding:

135. The need to exercise the powers under Section 482 Cr.P.C. to prevent the judicial process from being used as an instrument of harassment in the hands of frustrated litigants was held to be not only desirable but necessary by the Supreme Court in S.W. Palanitkar v. State of Bihar74 :

136. In Krishna Lal Chawla v. State of U.P.75 the Supreme Court reiterated the fundamental rights of the individual to be free from frivolous and repeated criminal prosecution forced upon him by the might of the State or by vexatious complaints. Consequences of frivolous criminal litigation, the powers and duties of the courts in such situations was underscored thus :

While the Court's ruling pertained to civil proceedings, these observations ring true for the criminal justice machinery as well. We note, with regret, that 7 years hence, and there has still been no reduction in such plight. A falsely accused person not only suffers monetary damages but is exposed to disrepute and stigma from society. While running from pillar to post to find a lawyer to represent his case and arranging finances to defend himself before the court of law, he loses a part of himself."

137. The Supreme Court in Krishna Lal Chawla (supra) invoked Article 142 of the Constitution of India to quash frivolous criminal proceedings or those instituted with oblique or vengeful or malafide motives and also noticed earlier decisions on use of Section 482 Cr.P.C. by the High Courts for the same cause:

138. The need to check frivolous criminal complaints and to nip such litigation in the bud was emphasized by the Supreme Court in Deepak Gaba and others Vs. State of Uttar Pradesh and another76 by holding:

139. The Supreme Court in R. Nagender Yadav v. State of Telangana77 laid down that the purpose of inherent jurisdiction was to prevent abuse of the process of court and otherwise to secure the ends of justice:

140. Converting civil cases into the criminal proceedings was construed to be an abuse of the process of court in Rajib Ranjan v. R. Vijaykumar78 .

141. In B.S. Joshi v. State of Haryana, (2003) 4 SCC 675 ; Manoj Sharma v. State, (2008) 16 SCC 1; Nikhil Merchant v. CBI, (2008) 9 SCC 677; Shiji v. Radhika, (2011) 10 SCC 705, it was held that the High Court may quash proceedings exercising powers under Section 482 Cr.P.C. and the same are not limited by Section 320 of the Cr.P.C.

142. The Supreme Court in State of Karnataka v. L. Muniswamy79 discussed the salutatory public purpose of inherent powers to appreciate the width and contours of that salient jurisdiction:

(emphasis supplied)

143. There is something so right and obvious about the inherent powers of superior courts that they are traced by ancient authorities as those plenary powers which were vested when the superior courts came into existence. Inherent powers exist because the superior courts are there.

144. Cases in point also advert to the fact that Section 482 Cr.P.C. did not infact confer any power but only recognised that such powers inhered in superior courts.

145. Article 225 saved the aforesaid power under Section 482 Cr.P.C. which inhered in the High Courts prior to the Constitution.

146. The nature and ambit of these powers has been settled by long line of consistent cases in point. The powers are exercised ex debito justitiae, and to prevent miscarriage of justice for which alone the courts exist. The power is also used to thwart abuse of process of court at the very inception.

147. Inherent powers are plenary in scope. By their very nature inherent powers elude specific definitions and are incapable of being cast into rigid formulae. Courts have never attempted to limit or to catalogue such powers, but simultaneously advocated caution and self restraint in its exercise. Cases in point have left it to the Courts to decide the manner of use of these powers in the facts and circumstances of a case. The grant of interim orders to serve the ends of justice has also been traced to inherent powers.

148. Inherent powers under Section 482 Cr.P.C. and the jurisdictions of the Court under Articles 226 and 227 of the Constitution of India may be distinct in some ways but also have many commonalities of purpose and overlap in usage. In many instances, the same relief can be sought in either of the jurisdictions. Institution of separate proceedings under these jurisdictions is only a rule of self restraint and convenience in orderly judicial procedure.

149. Nomenclature of the jurisdiction be it an application under Section 482 Cr.P.C or an application under Articles 226 and 227 may not matter if the powers are being used to fulfill the crowning purpose of acting ex debito justitiae and to prevent abuse of process of court.

150. The preceding discussion highlights that the plenary powers under inherent jurisdiction ( Section 482 Cr.P.C.) and extraordinary jurisdictions (under Article 226 and Article 227 of the Constitution of India) provide the High Courts with the capacity of administration of justice, while the exercise of these jurisdictions prove the quality of administration of justice.

151. More importantly the narrative also provides an insight into the consequences of curtailment of powers under Article 226 , Article 227 of the Constitution of India and Section 482 Cr.P.C. which the legislature has not restricted and the Constitutional Courts never downsized.

V (C). Basic Structure:

152. The proposition that the jurisdiction conferred on the High court under Articles 226 and 227 of the Constitution of India was part of the basic structure of the Constitution arose squarely for consideration before a Bench of Seven Judges of the Supreme Court in L. Chandra Kumar v. Union of India80 . L. Chandra Kumar (supra) entrenched judicial review under Article 226 of the Constitution of India and the judicial superintendence of High Courts over decisions of Courts and Tribunal under Article 227 of the Constitution of India in the basic structure of the Constitution of India:

153. Following the judgment rendered in L. Chandra Kumar (supra), the Supreme Court in Union of India and Others vs. Parashotam Dass81 affirmed judicial review as part of the basic structure of the Constitution and emphasized the distinction between self-restraint of the High Court under Article 226 and an embargo on the High Court to exercise such jurisdiction:

30. How can courts countenance a scenario where even in the aforesaid position, a party is left remediless? It would neither be legal nor appropriate for this Court to say something to the contrary or restrict the aforesaid observation enunciated in the Constitution Bench judgment in S.N. Mukherjee case. We would loath to carve out any exceptions, including the ones enumerated by the learned Additional Solicitor General extracted aforesaid as irrespective of the nature of the matter, if there is a denial of a fundamental right under Part III of the Constitution or there is a jurisdictional error or error apparent on the face of the record, the High Court can exercise its jurisdiction. There appears to be a misconception that the High Court would re-appreciate the evidence, thereby making it into a second appeal, etc. We believe that the High Courts are quite conscious of the parameters within which the jurisdiction is to be exercised, and those principles, in turn, are also already enunciated by this Court.

32. We have, thus, no hesitation in concluding that the judgment in Major General Shri Kant Sharma case does not lay down the correct law and is in conflict with judgments of the Constitution Benches rendered prior and later to it, including in L. Chandra Kumar case, S.N. Mukherjee case, and Rojer Mathew case making it abundantly clear that there is no per se restriction on the exercise of power under Article 226 of the Constitution by the High Court. However, in respect of matters of self-discipline, the principles already stand enunciated."

154. The submissions of the learned counsels at the Bar are grounded in the holdings of the Supreme Court in L. Chandra Kumar (supra) and Parashotam Dass (supra). Powers to grant, alter or vary interim orders flow from Articles 226 and 227 of the Constitution of India. According to the learned counsels, the directions in Paras 34, 36, 37 of Asian Resurfacing (supra) damage the Basic Structure of the Constitution of India by curtailing the said powers. The magnitude of the impact on the administration of justice by the High Court consequent to the abridgement of its powers by the said directions in Asian Resurfacing (supra), vindicates the Basic Structure doctrine. Since the Basic Structure of the Constitution has to be protected at all costs, the submissions of the learned counsels do give rise to substantial questions as to interpretation of the Constitution.

VI. SUPREME COURT

155. The Supreme Court is the highest court of the land. The Supreme Court has been constituted as a Court of record under Article 129 of the Constitution of India. The Supreme Court exercises appellate jurisdiction over all High Courts. The Supreme Court also possesses original jurisdiction in certain matters. There are other distinctive provisions relating to the Supreme Court contained in Chapter IV of the Constitution of India. However, for the purposes of this controversy, three provisions are of relevance.

156. Under Article 141 of the Constitution of India the law declared by the Supreme Court is binding on all courts. Article 142 of the Constitution of India vests the Supreme Court with plenary powers for doing complete justice in any case or matter pending before it. Article 144 of the Constitution of India requires all civil and judicial authorities to act in aid of the Supreme Court.

VI (A). ARTICLE 141:

157. Article 141 of the Constitution of India is a constitutional recognition of the doctrine of precedents which was followed by courts in pre independence India.

158. The law is settled to the point that it is axiomatic that only the ratio decidendi in a judgement constitutes the binding precedent.

159. The Civil Appeal before the Supreme Court in State of Orissa v. Sudhansu Sekhar Misra and others82 was an outcome of the conflict between the High Court and the Government of Orissa. The High Court effected transfers of judicial officers in light of its reading of the judgment of the Supreme Court in State of Assam v. Ranga Muhammad and others83. The High Court relied on the observations in Ranga Muhammad (supra) that after a judicial officer is posted to the cadre it is for the High Court to effect his transfers and accordingly passed orders transferring judicial officers to posts in the State Government.

160. The Supreme Court in Sudhansu Sekhar Misra (supra) clarified the ratio in Ranga Muhammad (supra) as follows:

161. The principle that only the ratio decidendi of a judgement that is treated as a binding precedent was reflected in Sudhansu Sekhar (supra) wherein after relying on British authorities it was held:

162. The said judgment was also followed by the Supreme Court in H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior, etc. v. Union of India and another84. Madhav Rao Scindia Bahadur (supra) also cautioned:

163. A Full Bench of this Court in Indian Ceramic House, Langra-Ki-Chowki, Agra v. Sales Tax Officer, II Sector, Agra85 when faced with two conflicting decisions of this Court delineated ratio decidendi from obiter dictum and expounded the law of binding precedents as follows:

10. Consequently, where the case is decided in favour of the petitioner on grounds more than one, but on certain points a finding is recorded against him, on the application of the reversal test, the decision on the main question, if apparent from the judgment, would be ratiod decidendi, otherwise all the grounds in support of the decision would be ratio decidendi; but the point on which a finding is given against the petitioner would not be a ratiod decidendi and shall be mere obiter dictum considering that the reversal of the finding on this point would not alter the decision of the case.

11. In Chapter X of Keeton's Elementary Principles of Jurisprudence, Second Edition, "obiter dicta" is described as "statements of law made by a judge in the course of a decision, arising out of the circumstances of the case, but not necessary for the decision." It was further laid down "that the value of such dicta as sources of law naturally varies with the reputation of the judge, and with the closeness of their relation to the matter in issue in the case in which the dicta are delivered."

12. The opinions of other authorities and also the English decisions are reproduced in the three cases of Bombay, Madras and Nagpur High Courts to which we shall make a reference shortly. The purpose shall be served by our giving certain quotations from these cases. In Mohandas Issardas v. A.N. Sattonathan , the point under consideration was whether an obiter dictum of the Supreme Court was as much binding upon the High Courts, as an express decision given by the Supreme Court. However, the allied question what is an obiter dictum which has a binding effect upon a Court was also commented upon. Obiter dictum was regarded as an expression of opinion on a point which was not necessary to the decision of the case. The material observations on this point are as below:--

13. Reference was then made to the definition of 'obiter dictum' to be found in Stroud's Judicial Dictionary, which is based upon the case--'Flower v. Ebbw Vale Steel Iron and Coal Co.' and the following passage at page 154 in the judgment of Mr. Jnstire Talbot in 'Dew v. United British Steamship Co. Ltd.

