Column/ Interlocutory Orders Prof Upendra Baxi
16 July 22, 2019RINCE Hamlet asked the
all-important question:
“To be or not to be– that
is the question.” A similar
existential question is
involved in the exercise of
powers of judicial review to issue a stay
or interim or interlocutory orders
(referred to as SIIO). The powers to
issue SIIO are located in various civil
and criminal codes and statutes. But
they are also to be discovered in the his-
toric and inherent power of courts of
record to achieve the ends of adminis-
tration of justice and subserve the con-
stitutional basic or fundamental rights.
However, SIIO have wide-ranging
systemic and dilatory effects, making
judicial delays now endemic in the
Indian legal system. As the Supreme
Court itself observed in 2004, it is noto-
riously well known that “trials of corrup-
tion cases are not permitted to proceed
further easily” and a trial “takes any-
thing up to 20 years in completion”. And
civil suits in India provide an unwel-
come example of inter-generational jus-
tice, often extending to three genera-
tions. Although the Court addressed pri-
marily criminal trials in a recent case,
the wide-ranging SIIO norms and prin-
ciples remain equally applicable to the
civil law domain as well.
Dilemmatic judicial approaches and
perspectives also concern the funda-
mental right of lawyers to exercise the
right to representation and legislative
attempts or achievements directed to
secure an equitable and efficient system
of justice. How these cohabit with judi-
cial review powers as an essential fea-
ture of the basic structure of the
Constitution is an important issue.Two recent Supreme Court decisions
remain crucial for understanding a new
normative regime of SIIO. Apparently,
these are unrelated: Asian Resurfacing
of Road Agency vs Central Bureau of
Investigation (March 28, 2018, Justice
AK Goel and Navin Sinha with Justice
Rohinton F Nariman writing a separate
concurring judgment; simply called
“Resurfacing” hereafter) and Lber Laloo
vs All Dimasa Students Union(July 3,2019; Justices Ashok Bhushan and KM
Joseph; hereafter called “Meghalaya
decision”). But in my conjoint reading,
they are concerned with the new norma-
tive SIIO regime, one in the sphere of
corruption, the other in the sphere of
environmental regulation of eco-indif-
ferent regime of governance. And cor-
ruption and environmental degradation
are systemically related, often passing
on as development and governance.To Stay or Not to Stay?
The apex court should be saluted for laying down a new regime where stay in a trial will lapse
after six months unless extended by a speaking order. This marks a new adjudicatory leadership
P
Bhavana Gaur