14. Thereafter the statement of the law in Halsbury, Volume XIX, at page 251 was quoted and it is as below:--

15. In M. Shaikh Dawood v. Collector of Central Excise, Madras7 , reference was made not only to the passage in the judgment of Mr. Justice Talbot, already quoted above, but also to certain passages from Salmond on Jurisprudence, 11th Edition, the material part of which is as below:--

16. In Kanglu Baula Kotwal v. Chief Executive Officer, Janpad Sabha, Durg, reference was made to rule for determining the ratio decidendi of a case as stated by Professor John Chipman Gray at page 261 in the Nature and Sources of the law (2nd Edition 1921) and also to Allen in his Law in the Making and to the following observations of Lord Sterndale M.B. in--"Slack v. Leeds Industrial Co-operative Society Ltd.".

17. The well recognized principle of interpretation accepted by the Courts in England, therefore, is:--

18. A Judgment is authoritative only as to that part of it which is considered to have been necessary to the decision of the case, and not that part which was not necessary to its decision. The first is called 'ratio decidendi'. Which is binding as a precedent. The other called 'obiter dicta' cannot be treated as a binding precedent though the opinion so expressed is entitled to respect. This rule has been followed by the three High Courts mentioned above and we find no reason to depart from this well recognized principle.

19. The learned Standing Counsel invited our attention to two English decisions -- Jacobs v. London County Council and Behrens v. Bertram Mills Circus Ltd. But they apply to only those cases where more than one reason has been given for the decision, and not where it was not necessary to record a finding on a particular point for the proper decision of the case. Where more than one reason has been given for the view expressed in the case, that is, in support of the decision, both shall be ratio decidendi as no one can say with certainty, expect for the judge himself who decided the case, which point was upper most in his mind; but where many questions arise in the case, some are decided in favour of the petitioner and others against him, and, in the end, decision is given in favour of the petitioner, they shall be the points decided in his favour which have a binding precedent, and not the one which was decided against him, for the simple reason, that for the decision of the case it was not necessary to record a finding on the latter category of points. Only those points were material for the decision of the case which entitled him to a favourable judgment and the others which could not entitle him to a favourable judgment need not have been decided.

20. There can never exist any controversy as to the absence of binding effect of observations of a casual nature, or where the remarks have been made in passing on certain questions of law involved in the case. They shall all be casual observations which cannot take the place of a final expression of opinion on those questions. Such observations cannot amount to a precedent, that is, ratio decidendi: they would be obiter dicta which can be disregarded by an other judge, though the observations made by higher Court or even by a Bench of a larger number of Judges must be given due respect and departure therefrom made on good grounds after detailed consideration of the provisions of the law and the rules. Difficulty arises only when observations have been made after detailed consideration on points which were not necessary to the decision of the case. Where there has been no detailed comments on the provisions of the enactment and the rules, formal expression of opinion on points not necessary to the decision of the case, can be placed in the same category as casual observations and they shall be obiter dicta not binding on other Courts, all the more, a Court constituted with the same number of Judges. Even when the points not necessary to the decision of the case are decided after detailed consideration of the provisions of the law, they can be regarded as the considered expression of opinion by the Judges but in other respects would fall in the same category as casual observations not necessary to the decision of the case. We find no reason to depart from the well recognized principles already commented upon above.

21. In Adarsh Bhandar v. Sales Tax Officer, Aligarh , the petitioner furnished a return of his turnover for the quarter ending 30th June, 1956, but denied that any sales tax could legally be recovered from him on the turnover on the ground that the turnover on the goods in which he dealt was not liable to tax. The Sales Tax Officer, however, provisionally assessed the petitioner to a tax of Rs. 75,000/- on an estimated turnover of Rs. 12 lakhs at the rate of one anna per rupee. The Full Bench allowed the Writ Petition on a few grounds, though they also recorded the finding that the Sales Tax Officer had the jurisdiction to provisionally assess the petitioner when proper sales tax had not been deposited before submitting the return or a cheque for the proper amount was not enclosed with the return. This finding would have justified the dismissal of the Writ Petition in case the other points were not favourable to the petitioner. In other words, for the favourable decision of the Writ Petition, it was not necessary to record a finding on the jurisdiction of the Sales Tax Officer to make provisional assessment where proper tax, though the liability was disputed, was not deposited or remitted by cheque with the return. Even if a finding was not recorded on this point, the decision of the case would have been the same.

22. The observations of Mootham, C.J. on this question are contained in Para. 38 of the Report. It shall be found that no detailed comments have been made, all the more, with reference to the provisions of Sec. 7 of the U.P. Sales Tax Act (to be referred hereinafter as the Act). In the earlier part Mootham, C.J. himself mentioned that he was referring briefly to the three submissions made on behalf of the petitioner with regard to the invalidity of the assessment proceedings. This by itself makes it clear that there was no proper and detailed consideration of these points and Mootham, C.J. made certain observations simply because these points had also been argued before the Bench. When the other points raised by the petitioner had appealed to the Bench, the petitioner himself may not have made detailed submissions in the three points on which the validity of the assessment proceedings was being challenged. We are thus of opinion that the finding on the above question contained in Para 38 of the Report of the Full Bench case of Adarsh Bhandar v. Sales Tax Officer, Aligarh1 cannot be placed in the category of a precedent binding on other Benches, all the more, on a Full Bench with a similar strength. It is not a ratio decidendi, but is mere obiter dictum which cannot be used as a precedent in other cases. When this finding cannot be deemed to be a judicial pronouncement having the force of a binding precedent, the matter can be reconsidered by this Full Bench without recourse to a reference to a still larger Bench. This view is in consonance with the observations in Atma Ram v. State of Punjab . Their Lordships of the Supreme Court had advised reference to a larger Bench where a Full Bench of three Judges was inclined to take a view contrary to that of another Full Bench of equal strength so that the subordinate Courts may not be placed under the embarrassment of preferring one view to another, both equally binding upon them. When the expression of opinion by the earlier Full Bench does not have the force of a binding precedent, there shall be only one decision of the Full Bench binding on the subordinate courts and no occasion for embarrassment shall arise. We are thus of the opinion that we are competent to hear and decide the question referred to us even though the earlier Full Bench had made observations contrary to the law as is being enunciated by us."

164. The scope of law declared within the meaning of Article 141 of the Constitution of India arose for consideration before the Supreme Court in Dalbir Singh and others v. State of Punjab86 . The process to isolate the ratio decidendi from the judgment was set out in Dalbir Singh (supra) as under:

For the purposes of the parties themselves and their privies, ingredient (iii) is the material element in the decision for it determines finally their rights and liabilities in relation to the subject-matter of the action. It is the judgment that estops the parties from reopening the dispute. However, for the purpose of the doctrine of precedents, ingredient (ii) is the vital element in the decision. This indeed is the ratio decidendi. [ R.J. Walker & M.G. Walker : The English Legal System. Butterworths, 1972, 3rd Edn., pp. 123-24] It is not everything said by a judge when giving judgment that constitutes a precedent. The only thing in a judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. In the leading case of Qualcast (Wolverhampton) Ltd. v. Haynes [LR 1959 AC 7 43 : (1959) 2 All ER 38] it was laid down that the ratio decidendi may be defined as a statement of law applied to the legal problems raised by the facts as found, upon which the decision is based. The other two elements in the decision are not precedents. The judgment is not binding (except directly on the parties themselves), nor are the findings of facts. This means that even where the direct facts of an earlier case appear to be identical to those of the case before the court, the judge is not bound to draw the same inference as drawn in the earlier case."

(emphasis supplied)

165. The precedential value of the judgement of the Supreme Court rendered in State Bank of India v. Yasangi Venkateswara Rao87 arose for consideration before the Supreme Court in Jayant Verma and others v. Union of India and others88. The issue which arose for consideration in Jayant Verma (supra) was defined thus:

At first blush, it appears that, though cryptic, the said paragraph does contain reasons for upsetting the High Court judgment. But, on a closer look, it becomes clear that there is no reasoning worth the name for so doing. Paragraph 7 is a series of conclusions put together without any clear reasoning in support. This is probably because only the learned Additional Solicitor General for the appellant appeared before the Court and argued the case on behalf of the appellant. The respondent, though probably served, did not appear and consequently was not heard. It will also be noticed that, despite the fact that the judgment of the single Judge referred to a very large number of High Court, Federal Court, Privy Council and Supreme Court judgments, not a single judgment is adverted to in the cryptic paragraph 7 set out hereinabove. Can it be said that this judgment is a declaration of the law under Article 141 of the Constitution, which as a matter of practice we cannot differ from being a bench of coordinate strength?"

166. The discussion on binding precedents was initiated in Jayant Verma (supra) by citing from authorities of repute. Precedent in English Law by Cross and Harris (4th Edn.) was quoted and the dissenting judgement of A.P. Sen, J. in Dalbir Singh v. State of Punjab89 , was also cited with approval :

167. Thereafter, the judgement in Jayant Verma (supra) proceeded to discuss the following authorities rendered by the Supreme Court :

58. Further, in State of M.P. v. Narmada Bachao Andolan , (2011) 7 SCC 639 at 679-680, it was stated:

168. Finally in light of the said discussion the Jayant Verma (supra) expounded the law as under:

(emphasis supplied)

169. The Supreme Court in Arnit Das v. State of Bihar90 cautioned that a decision not accompanied by reasons and not proceeding on a conscious consideration of an issue cannot be a law declared within the meaning of Article 141 of the Constitution of India by holding:

170. Analysis of facts of a case and the process of reasoning were part of the process to ascertain the ratio decidendi of a judgement or the principle of law having binding force in all Courts in India according to the Supreme Court in Krishena Kumar v. Union of India and others91. Krishena Kumar (supra) also clarified if the ratio is not clear the Court is not bound by the judgement:

(emphasis supplied)

20. In other words, the enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th edn., Vol. 26, para 573) "The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi."

(emphasis supplied)

33. Stare decisis et non quieta movere. To adhere to precedent and not to unsettle things which are settled. But it applies to litigated facts and necessarily decided questions. Apart from Article 14 of the Constitution of India, the policy of courts is to stand by precedent and not to disturb settled point. When court has once laid down a principle of law as applicable to certain state of facts, it will adhere to that principle, and apply it to all future cases where facts are substantially the same. A deliberate and solemn decision of court made after argument on question of law fairly arising in the case, and necessary to its determination, is an authority, or binding precedent in the same court, or in other courts of equal or lower rank in subsequent cases where the very point is again in controversy unless there are occasions when departure is rendered necessary to vindicate plain, obvious principles of law and remedy continued injustice. It should be invariably applied and should not ordinarily be departed from where decision is of long standing and rights have been acquired under it, unless considerations of public policy demand it. But in Nakara [(1983) 1 SCC 305 : 1983 SCC (L&S) 145 : (1983) 2 SCR 165] it was never required to be decided that all the retirees formed a class and no further classification was permissible."

(emphasis supplied)

171. In State of Orissa and others v. Md. Illiyas92 , the Supreme Court iterated the well settled position of law that it is only the ratio decidendi which comes within the ambit of the law declared by Supreme Court and is binding precedent by stating the law as follows:

(emphasis supplied)

172. It would be apposite to refer to the following observations of the three-Judge Bench of the Supreme Court in Regional Manager and another v. Pawan Kumar Dubey93 , wherein it was held that even a single fact could make a difference in conclusions drawn in two cases:

(emphasis supplied)

173. While deducing the ratio in a judgement, the Supreme Court in Delhi Airport Metro Express Private Limited v. Delhi Metro Rail Corporation94 held:

(emphasis supplied)

174. The process of deducing the ratio of the binding statement of law made in a judgment arose for consideration before the Supreme Court in Union of India and others v. Dhanwanti Devi and others95. Dhanwanti Devi (supra) after emphasizing the need to examine the established facts of a case and the principle of law on which the issue was decided, the law of precedents was encapsulated as under:

175. The Dhanwanti Devi (supra) was followed in Kotak Mahindra Bank Limited v. A. Balakrishnan and another96 by the Supreme Court.

176. Deriving the ratio of a judgement arose for consideration in Islamic Academy Education and another v. State of Karnataka and others97 wherein the Supreme Court explained the process as follows:

(emphasis supplied)

177. Ratio decidendi of a judgement alone constituted the law declared in a judgment rendered by the Supreme Court and the method to cull out the ratio from a judgement in Natural Resources Allocation, In Re, Special Reference No.1 of 201298 was restated after referencing good authorities in point:

73. It is also important to read a judgment as a whole keeping in mind that it is not an abstract academic discourse with universal applicability, but heavily grounded in the facts and circumstances of the case. Every part of a judgment is intricately linked to others constituting a larger whole and thus, must be read keeping the logical thread intact.

(emphasis supplied)

178. The process of deciphering the ratio of decidendi in a judgement was elaborated in Sanjay Singh and another v. U.P. Public Service Commission, Allahabad and another99 in the following terms :

(emphasis supplied)

179. The need to study the whole judgment in light of facts and circumstances of a case, and to avoid cherry picking select facts was essential while determining the precedential value of a decision as held by the Supreme Court in Commissioner of Income Tax v. Sun Engineering Works (P) Ltd.100 :

(emphasis supplied)

180. The dictum of law that the ratio of a decision must be understood in the facts situation of a case and that a judgment is an authority for what it actually decides and not what logically follows from it was reiterated by the Supreme Court in Ambica Quarry Works and others v. State of Gujarat and others101:

(emphasis supplied)

181. The Supreme Court in Prakash Amichand Shah v. State of Gujarat and others102 cautioned that a judgement is not a statute, and underscored the need to carefully ascertain the true principles laid down by the previous decision and outlined when decisions are liable to be disregarded:

(emphasis supplied)

182. The Supreme Court in Delhi Administration in the NCT of Delhi v. Manohar Lal103 reiterated the need to find out the ratio of a decision and cautioned against following decisions which do not lay down any principle of law:

(emphasis supplied)

183. In Union of India v. Amrit Lal Manchanda and another104, it was observed:

184. The need to ascertain the principle of law in a judgement and caution against unnecessary expansion of the scope and authority of the precedent was restated by the Supreme Court in Divisional Controller, KSRTC v. Mahadeva Shetty105 :

(emphasis supplied)

185. Upon considering the law of binding precedents the Supreme Court in Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs and Pharmaceuticals Ltd.106 held that mere directions issued under Article 142 do not constitute binding precedent under Article 141 of the Constitution of India:

(emphasis supplied)

186. A blind reliance on judgments without considering the fact situation was disapproved in Ashwani Kumar Singh v. U.P. Public Service Commission and others107:

11. In Home Office v. Dorset Yacht Co. [(1970) 2 All ER 294 : 1970 AC 1004 : (1970) 2 WLR 1140 (HL)] Lord Reid said, "Lord Atkin's speech ... is not to be treated as if it were a statutory definition. It will require qualification in new circumstances" (All ER p. 297g-h). Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) [(1971) 1 WLR 1062 : (1971) 2 All ER 1267] observed : (All ER p. 1274d-e) "One must not, of course, construe even a reserved judgment of even Russell, L.J. as if it were an Act of Parliament;" In Herrington v. British Rlys. Board [(1972) 2 WLR 537 : (1972) 1 All ER 749 : 1972 AC 877 (HL)] Lord Morris said : (All ER p. 761c) "There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case."

12. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper."

(emphasis supplied)

187. The ratio decidendi was distinguished from the obiter dicta in Director of Settlement, A.P. and others v. M.R. Apparao and another108 as under:

(emphasis supplied)

188. More recently the Supreme Court adopted the Inversion Test which was propounded by Eugene Wambaugh, a Professor at The Harvard Law School in State of Gujarat and others v. Utility Users' Welfare Association and others109 :

114. In order to test whether a particular proposition of law is to be treated as the ratio decidendi of the case, the proposition is to be inversed i.e. to remove from the text of the judgment as if it did not exist. If the conclusion of the case would still have been the same even without examining the proposition, then it cannot be regarded as the ratio decidendi of the case. This test has been followed to imply that the ratio decidendi is what is absolutely necessary for the decision of the case. "In order that an opinion may have the weight of a precedent", according to John Chipman Grey [ Another distinguished jurist who served as a Professor of Law at Harvard Law School.] , "it must be an opinion, the formation of which, is necessary for the decision of a particular case".

189. The Inversion Test was also applied in Nevada Properties Pvt. Ltd. v. State of Maharashtra and another110:

190. Similarly in Career Institute Educational Society v. Om Shree Thakurji Educational Society111 the Supreme Court followed the " Inversion Test" and Jayant Verma (supra) to hold:

191. Gasket Radiator Pvt. Ltd. v. Employees' State Insurance Corporation and another112 rendered by the Supreme Court highlighted the importance of not construing judgments as statutes held thus:

(emphasis supplied)

192. In Sreenivasa General Traders and others v. State of Andhra Pradesh and others113, the Supreme Court explained the concept of binding precedents and expounded that observations in a judgment which were not necessary for the purpose of the decision are not binding precedents:

(emphasis supplied)

193. The Supreme Court in Sanjeev Coke Manufacturing Company v. M/s Bharat Coking Coal Limited and another114 expressed reservations on the issue of courts answering hypothetical questions where constitutional issues are involved without a proper lis by holding :

(emphasis supplied)

194. In Ashok Kumar Gupta and another v. State of U.P. and others115, the Supreme Court cautioned that constitutional issues not directly arising for decision cannot be decided :

(emphasis supplied)

195. The Supreme Court in Government of India v. Workmen and State Trading Corporation and others116 opined that a decision which does not set out the facts or the reasons for the conclusion given cannot be treated as a binding precedent and held:

(emphasis supplied)

196. While enquiring into the ratio of the judgement the Supreme Court in Dr. Shah Faesal and others v. Union of India and another117 bisected a judgment into two parts :

(emphasis supplied)

197. Dr. Shah Faesal (supra) thereafter elucidated the benefits of the practice of adopting judicial precedents as binding statements of law:

198. In Dr. Rohit Kumar v. Secretary Office of Lieutenant Governor of Delhi and others118, the Supreme Court delineated the distinction between the law laid down by the Supreme Court which was binding on all Courts under Article 141 of the Constitution of India, and the directions made in exercise of powers under Article 142 of the Constitution of India by holding :

199. The rule of per incuriam carves out an exception to the doctrine of binding precedent. Halsbury's Laws of England119 elucidates the rule in this manner:

(emphasis supplied)

200. The Supreme Court in Municipal Corporation of Delhi v. Gurnam Kaur120 held that a judgment which was delivered without arguments and consideration of provisions of the Act was passed sub silentio and did not constitute a binding precedent by holding:

(emphasis supplied)

201. The consequences of failure to consider an earlier binding precedent by a Bench were examined by the Supreme Court in D.J.Malpani v. Commissioner of Central Excise, Nashik121 which quoted Salmond on Jurisprudence122 with approval:

(emphasis supplied)

202. The Constitution Bench in A. R. Antulay v. R.S. Nayak and another123 stipulated that observations reached per incuriam in a judgement are devoid of any precedent value and stated forth:

(emphasis supplied)

203. Similarly the Supreme Court in Punjab Land Development & Reclamation Corpn. Ltd., Chandigarh v. Presiding Officer, Labour Court, Chandigarh and others124 considered the consequences of judgements rendered in ignorance of relevant constitutional provisions or statutory provisions and held that the law laid down has to be interpreted consistently with the subject or context:

(emphasis supplied)

204. Further Dr. Shah Faesal (supra) elaborated the concept of per incuriam when a judgment is rendered in ignorance of a previous decision of the Court of coordinate jurisdiction and categorically propounded that a judgment ceases to be a binding precedent by the operation of the rule of per incuriam :

(emphasis supplied)

29. In this context of the precedential value of a judgment rendered per incuriam, the opinion of Venkatachaliah, J., in the seven-Judge Bench decision of A.R. Antulay v. R.S. Nayak [A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 : 1988 SCC (Cri) 372] assumes great relevance : (SCC p. 716, para 183) "183. But the point is that the circumstance that a decision is reached per incuriam, merely serves to denude the decision of its precedent value. Such a decision would not be binding as a judicial precedent. A coordinate Bench can disagree with it and decline to follow it. A larger Bench can overrule such decision. When a previous decision is so overruled it does not happen -- nor has the overruling Bench any jurisdiction so to do -- that the finality of the operative order, inter partes, in the previous decision is overturned. In this context the word "decision" means only the reason for the previous order and not the operative order in the previous decision, binding inter partes. ... Can such a decision be characterised as one reached per incuriam? Indeed, Ranganath Misra, J. says this on the point : (para 105) "Overruling when made by a larger Bench of an earlier decision of a smaller one is intended to take away the precedent value of the decision without effecting the binding effect of the decision in the particular case. Antulay, therefore, is not entitled to take advantage of the matter being before a larger Bench."

(emphasis supplied)

31. Therefore, the pertinent question before us is regarding the application of the rule of per incuriam. This Court while deciding Pranay Sethi case [ National Insurance Co. Ltd. v. Pranay Sethi , (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] , referred to an earlier decision rendered by a two-Judge Bench in Sundeep Kumar Bafna v. State of Maharashtra [Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623 : (2015) 3 SCC (Cri) 558] , wherein this Court emphasised upon the relevance and the applicability of the aforesaid rule : (Sundeep Kumar Bafna case [ Sundeep Kumar Bafna v. State of Maharashtra , (2014) 16 SCC 623 : (2015) 3 SCC (Cri) 558] , SCC p. 642, para 19) "19. It cannot be overemphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta."

(emphasis supplied)

32. The view that the subsequent decision shall be declared per incuriam only if there exists a conflict in the ratio decidendi of the pertinent judgments was also taken by a five-Judge Bench decision of this Court in Punjab Land Development & Reclamation Corpn. Ltd. v. Labour Court [ Punjab Land Development & Reclamation Corpn. Ltd. v. Labour Court, (1990) 3 SCC 682 : 1991 SCC (L&S) 71] : (SCC pp. 706-07, para 43) "43. As regards the judgments of the Supreme Court allegedly rendered in ignorance of a relevant constitutional provision or other statutory provisions on the subjects covered by them, it is true that the Supreme Court may not be said to "declare the law" on those subjects if the relevant provisions were not really present to its mind. But in this case Sections 25-G and 25-H were not directly attracted and even if they could be said to have been attracted in laying down the major premise, they were to be interpreted consistently with the subject or context. The problem of judgment per incuriam when actually arises, should present no difficulty as this Court can lay down the law afresh, if two or more of its earlier judgments cannot stand together."

(emphasis supplied)

205. The Supreme Court elucidated the concept of binding precedent in Siddharam Satlingappa Mhetre v. State of Maharashtra and others125 and stipulated the limitations imposed on the same by the rule of per incuriam after citing the British authorities and also judgements rendered by the Supreme Court :

129. Lord Godard, C.J. in Huddersfield Police Authority v. Watson (1947) 2 All ER 193 observed that where a case or statute had not been brought to the court's attention and the court gave the decision in ignorance or forgetfulness of the existence of the case or statute, it would be a decision rendered in per incuriam.

130. This court in Government of A.P. and Another v. B. Satyanarayana Rao (dead) by LRs. and Others (2000) 4 SCC 262 observed as under:

131. In a Constitution Bench judgment of this Court in Union of India v. Raghubir Singh (1989) 2 SCC 754, Chief Justice Pathak observed as under:

132. In Thota Sesharathamma and another v. Thota Manikyamma (Dead) by LRs . and others (1991) 4 SCC 312 a two Judge Bench of this Court held that the three Judge Bench decision in the case of Mst. Karmi v. Amru (1972) 4 SCC 86 was per incuriam and observed as under:

133. In R. Thiruvirkolam v. Presiding Officer and Another (1997) 1 SCC 9 a two Judge Bench of this Court observed that the question is whether it was bound to accept the decision rendered in Gujarat Steel Tubes Ltd. v. Mazdoor Sabha (1980) 2 SCC 593, which was not in conformity with the decision of a Constitution Bench in P. H. Kalyani v. Air France (1964) 2 SCR 104. J.S. Verma, J. speaking for the court observed as under:

134. In Bharat Petroleum Corporation Ltd. v. Mumbai Shramik Sangra and others (2001) 4 SCC 448 a Constitution Bench of this Court ruled that a decision of a Constitution Bench of this Court binds a Bench of two learned Judges of this Court and that judicial discipline obliges them to follow it, regardless of their doubts about its correctness.

135. A Constitution Bench of this Court in Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673 has observed that the law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.

137. In Subhash Chandra and Another v. Delhi Subordinate Services Selection Board and Others (2009) 15 SCC 458, this court again reiterated the settled legal position that Benches of lesser strength are bound by the judgments of the Constitution Bench and any Bench of smaller strength taking contrary view is per incuriam. The court in para 110 observed as under:-

138. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of judges of co-equal strength. In the instant case, judgments mentioned in paragraphs 135 and 136 are by two or three judges of this court. These judgments have clearly ignored a Constitution Bench judgment of this court in Sibbia's case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under section 438 of Cr.P.C.. Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam.

139. In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the court doubts the correctness of the judgments by two or three judges, then the proper course would be to request Hon'ble the Chief Justice to refer the matter to a larger Bench of appropriate strength."

206. The Supreme Court adhered to the judicial discipline of subsequent benches of lesser or coequal strength being bound by an earlier pronouncement in Central Board Dawoodi Bohra Community and another v. State of Maharashtra and another126:

207. The need for the High Courts to fully consider the views expressed by the larger Benches of the Supreme Court in preference to those expressed by smaller Benches was expounded in State of Orissa and others v. Titaghur Paper Mills Company Limited and another127:

(emphasis supplied)

208. The view was reiterated in Modern Dental College and Research Centre and others v. State of Madhya Pradesh and others128, as under:

(emphasis supplied)

209. The conflict between the two or more judgments of the Supreme Court was resolved in Pyare Mohan Lal v. State of Jharkhand and others129, by holding:

[Also see: ( i) The State of U.P. v. Ram Chandra Trivedi130 ; ( ii) Smt. Triveniben v. State of Gujarat131 ].

210. The Supreme Court in Bhargavi Constructions and another v. Kothakapu Muthyam Reddy and others132, held that it was bound by its own pronouncements by virtue of being law under Article 141 of the Constitution of India:

(emphasis supplied)

211. In Shanker Raju v. Union of India133 the Supreme Court held:

(emphasis supplied)

212. In Shayara Bano v. Union of India and others134, the Supreme Court of India categorically laid down that it was bound by the judgments rendered by it in terms of Article 141 of the Constitution of India :

(emphasis supplied)

213. The recourse available to the High Court in a situation where two mutually irreconcilable decisions of the Supreme Court are cited at the Bar was highlighted by the Supreme Court in Sundeep Kumar Bafna v. State of Maharashtra135 . Further the diminution of the precedential value of a decision upon the application of the per incuriam rule was embedded in the tenets of discipline demanded by the rule of precedent in Sundeep Kumar Bafna (supra):

(emphasis supplied)

214. The binding effect of law laid down by the Supreme Court cannot be diluted on the ground that full facts were not placed before the Supreme Court as it would be detrimental to the rule of law and constitutional order, as held by the Supreme Court in Palitana Sugar Mills Private Limited and another v. Vilasiniben Ramachandran and others136 :

(emphasis supplied)

215. The Courts are often faced with conflicting judgements on the same point or the judgements which do not consider the earlier decisions of a coordinate Bench. The decision rendered by a coordinate Bench is binding on the subsequent Benches or equal lesser strength. This proposition of law was reiterated in National Insurance Co. Ltd. v. Pranay Sethi137 , wherein it is held:

(emphasis supplied)

216. Dealing squarely with the issue where two conflicting judgements of the Supreme Court were cited before the High Court, the Supreme Court in Union of India v. K.S. Subramanian138 unequivocally held that the proper course for the High Court was to follow the opinion expressed by larger Benches of the Court in preference to those expressed by smaller Benches of the Court by holding:

217. The question which arose for consideration before a Full Bench of this Court in Ganga Saran v. Civil Judge, Hapur, Ghaziabad and others139 was:

218. The Full Bench of this Court embarked on the following line of reasoning to answer the aforesaid question after relying on a Full Bench of Punjab & Haryana High Court:

(emphasis supplied)

11. This decision was followed by the Bombay High Court in the case of Special Land Acquisition Officer v. Municipal Corporation , AIR 1988 Bombay 9. The majority of Judges in the Full Bench held that if there was a conflict between the two decisions of equal benches which cannot possibly reconcile, the courts must follow the judgment which appear to them to state the law accurately and elaborately. We are in respectful agreement with the view expressed by the Full Bench of Punjab & Haryana High Court in the case of M/s Indo Swiss Time Limited v. Umrao , (AIR 1981 Punj & Har 213) (Supra) especially when the Supreme Court while deciding Qamaruddin's case (1990 All WC 308) (Supra) did not notice the U.P. amendment to S. 115 , C.P.C. and earlier decision of the Supreme Court. In the light of the view expressed in this case it is to be examined as to which of the case decided by the Supreme Court lays down the law accurately. As noticed earlier the U.P. Amendment Act No. XXXI of 1978 amended S. 115 of Code of Civil Procedure. By virtue of this amendment, revision u/S. 115 , S.P.C. did not lie to the High Court against the appellate or revisional order passed by the District Court where the valuation of the suit is less than Rs. 20,000/-. This amendment came up for consideration in M/s Jupiter Chit Fund (Pvt) Ltd. v. Dwarka Diesh (AIR 1979 All 218) (FB) (Supra) and it was held that S. 115 , C.P.C. as amended by U.P. Amendment Act mutually exclusive jurisdiction to the High Court and district Court. This full bench decision was affirmed by Supreme Court in its two decisions namely in the cases of Vishesh Kumar v. Shanti Prasad , ( AIR 1980 SC 892) and Vishnu Awatar v. Shiv Autar (AIR 1980 SC 1575) (supra). A perusal of the judgment of the Supreme Court in the case of Qamaruddin's case (1990 All WC 309) (Supra) indicates that it was not brought to the notice of the bench deciding' the case that it was a case from U.P. and that S. 115 , C.P.C. amended by U.P. Amendment Act No. XXXI of 1978 governed the matter. The matter was disposed of as if S. 115 , C.P.C. as originally enacted applied.

12. In such a situation it cannot be held that the case of Qamaruddin (Supra) lays| down the law accurately. Further it also cannot be held that the decision of the Supreme Court in Qamaruddin's case overruled the decision of Full Bench of this Court which as noticed already, has been specifically affirmed in two decisions of the Supreme Court. It would not be reasonable to say that even though Qamaruddin's case does not notice U.P. Amendment Act and the earlier decision of Supreme Court approving the Full Bench decision of this Court, it must be deemed to have dissented or departed from earlier decisions or that it has over-ruled the Full Bench decision of this Court. It goes without saying that even the decision of the Supreme Court must be understood reasonably. It would not be reasonable to say that the Supreme Court would depart or dissent from its earlier decision without even referring to them or without even referring to the relevant provisions of law.

13. For the above reasons it must be held that the decision of Supreme Court in Qamaruddin's case (1990 All WC 308) (Supra) to the extent it holds that revision against an appellate or revisional order passed by the district court is maintainable u/S. 115 , C.P.C. (as amended by U.P. Act 31/78) to the High Court does not state the law accurately or overrule the decision of the Full Bench of this Court in Jupiter Chit Fund (Pvt) Ltd. v. Dwarka Diesh (AIR 1979 All 218) (Supra) particularly when it has specifically been approved by the two earlier decisions of the Supreme Court."

(emphasis supplied)

219. The process of distilling the ratio in a judgment is a deliberative process governed by a long line of legal precedents. It is the duty of all Courts (including trial courts and tribunals) to cull out the ratio of a judgement in light of the cases in point before following it as a binding precedent. The first step in isolating the ratio of a judgment requires a full reading of the judgment. The material facts and the legal issues in the controversy have to be then ascertained from the judgement as a whole. Finally the principle of law on which the decision was rendered on the subject matter under consideration has to be identified. The said statement of law so extracted is the binding precedent in the said judgement. Courts have to observe the caution of not picking up stray facts or observations and apply them mechanically or out of context as binding precedents.

220. The doctrine of precedent is leavened by judicial discipline. Judicial discipline contemplates that the law laid down by a Bench of larger strength will prevail over the legal dictum propounded by Benches of lesser strength.

221. The law of precedents is also limited in its operation by the concept of per incuriam. The judgment is rendered per incuriam when it is passed in ignorance of earlier binding law or failure to consider relevant statutory provisions. A judgment per incuriam does not have any precedential value. Deviating from the ratio of a judgement or following observations not comprised in the ratio amounts to lack of adherence to the law of precedents.

222. Further when faced with conflicting decisions of the Supreme Court the process of law in the High Court will not stand still. Hands of the High Courts are not tied and they shall chart their course of action in light of authorities which hold the field. [See: K.S. Subramanian (supra) & Ganga Saran (supra)].

VI.A(I) Article 141 & Asian Resurfacing (supra) :

223. The submissions of the learned counsel at the Bar are these. The material facts and legal issues under consideration before the Supreme Court in Asian Resurfacing (supra) were with regard to the legal remedies available to a litigant against an order framing a charge under the Prevention of Corruption Act and whether the High Court can grant interim protection to the accused who has been charged under the Prevention of Corruption Act . The issue of pendency of all criminal and civil cases in all High Courts where criminal trials and civil suits had been stayed was not the subject matter of the controversy and did not arise for consideration. The plea is also sought to be advanced on the footing of the law laid down by the Supreme Court in Sanjeev Coke Manufacturing Company (supra) & Islamic Academy Education (supra) that no arguments were raised on this issue, and "battle lines were not properly drawn" and neither was any response called from parties on the said issues. On that count the directions in paras 34, 36, 37 Asian Resurfacing (supra) do not comprise the ratio of the judgement and hence the directions do not have binding effect. Further issues and consequences of not referencing previous judgements of larger Benches in point was also raised. These submissions in the facts of the controversy at hand raise substantial questions as to the interpretation of the Constitution.

224. The application of the concept of judgment rendered per incuriam and also the judicial discipline of precedents which contemplates that a judgment rendered by a Larger Bench strength will be binding over a judgment of a lesser Bench strength shall be considered in view of the submissions at the Bar.

225. After placing the said judgments of the Supreme Court in A. R. Antulay (supra) and P. Ramachandra Rao (supra) the learned counsels made the following submissions.

226. The judgement of the Asian Resurfacing (supra) was passed without consideration of the judgement rendered by the Supreme Court by the Benches of superior strength in A. R. Antulay (supra) and P. Ramachandra Rao (supra). According to the learned counsels directions in paras 34, 36, 37 in Asian Resurfacing (supra) are per incuriam for this reason.

227. The directions issued by the Supreme Court in Paras 34, 36, 37 in Asian Resurfacing (supra) are contrary to the law laid down by the Supreme Court in A. R. Antulay (supra) and P. Ramachandra Rao (supra). Binding law laid down under Article 141 in A. R. Antulay (supra) and P. Ramachandra Rao (supra) proscribes judicial directions creating an outer time limit to conclude criminal proceedings or trials pending before the courts. Imperative directions issued under Article 142 in paras 34, 36, 37 of Asian Resurfacing (supra) prescribe mandatory timelines to conclude criminal and civil proceedings before the High Courts.

228. The contention at the Bar is that the judgments of five Judges Bench in A. R. Antulay (supra) and seven Judges Bench in P. Ramachandra Rao (supra) were binding on the three Judges Bench in Asian Resurfacing (supra).

229. The law laid down by the Supreme Court in A. R. Antulay (supra) and P. Ramachandra Rao (supra) is binding on all Courts including this Court. It is also submitted that this Court has to determine which judgement lays down the binding law and follow the same accordingly. According to the learned counsels in the instant case it is the bounden duty of this Court and all trial courts to follow the judgements rendered by Benches of superior strength in A. R. Antulay (supra) and P. Ramchandra Rao (supra), in preference to the contrary directions in Asian Resurfacing (supra), which was handed down by a Bench of lesser strength.

VI(B) ARTICLE 142

230. The scope of powers of the Supreme court under Article 142 , the interface of Article 142 with Article 194 (3) and the issue of conflict between Article 142 and Article 32 of the Constitution of India were examined by the Court in Prem Chand Garg v. Excise Commissioner140 . Prem Chand Garg (supra) noticed the following submissions made at the Bar:

231. However, the Supreme Court in Prem Chand Garg (supra) categorically rejected the argument that the powers under Article 142(1) can be compared with Article 194(3) of the Constitution which are not subject to the provisions of Part III by holding:

(emphasis supplied)

232. The view taken by the Supreme Court in Prem Chand Garg (supra) as regards the scope of Article 142 of the Constitution of India was fully endorsed in A. R. Antulay (1988) (supra). A. R. Antulay (1988) (supra) after considering the ratio of Prem Chand Garg (supra) held:

(emphasis supplied)

233. Subsequently, however, clarifying the judgments rendered in Prem Chand Garg (supra) and A. R. Antulay (1988) (supra) in regard to the ambit and the limitations of the powers under Article 142(1) of the Constitution, the Supreme Court in Union Carbide Corporation v. Union of India141 ruled:

Any limited interpretation of the expression "cause or matter" having regard to the wide and sweeping powers under Article 136 which Article 142(1) seeks to effectuate, limiting it only to the short compass of the actual dispute before the Court and not to what might necessarily and reasonably be connected with or related to such matter in such a way that their withdrawal to the apex Court would enable the court to do "complete justice", would stultify the very wide constitutional powers. Take, for instance, a case where an interlocutory order in a matrimonial cause pending in the trial court comes up before the apex Court. The parties agree to have the main matter itself either decided on the merits or disposed of by a compromise. If the argument is correct this Court would be powerless to withdraw the main matter and dispose it of finally even if it be on consent of both sides. Take also a similar situation where some criminal proceedings are also pending between the litigating spouses. If all disputes are settled, can the court not call up to itself the connected criminal litigation for a final disposal? If matters are disposed of by consent of the parties, can any one of them later turn around and say that the apex Court's order was a nullity as one without jurisdiction and that the consent does not confer jurisdiction? This is not the way in which jurisdiction with such wide constitutional powers is to be construed. While it is neither possible nor advisable to enumerate exhaustively the multitudinous ways in which such situations may present themselves before the Court where the Court with the aid of the powers under Article 142(1) could bring about a finality to the matters, it is common experience that day in and day out such matters are taken up and decided in this Court. It is true that mere practice, however long, will not legitimize issues of jurisdiction. But the argument, pushed to its logical conclusions, would mean that when an interlocutory appeal comes up before this Court by special leave, even with the consent of the parties, the main matter cannot be finally disposed of by this Court as such a step would imply an impermissible transfer of the main matter. Such technicalities do not belong to the content and interpretation of constitutional powers.

83. It is necessary to set at rest certain misconceptions in the arguments touching the scope of the powers of this Court under Article 142(1) of the Constitution. These issues are matters of serious public importance. The proposition that a provision in any ordinary law irrespective of the importance of the public policy on which it is founded, operates to limit the powers of the apex Court under Article 142(1) is unsound and erroneous. In both Garg [1963 Supp 1 SCR 885, 899-900 : AIR 1963 SC 996] as well as Antulay cases [(1988) 2 SCC 602 : 1988 SCC (Cri) 372] the point was one of violation of constitutional provisions and constitutional rights. The observations as to the effect of inconsistency with statutory provisions were really unnecessary in those cases as the decisions in the ultimate analysis turned on the breach of constitutional rights. We agree with Shri Nariman that the power of the Court under Article 142 insofar as quashing of criminal proceedings are concerned is not exhausted by Section 320 or 321 or 482 CrPC or all of them put together. The power under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142. Such prohibitions or limitations in the statutes might embody and reflect the scheme of a particular law, taking into account the nature and status of the authority or the court on which conferment of powers -- limited in some appropriate way -- is contemplated. The limitations may not necessarily reflect or be based on any fundamental considerations of public policy. Sri Sorabjee, learned Attorney General, referring to Garg case [1963 Supp 1 SCR 885, 899-900 : AIR 1963 SC 996] , said that limitation on the powers under Article 142 arising from "inconsistency with express statutory provisions of substantive law" must really mean and be understood as some express prohibition contained in any substantive statutory law. He suggested that if the expression 'prohibition' is read in place of 'provision' that would perhaps convey the appropriate idea. But we think that such prohibition should also be shown to be based on some underlying fundamental and general issues of public policy and not merely incidental to a particular statutory scheme or pattern. It will again be wholly incorrect to say that powers under Article 142 are subject to such express statutory prohibitions. That would convey the idea that statutory provisions override a constitutional provision. Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of "complete justice" of a cause or matter, the apex Court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly. The proposition does not relate to the powers of the Court under Article 142 , but only to what is or is not 'complete justice' of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise.

84. Learned Attorney General said that Section 320 Criminal Procedure Code is "exhaustive of the circumstances and conditions under which composition can be effected." (See Sankar Rangayya v. Sankar Ramayya [AIR 1916 Mad 483, 485 : 16 Cri LJ 750 : 31 IC 350] ) and that "the courts cannot go beyond a test laid down by the legislature for determining the class of offences that are compoundable and substitute one of their own". Learned Attorney General also referred to the following passage in Biswabahan Das v. Gopen Chandra Hazarika [(1967) 1 SCR 447, 451 : AIR 1967 SC 895 : 1967 Cri LJ 828] :

He said that "if a criminal case is declared to be non-compoundable, then it is against public policy to compound it, and any agreement to that end is wholly void in law." (See Majibar Rahman v. Muktashed Hossein [ILR 40 Cal 113, 117-18 : 16 CWN 854 : 15 IC 259] ); and submitted that court "cannot make that legal which the law condemns". Learned Attorney General stressed that the criminal case was an independent matter and of great public concern and could not be the subject matter of any compromise or settlement. There is some justification to say that statutory prohibition against compounding of certain class of serious offences, in which larger social interests and social security are involved, is based on broader and fundamental considerations of public policy. But all statutory prohibitions need not necessarily partake of this quality. The attack on the power of the apex Court to quash the criminal proceedings under Article 142(1) is ill-conceived. But the justification for its exercise is another matter.

86. But Shri Nariman put it effectively when he said that if the position in relation to the criminal cases was that the Court was invited by the Union of India to permit the termination of the prosecution and the Court consented to it and quashed the criminal cases, it could not be said that there was some prohibition in some law for such powers being exercised under Article 142. The mere fact that the word 'quashing' was used did not matter. Essentially, it was a matter of mere form and procedure and not of substance. The power under Article 142 is exercised with the aid of the principles of Section 321 CrPC which enables withdrawal of prosecutions. We cannot accept the position urged by the learned Attorney General and learned counsel for the petitioners that Court had no power or jurisdiction to make that order. We do not appreciate Union of India which filed the memorandum of February 15, 1989, raising the plea of want of jurisdiction."

234. Both the scope and limits of the plenary powers under Article 142 of the Constitution arose for consideration before a Constitution Bench of the Supreme Court in Supreme Court Bar Association v. Union of India142 and the Supreme Court observed as under:

235. Supreme Court Bar Association (supra) also reconciled the judgments in Union Carbide Corporation (supra), A.R. Antulay (1988) (supra), Prem Chand Garg (supra) in the following manner:

236. Finally the Supreme Court in Supreme Court Bar Association (supra), stipulated following restraints in exercise of powers under Article 142 of the Constitution of India:

237. After noticing that the holdings of the Supreme Court in Union Carbide Corporation (supra), A.R. Antulay (1988) (supra), Prem Chand Garg (supra), Supreme Court Bar Assn. (supra) are not in conflict, the Supreme Court in ONGC v. Gujarat Energy Transmission Corporation Ltd.143 adhered to the regime of restraints created by it while exercising powers under Article 142 of the Constitution of India and declined to condone the delay beyond the statutory limits by holding:

15. From the aforesaid decisions, it is clear as crystal that the Constitution Bench in Supreme Court Bar Assn. [Supreme Court Bar Assn. v. Union of India , (1998) 4 SCC 409] has ruled that there is no conflict of opinion in Antulay case [ A.R. Antulay v. R.S. Nayak , (1988) 2 SCC 602 : 1988 SCC (Cri) 372] or in Union Carbide Corpn. case [ Union Carbide Corpn. v. Union of India , (1991) 4 SCC 584 : 1991 Supp (1) SCR 251] with the principle set down in Prem Chand Garg v. Excise Commr. [Prem Chand Garg v. Excise Commr., AIR 1963 SC 996 : 1963 Supp (1) SCR 885] Be it noted, when there is a statutory command by the legislation as regards limitation and there is the postulate that delay can be condoned for a further period not exceeding sixty days, needless to say, it is based on certain underlined, fundamental, general issues of public policy as has been held in Union Carbide Corpn. case [ Union Carbide Corpn. v. Union of India , (1991) 4 SCC 584 : 1991 Supp (1) SCR 251] . As the pronouncement in Chhattisgarh SEB [Chhattisgarh SEB v. Central Electricity Regulatory Commission, (2010) 5 SCC 23] lays down quite clearly that the policy behind the Act emphasising on the constitution of a special adjudicatory forum, is meant to expeditiously decide the grievances of a person who may be aggrieved by an order of the adjudicatory officer or by an appropriate Commission. The Act is a special legislation within the meaning of Section 29(2) of the Limitation Act and, therefore, the prescription with regard to the limitation has to be the binding effect and the same has to be followed regard being had to its mandatory nature. To put it in a different way, the prescription of limitation in a case of present nature, when the statute commands that this Court may condone the further delay not beyond 60 days, it would come within the ambit and sweep of the provisions and policy of legislation. It is equivalent to Section 3 of the Limitation Act. Therefore, it is uncondonable and it cannot be condoned taking recourse to Article 142 of the Constitution.

16. We had stated earlier that we will be adverting to the passage in Suryachakra Power Corpn. Ltd.[Suryachakra Power Corpn. Ltd. v. Electricity Deptt. , (2016) 16 SCC 152 : (2016) 10 Scale 46] There, the Court had referred to Section 14 of the Limitation Act. It fundamentally relied on M.P. Steel Corpn. [M.P. Steel Corpn. v. CCE , (2015) 7 SCC 58 : (2015) 3 SCC (Civ) 510] wherein the Court after referring to certain authorities, analysed thus : ( M.P. Steel Corpn. case [ M.P. Steel Corpn. v. CCE , (2015) 7 SCC 58 : (2015) 3 SCC (Civ) 510] , SCC p. 91, para 43) "43. ... when a certain period is excluded by applying the principles contained in Section 14 , there is no delay to be attributed to the appellant and the limitation period provided by the statute concerned continues to be the stated period and not more than the stated period. We conclude, therefore, that the principle of Section 14 which is a principle based on advancing the cause of justice would certainly apply to exclude time taken in prosecuting proceedings which are bona fide and with due diligence pursued, which ultimately end without a decision on the merits of the case."

238. After following the ONGC (supra) the Supreme Court in National Spot Exchange Ltd. v. Dunar Foods Ltd. (Resolution Professional )144 held as under:

239. The judgment in ONGC (supra) was followed by the Supreme Court in Assistant Commissioner (CT) v. Glaxo Smith Kline Consumer Health Care Ltd.145 with similar results:

(emphasis supplied)

240. While interpreting the expression "complete justice" in Article 142 , the Supreme Court in Rajeev Suri v. DDA146 did not take a narrow view to doing justice but looked at the positions of the parties and the subject matter as a goal and held:

(emphasis supplied)

241. The restraints devised by the Supreme Court in exercise of powers in determining the scope of jurisdiction under Article 142 of the Constitution of India were restated by the Supreme Court in Anupal Singh v. State of U.P.147 wherein the Summit Court refused to issue orders which were contrary to expressed provisions of law by unequivocally stating:

(emphasis supplied)

242. The impermissibility of issuing directions under Article 142 of the Constitution of India which were contrary to a specific provision of law was again emphasized in Raj Kumar v. State of U.P.148 by stating forth:

(emphasis supplied)

243. The difference between Articles 141 and 142 of the Constitution was considered in Bir Singh v. Mukesh Kumar149 by holding thus:

(emphasis supplied)

244. While observing the distinctions between the law laid down by the Supreme Court under Article 141 and Article 142 which gave precedence to equity over law, the Supreme Court in State v. Kalyan Singh150 reiterated that equity cannot disregard substantive provisions of law and stated the law the under:

(emphasis supplied)

30. According to Shri Venugopal, the Supreme Court's power under Section 406 is circumscribed by transfer taking place only from a criminal court subordinate to one High Court to another criminal court of equal or superior jurisdiction subordinate to another High Court. Clearly Section 406 does not apply to the facts of the present case as the transfer is from one criminal court to another criminal court, both subordinate to the same High Court. This being the case, nothing prevents us from utilising our power under Article 142 to transfer a proceeding from one criminal court to another criminal court under the same High Court as Section 406 does not apply at all. The learned Senior Counsel went on to add that such a power is exercisable only under Section 407 by the High Court and not this Court. Again, the fact that the High Court has been given a certain power of transfer under the Code of Criminal Procedure does not detract from the Supreme Court using a constitutional power under Article 142 to achieve the same end to do complete justice in the matter before it. In the present case, there is no substantive mandatory provision which is infracted by using Article 142. This being the case, both grounds taken by Shri Venugopal are without substance."

245. The Supreme Court in Nidhi Kaim v. State of M.P.151 unequivocally declined to issue directions in exercise of powers under Article 142 of the Constitution of India which were contrary to the law declared under Article 141 of the Constitution of India even in exceptional circumstances in light of the pronouncement of the Constitution Bench in Supreme Court Bar Assn. v. Union of India152 . However, "the window for such thought and consideration" was left open by observing:

(emphasis supplied)

246. Delving into the scope of jurisdiction under Article 142 of the Constitution of India, the Supreme Court in Asha Ranjan v. State of Bihar153 held that the said powers cannot curtail the Fundamental Rights of the citizens:

247. Delineating differences between Articles 141 and 142 of the Constitution of India and keeping the latter outside the purview of the former, the Supreme Court in State of Punjab v. Rafiq Masih154 has held that:

(emphasis supplied)

248. The restriction of not issuing orders in contravention of law under Article 142 was iterated by the Supreme Court in Poonam v. Sumit Tanwar155 :

249. The same view was taken in Manish Goel v. Rohini Goel156 :

[Also see: A.B. Bhaskara Rao v. CBI157 ]

250. Construing the powers under Article 142 of the Constitution of India, the Supreme Court in Laxmidas Morarji v. Behrose Darab Madan158 held that though the power is not restricted by statutory enactments, but the Supreme Court would not pass an order which would supplant substantive law or ignore express statutory provisions:

(emphasis supplied)

251. The Supreme Court in Monica Kumar (Dr.) v. State of U.P.159 interpreted the word "cause" or "matter" to include every kind of proceeding whether civil or criminal, and after noticing that no provision like Section 482 Cr.P.C. conferred powers on the Supreme Court to quash or set aside criminal proceedings pending before a criminal court to prevent abuse of the process of the Court, the same was done by exercising powers under Article 142 of the Constitution of India read with Article 32 and 136 of the Constitution of India:

252. The distinction between a principle of law which amounts to a binding precedent under Article 141 of the Constitution of India and directions issued under Article 142 of the Constitution of India without laying down any principle of law was stated in Indian Drugs & Pharmaceuticals Ltd. v. Workmen160 by holding thus:

253. While exercising the discretionary jurisdiction under Article 142 of the Constitution of India, the Supreme Court in Sandeep Subhash Parate v. State of Maharashtra161 emphasised the need to consider all relevant aspects of the matter including the decisions of the Supreme Court and stated forth:

(emphasis supplied)

254. The Supreme Court in State of Haryana v. Sumitra Devi162 while defining the scope of jurisdiction under Article 142 of the Constitution of India reiterated that no such order could be passed in contravention of statute or statutory rules.

255. Same view was taken in Textile Labour Assn. v. Official Liquidator163 .

256. The Supreme Court in M.S. Ahlawat v. State of Haryana164 recalled orders which were purportedly passed under Article 142 of the Constitution of India without following the procedure prescribed under Section 195 and 340 Cr.P.C. when the issue was raised before it by holding thus:

257. Despite the wide coverage of Article 142 of the Constitution of India the Supreme Court in State of Punjab v. Bakshish Singh165 stated that the Court cannot ignore the substantive rights of a litigant while dealing with a cause pending before it and declined to invoke Article 142 of the Constitution of India:

(emphasis supplied)

258. The Supreme Court in Chandrakant Patil v. State166 restrained frequent use of powers under Article 142 of the Constitution by holding thus:

13. We are aware that powers under Article 142 are not to be exercised frequently but only sparingly. The occurrence described in this case is not the usual type of crimes reaching this Court. When all the four accused were caught red-handed while making nocturnal movements towards some targeted destination, in the densely crowded city with highly lethal and quickly explosive articles, it is a matter of reasonable imagination that, had they not been timely intercepted by the alert and vigilant police force, the consequences would have been disastrous and calamitous. We have no manner of doubt that the sentence of imprisonment of five years for the offence under Section 5 of the TADA in the circumstances of this case is too inadequate and it warrants enhancement."

(emphasis supplied)

259. Construing the powers under Article 142 as a constituent power transcending statutory prohibitions and its relationship with the law declared under Article 32 , 136 , 141 of the Constitution of India, the Supreme Court in Ashok Kumar Gupta v. State of U.P.167 held:

(emphasis supplied)

260. The Supreme Court has given full effect to the wide amplitude of powers under Article 142 of the Constitution of India to do complete justice between the parties as is comprehended in the provision.

261. The very nature of the power is such that it is not amenable to precise definition, and the Supreme Court has not confined it in narrow bounds. However, restrictions have been devised by the Supreme Court for exercise of powers under Article 142 of the Constitution of India.

262. Clearly the powers under Article 142 of the Constitution of India as per the holdings of the Supreme Court are malleable enough to serve justice in the facts of a case, but not sufficiently fluid to create fault lines in the edifice of law.

VI B(II) Article 142 & Asian Resurfacing (supra)

263. The submissions squarely raised before this Court do give rise to substantial questions pertaining to interpretation of the Constitution which in the facts and circumstances of this case are liable to be adjudicated with finality by the Supreme Court.

264. The question is whether peremptory directions issued by the Supreme Court in Asian Resurfacing (supra) under Article 142 will prevail over explicit law expounded by the Supreme Court in A. R. Antulay (supra) and P. Ramachandra Rao (supra) under Article 141? This conflict between the two provisions is a substantial question which relates to the interpretation of the constitution.

265. There is also one corollary. The concept of judicial discipline envisages that the law laid down by a Bench of higher strength is binding on a Bench of lesser strength is part of the body of law of binding precedents relatable to Article 141 of the Constitution of India. The question of constitutional interpretation which may arise is that whether the said dictum is also applicable to Article 142 of the Constitution of India.

266. The question also arises whether the amplitude of Article 142 gives it primacy over other provisions of the Constitution and the law, namely, Articles 141 , 226 , 227 of the Constitution of India and Section 482 Cr.P.C.?

267. There is another facet of the scope of Article 142 which comes in sharp focus in the facts of this case from the submissions raised before this Court by the learned counsels.

268. The substantial questions as to interpretation of the Constitution arising from the holdings of the Supreme Court in Pepsico Foods Ltd. (supra) and its interface with Article 142 will not be discussed.

269. In summation, the holdings in Pepsico Foods Ltd. (supra) show that the constitutional law has set its face against legislative enactments which contemplate the automatic vacation of stay orders upon lapse of a particular period of time even when the litigant cannot be faulted for the delay. The timeless legal maxim "Actus Curiae Neminem Gravabit" i.e. the litigant cannot be prejudiced by an act of the Court, is entrenched in the body of legal precedents unanimously rendered by various Constitutional Courts in the country. Further arbitrary curtailment or restriction by the legislature on powers to extend interim orders will render the substantive rights of the parties before the court/tribunal nugatory, and the remedy for adjudication of such rights will become a nullity.

270. A legislative enactment ( Section 254-A I.T. Act) bearing likeness in form, substance and effect to the directions in Paras 34, 36, 37 of Asian Resurfacing (supra) has been held to be violative of Article 14 and read down by the Supreme Court in Pepsico (supra). The submission at the Bar is that an act which is prohibited by the courts for the legislature cannot be made permissible in "judicial legislation". Further powers under Article 142 cannot be exercised in contravention of Part III of the Constitution of India.

271. Moreover litigants aggrieved by legislative enactments (even Constitutional amendments) have the remedy of judicial review. Absence of remedy against judicial legislation created by directions issued under Article 142 , and immunity of such legislation from judicial review also raises substantial questions as to interpretation of the Constitution.

272. The consequence of concentration of powers in one department of government and the broad separation of powers as applicable in India were stated by Y.V. Chandrachud, J. (as the then Hon'ble Chief Justice of India was) in Indira Nehru Gandhi Vs Raj Narain168 . In this context it would also be apposite to extract the principles of "distinction between judicial and other powers which are vital to the maintenance of Constitution itself" and the adherence to fine checks and balances between three organs without which no constitution can survive as propounded in Indira Nehru Gandhi (supra):

(emphasis supplied)

688. I do not suggest that such an encroaching power will be pursued relentlessly or ruthlessly by our Parliament. But no Constitution can survive without a conscious adherence to its fine checks and balances. Just as courts ought not to enter into problems entwined in the "political thicket". Parliament must also respect the preserve of the courts. The principle of separation of powers is a principle of restraint which "has in it the precept, innate in the prudence of self-preservation (even if history has not repeatedly brought it home), that discretion is the better part of valour" [ Julius Stone : Social Dimensions of Law and Justice, (1966) p. 668] . Courts have, by and large, come to check their valorous propensities. In the name of the Constitution, the Parliament may not also turn its attention from the important task of legislation to deciding court cases for which it lacks the expertise and the apparatus. If it gathers facts, it gathers facts of policy. If it records findings, it does so without a pleading and without framing any issues. And worst of all, if it decides a court case, it decides without hearing the parties and in defiance of the fundamental principle of natural justice."

(emphasis supplied)

273. The Supreme Court in Indira Nehru Gandhi (supra) stood at the vanguard in defence of the prerogative of the courts to exercise judicial functions and negatived the legislative (Parliamentary in this case) attempt to assume judicial powers by holding:

(emphasis supplied)

274. Further recalling the dissenting view of P.N. Bhagwati, J. (as the then Hon'ble Chief Justice of India was) in Minerva Mills Ltd. and others Vs Union of India and others169, would be enlightening:

It is a cardinal principle of our Constitution that no one howsoever highly placed and no authority however lofty can claim to be the sole judge of its power under the Constitution or whether its action is within the confines of such power laid down by the Constitution. The judiciary is the interpreter of the Constitution and to the judiciary is assigned the delicate task to determine what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations. That is the essence of the rule of law, which inter alia requires that "the exercise of powers by the government whether it be the legislature or the executive or any other authority, be conditioned by the Constitution and the law". The power of judicial review is an integral part of our constitutional system and without it, there will be no government of laws and the rule of law would become a teasing illusion and a promise of unreality. I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquestionably, to my mind, part of the basic structure of the Constitution. Of course, when I say this I should not be taken to suggest that effective alternative institutional mechanisms or arrangements for judicial review cannot be made by Parliament. But what I wish to emphasise is that judicial review is a vital principle of our Constitution and it cannot be abrogated without affecting the basic structure of the Constitution. If by a constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by the legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of subversion of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile. So also if a constitutional amendment is made which has the effect of taking away the power of judicial review and providing that no amendment made in the Constitution shall be liable to be questioned on any ground, even if such amendment is violative of the basic structure and, therefore, outside the amendatory power of Parliament, it would be making Parliament sole judge of the constitutional validity of what it has done and that would, in effect and substance, nullify the limitation on the amending power of Parliament and affect the basic structure of the Constitution. The conclusion must therefore inevitably follow that clause (4) of Article 368 is unconstitutional and void as damaging the basic structure of the Constitution."

(emphasis supplied)

275. In wake of preceding observations in Indira Nehru Gandhi (supra) and Minerva Mills (supra), it is evident that "distinction between the judicial and other powers" has to be kept in mind while preserving the salutary system of the structure of power relationship with checks and balances and limits on the power of every authority or instrumentality under the Constitution. According to the learned members of the Bar this caution would apply both to the judiciary and the legislature.

276. The constraints of the legislature to exercise judicial functions are much akin to the limitations of the superior courts to undertake legislative exercises.

277. The expertise of the legislature and their apparatus and procedures are best suited to the most important task of legislation. The inherent difficulties of the legislature to undertake the task of judging have been brought out in Indira Nehru Gandhi (supra).

278. If judging by the legislature is forbidden, what are the restrictions on legislation by the courts?

279. The limitations of the capacity of the judiciary for undertaking legislative exercises cannot be denied. The process of courts is siloed by its very nature, restricts participation as a matter of practice, and adheres to the discipline of pleadings and evidences before the Court as a rule. Legislation requires a much broader outreach, a more open consultative process and a different institutional experience. The intellectual capital created by the process of courts is often inadequate for the complex task of legislation.

280. It is for this reason that from time to time the Supreme Court has created red lines on the exercise of powers under Article 142 , particularly in certain fields of judicial legislation.

281. However, the issue cannot be approached in a pedantic manner, but has to be understood in a nuanced fashion.

282. The Courts cannot neglect consideration of another important facet of this issue. Complexities of modern day governance defy comprehensive cataloguing and watertight compartmentalization of legislative and judicial powers. The fast pace of socio-economic changes and the lightning speed of technological advancement outstrip the capacity of the legislature and at times of the executive to deal with the fruits of advancing technology and the challenges of social change. Consequently at times the legislature and the executive cannot address such issues with the required promptitude.

283. On many occasions the Courts become cognizant of social and legal problems arising from socio-economic and technological developments much before the cause is brought in the consciousness of the legislative process or in the realm of execution action. There are many instances where absence of legislation or executive inaction implicates fundamental rights of citizens. Legislative lag and executive inertia cannot cause a constitutional stasis.

284. In such situations, the superior courts cannot become silent spectators and standby. The process of realization of fundamental rights of the citizenry will never standstill. The courts have to protect the fundamental rights of the citizens at all times, and constitutional guarantees have to be enforced on demand.

285. Fruitful exercise of judicial legislation was evidenced in Vishaka and others Vs State of Rajasthan and others170. This was one cause where the legislative field was vacant and judicial legislation was made to secure the fundamental rights of a vulnerable class of citizens. Subsequently, the legislature enacted the law [The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013] to provide statutory remedies to the aggrieved citizens.

286. This Court too on various occasions is confronted with similar issues. In Saumya Tiwari Vs. State of U.P. and others171 absence of Maternity Leave Regulations was the justification of the University to deny the maternity benefits and maternity support systems to a student who was an expectant mother.

287. This Court in Saumya Tiwari (supra) while relying on the law laid down by the Supreme Court in Rattan Chand Hira Chand v. Askar Nawaz Jung172 , K.S. Puttaswamy v. Union of India173 , Vishaka and others Vs State of Rajasthan and others174 held as under:

66. K.S. Puttaswamy (supra) unequivocally set forth that determining different facets of dignified existence which fall within Article 21 of the Constitution of India, is a function of judicial review:

77. The respondent University has neglected to frame Regulations or create appropriate legal instruments to provide for maternity benefits to expectant mothers and new mothers. The failure of the University to perform its statutory functions has left the students bereft of maternity benefits. This inertia of the University betrays its insensitivity to the plight of pregnant students, undermines the rule of law and subverts the ideal of holistic education. The University cannot justify violation of fundamental rights of the petitioner on the foot of its own omissions.

86. By failing to frame Regulations or appropriate legal instruments for grant of maternity benefits and by declining to grant such benefits to the petitioner, the University has violated the fundamental rights of the petitioner as guaranteed under Articles 14 , 15(3) and 21 of the Constitution of India and as expounded in the law laid down by Constitutional Courts.

88. A writ in the nature of mandamus is issued to the respondent-University to execute the following directions:

VI C. High Court & Supreme Court: Relationship

289. The Constitution has created a hierarchy of appellate courts, and a comity of Constitutional Courts. Under the Constitution, the Supreme Court is the final court of appeal for all citizens of the country. In reality the High Courts are the courts of last resort for a vast majority of litigants. This among other reasons impelled the Constitution makers to vest the status of Constitutional Courts and courts of records in the High Courts and the Supreme Courts. The High Courts and the Supreme Court are thus endowed with congruent powers to serve the overarching common purposes to act ex debito justitiae, uphold fundamental liberties, prevent miscarriage of justice, and interpret the Constitution and the laws. High Courts make access to justice easy and approachable in the first instance to most citizens.

290. The High Courts and the Supreme Court comprise the comity of Constitutional Courts. When judgments of the High Courts are carried in appeal and the Supreme Court hands down the final judgments in the lis, a legal and a constitutional discourse happens between the courts. In this process, the lis arrives at a terminus and the rights of parties are adjudicated with finality.

291. Simultaneously other important transitions happen. The constitutional discourse guides the evolution of constitutional law, and a national consensus of constitutional values emerges. The judicial discourse of this nature cements the unity of the nation. The manner and conduct of the constitutional dialogue amongst the comity of Constitutional Courts is most critical to the process of evolution of law, defining rights of citizens and ultimately dispensing justice.

292. The relationship between the High Court and the Supreme Court has evolved both by long standing judicial conventions and high authorities in point. (Some aspects of this relationship have been discussed in the earlier part of the judgement.) Reference to some authorities will fortify the narrative.

293. Acknowledging the powers of both Constitutional Courts namely the Supreme Court and High Court to issue writs and also noticing that the powers of High Court under Article 226 of the Constitution of India are wider than Article 32 of the Constitution of India, the Supreme Court in Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another175 held:

294. The judicial relationship between the High Court and Supreme Court reflected in the judgements of Constitutional Courts impacts the functioning of the High Courts. Exploring various facets of the relationship of the Supreme Court and the High Court, the former in Tirupati Balaji Developers (P) Ltd. And Others Vs. State of Bihar and Others176 propounded:

27. Cooperation can be achieved and tension avoided between two judicial institutions if only judicial collegiality is learnt, nobility prevails and Holmes' humility rules.

29. While quoting the several authorities and references as hereinabove we should not be misunderstood as calling "the Supreme Court a superior court and the High Court an inferior court"; all that we wish to say is that jurisdictionally, and in the hierarchical system, so far as the exercise of appellate jurisdiction is concerned, undoubtedly, the Supreme Court is a superior forum and the High Court an inferior forum in the sense that the latter is subjected to jurisdiction, called "appellate jurisdiction", of the former.

30. The very existence of appellate jurisdiction obliges the lower jurisdiction to render all of its assistance to the higher jurisdiction to enable the exercise of appellate jurisdiction fully and effectively. The lower forum may be called upon to certify its record of case and proceedings to the superior forum. The superior forum may stand in need of some information which being in the possession or knowledge of the subordinate forum, shall have to be made available only by it. The superior forum may issue a stay order or restraint order or may suspend, expedite or regulate the proceedings in the subordinate forum. During or at the end of exercise of the appellate jurisdiction any direction made by the higher forum shall have to be complied with by the lower forum, otherwise the hierarchy becomes meaningless."

295. The constitutional status of the High Courts is most invaluable. But experience shows that it can be equally fragile. The constitutional status and autonomy of the High Courts will thrive when shepherded with care in discourse between Constitutional Courts and buttressed in constitutional law and honoured in constitutional conventions.

296. The constitutional vision will make a tryst with its destiny when in conventions and practices, in law and in speech the Constitutional Courts follow the discipline of the hierarchy of appeals and foster the collegiality in the comity of courts.

297. The Supreme Court in Shankar Kumar Jha vs. State of Bihar & Others177 made the following observations depicting enduring constitutional wisdom in crisp words:

(emphasis supplied) VII(A). ARTICLE 132

298. The submissions made at the Bar are persuasive and even commend themselves for acceptance.

299. It was also urged that this Court should decide the controversy in light of the judgments in K.S. Subramanian (supra) and Ganga Saran (supra).

300. However, the facts and circumstances arising out of Asian Resurfacing(supra) are rather unprecedented. The extraordinary situation being faced by this Court has no parallel in living or archival memory of the institution. The imperative directions in Para 34, 36, 37 of Asian Resurfacing(supra) which were emphatically reiterated in Asian Resurfacing-II (supra), and also in Asian Resurfacing-III (supra) create a unique predicament for this Court for which past authorities are not reliable guides. In this wake, it would not be apposite to adjudicate submissions made at the Bar on merits. However, there is no denying the fact that the questions raised in the controversy go to the heart of constitutional interpretation and the root of raison detre of the High Court. Constitutional repose is not an option when faultlines have travelled to the very edifice of justice.

301. Recourse to Article 132 of the Constitution of India provides the most dignified and constitutionally decorous way out of the dilemma. Judicial discipline instructs all courts to comply with the directions of Asian Resurfacing (supra). Constitutional obligation mandates this Court to frame substantial questions as to the interpretation of the Constitution which arise out of the directions in Asian Resurfacing (supra).

302. The breadth of Article 132 of the Constitution of India underscores the importance of settling constitutional issues with decisive pronouncements of the Supreme Court through an inclusive judicial discourse amongst Constitutional Courts. The High Courts have their ears to the ground and are first to be alerted to issues of constitutional importance which start affecting the common citizens in a significant manner, or impacting the legitimacy of constitutional organs, or impeding the administration of justice.

303. Article 132 of the Constitution of India assigns a pre-eminent role to the High Courts in initiating the constitutional discourse on vital issues of constitutional interpretation. The provision accords the paramount role to the Supreme Court in deciding the questions pertaining to interpretation of the Constitution so framed by the High Court.

304. When the High Courts frame substantial questions as to interpretation of the Constitution arising in the facts and circumstances of various cases, they lay down the framework of a constitutional debate. The process creates a repository of constitutional thought where ideas survive or perish on their merits, and the discourse is essential to enlightened opinion in the legal fraternity.

305. Article 132 envisages an internal mechanism of discourse of legal ideas and issues between the Constitutional Courts which augments the capacity of the judicial process to address the myriad challenges faced by the courts.

306. The framers of the Constitution by inserting Article 132 clearly envisioned free exchange and frank speech in the discourse between Constitutional Courts. It is a core value of the Constitution which ensures that evolution of law is responsive to the needs of justice and in conformity with Basic Structure of the Constitution. If the Basic Structure of the Constitution is to remain inviolable, the Core Values of the Constitution have to be indestructible.

VII. (B) SUBSTANTIAL QUESTIONS OF LAW AS TO INTERPRETATION OF THE CONSTITUTION:

307. In the wake of the preceding narrative the following substantial questions of law as to the interpretation of the Constitution arise for consideration.

I. Whether the directions in paras 34, 36, 37 of Asian Resurfacing (supra) run contrary to the law laid down by the Five Judges Bench of the Supreme Court in A. R. Antulay (supra) and the Seven Judges Bench of the Supreme Court in P. Ramachandra Rao (supra)?

II. Whether in view of non consideration of the judgments rendered by Constitution Benches in A. R. Antulay (supra) and P. Ramachandra Rao (supra) in Asian Resurfacing (supra), the directions issued in paras 34, 36, 37 of the Asian Resurfacing (supra) require reconsideration? As a corollary, whether the judgments rendered by Larger Benches in A. R. Antulay (supra) and P. Ramachandra Rao (supra) are liable to be followed in preference to the judgment by a Bench of lesser strength in Asian Resurfacing (supra)?

III. Whether the directions in paras 34, 36, 37 of the Asian Resurfacing (supra) satisfy the ingredients of law laid down by the Supreme Court under Article 141 of the Constitution of India?

IV. Whether the directions in paras 34, 36, 37 of the Asian Resurfacing (supra) are an instance of "judicial legislation" and are relatable to Article 142 of the Constitution of India?

V. Whether the directions contained in paras 34, 36, 37 in Asian Resurfacing (supra) can be issued by the Supreme Court under Article 142 of the Constitution of India and would such directions not contravene the law laid down by the Supreme Court under Article 141 of the Constitution of India in A. R. Antulay (supra) and P. Ramachandra Rao (supra)? Alternatively whether there is conflict between Articles 142 and 141 of the Constitution of India arising in the context of Asian Resurfacing (supra) and whether Article 142 will control Article 141?

VI. Whether the directions in paras 34, 36, 37 of Asian Resurfacing (supra) can be said to be in conformity with Part III of the Constitution of India, when a similar parliamentary legislation ( Section 254 (2- A) of the Income Tax Act ) was held to be violative of Article 14 of the Constitution of India, and struck down by the Delhi High Court in Pepsi Foods Pvt. Ltd. Vs Deputy Commissioner of Income Tax and Anr.178 and read down by the Bombay High Court in Narang Overseas Pvt. Ltd. Vs Income Tax Appellate Tribunal and others179, the Gujarat High Court in CIT Vs Vodafone Essar Gujarat Ltd.180 , and finally read down by the Supreme Court in DCIT Vs Pepsi Foods Ltd.181 ? If the answer is in the negative whether the said directions in Asian Resurfacing (supra) are liable to be implemented?

VII. Alternatively whether "judicial legislation" made under Article 142 vide Asian Resurfacing (supra) can be judicially reviewed on the grounds on which legislative enactments are tested? What are the remedies for citizens who claim violation of Fundamental Rights by operation of "judicial legislation" made under Article 142?

VIII. Whether in view of the fact that while all legislations or enactments made by the legislature can be subjected to judicial review, but the absence of remedy of judicial review against judicial legislations made under Article 142 of the Constitution, impacts the broad separation of powers between the legislature and the judiciary?

IX. Whether in view of the fact that the powers vested in the High Courts by virtue of Articles 226 and 227 of the Constitution of India are part of the Basic Structure of the Constitution in light of the law propounded by the Supreme Court in L. Chandra Kumar (supra), the directions in paras 34, 36, 37 of Asian Resurfacing (supra) by prescribing a strict time limit of interim orders and curtailing the powers of High Courts under Articles 226 and 227 of the Constitution of India to extend interim orders beyond that period damage the Basic Structure of the Constitution of India?

X. Whether in view of the findings of this Court that compliance of directions in paras 34, 36, 37 of Asian Resurfacing (supra) is not realistically feasible, and automatic vacation of stay orders in compliance of the said directions in Asian Resurfacing (supra) is visiting litigants with adverse consequences for no fault of theirs, and that the trial courts are disregarding interim orders passed by this Court, paired with the inability of the High Court to provide redress to the litigants is adversely impacting administration of justice by the High Court, the said directions issued in Asian Resurfacing (supra) are liable to be reconsidered?

VIII. Orders on Applications & Grant of Certificate For Appeal to the Supreme Court

308. In light of our deliberations and discussions held above, the applications filed by various applicants are rejected. However, in view of the substantial questions formulated for consideration by the Hon'ble Supreme Court under Article 132 of the Constitution of India, we grant Certificate For Appeal to the Supreme Court to the applicants before us and all other persons who are similarly circumstanced. The Registry is directed to forthwith issue necessary certificates directly to such parties, as and when the parties approach the Registry.

309. Before concluding, this Court would like to place its appreciation on record for the efforts of the members of the Bar who assisted the Court with scholarship and eloquence. In the highest traditions of the Bar the counsels effectively raised the plight of litigants to ensure that citizenry does not lose faith in the capacity of this Court to serve justice. We had recounted the glorious traditions of this Court. But after hearing the young members of the Bar we are assured that the finest hour of this Court is not in the past.

Order Date: 03.11.2023 Dhananjai/Vandit/Ashish/Pravin (Pritinker Diwaker, CJ.) (Ashwani Kumar Mishra, J.) (Ajay Bhanot, J.)