A stay order is granted by a court after 'application of mind' and with the intention of temporarily stopping or postponing any judicial proceeding through the court or legal authorities in India, in order to secure the rights of a citizen. It has not 'disappeared'. The CJI has signalled that automatic expiry of stay orders without 'application of mind' is unconstitutional.
Gautam Bhatia, with typical perversity, writes in his blog that the remedy has disappeared-
The Mysterious Disappearance of the Stay Hearing
JANUARY 13, 2024
Earlier this week, the International Court of Justice held a two-day hearing on “provisional measures” in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). The hearing – which took place twelve days after South Africa first instituted the case against Israel – focused on South Africa’s request for various provisional measures which would protect the rights of the parties in the interim period leading up to the final hearing and determination of the case.
Provisional measures have nothing to do with stay orders. There is no prior judicial process being stayed in the aforementioned case. Why does Bhatia mention this? It is because he is as stupid as shit.
But to an Indian constitutional lawyer, these proceedings might have been a little bewildering, given their disappearance from our domestic scene.
How can the ICJ stay something which does not exist- viz. some prior judicial process? That is what is bewildering here.
Consider two recent, prominent cases. In December, the Lok Sabha expelled Mahua Moitra MP from Parliament. Moitra immediately moved the Supreme Court challenging her expulsion.
Prima facie, Parliament acted correctly. The precedent is the 2007 Raja Ram Pal case.
The Supreme Court took up the case for hearing on January 3, on reopening after the winter break. On that day, it issued notice to the Lok Sabha secretariat, and after giving parties time to file their replies and rejoinders, set a date for hearing the case in March. A prayer for interim relief – in the form of allowing Moitra to sit in Parliament during the Budget Session, without voting privileges – was declined.
That was a remedy which the Ethics Committee could have supplied. They chose not to because of Moitra's atrocious behaviour.
With the Budget Session due at the end of February, and the Lok Sabha elections due soon after, even if the case is heard in March, it would already have become infructuous with respect to Moitra.
Whereas letting her back into the Lok Sabha would have made Parliament's vote in the matter infructuous. Prima facie, the Legislature had right on their side. Moitra had shitty lawyers- batty Bhatia amongst them. Incidentally, it was a prominent Supreme Court advocate's affidavit which sank Moitra. Her own lawyer was censured by the High Court for misbehaviour.
The second case is the constitutional challenge to the Election Commissioners Act, which had also been passed in the winter session of Parliament. The Act sought to get around the Supreme Court’s judgment in Anoop Baranwal
which was based on the fact that Parliament had not passed a specific law in this respect
by creating a selection committee for election commissioners that gave a decisive majority to the union executive. When the challenge came before the Supreme Court, it issued notice, and listed the case for hearing in April. A request for a stay was declined, on the ostensible ground that the State had not been given advance notice.
The plain fact is that Parliament had done something it had previously chosen not to do. The constitutionality of the new law could only be questioned by a Constitution Bench. Why does batty Bhatia not know this? How can you 'stay' an act of Parliament? You can only strike it down as unconstitutional but this requires the CJI to create such a bench.
It is important to note that the next vacancy in the Election Commission is in February, before the Lok Sabha elections due two months later. The Court’s April date, therefore, means that the composition of the Election Commission for the Lok Sabha elections will have been done under the impugned law.
I can impugn any law I like. But if Parliament passed it, it is law till it is declared unconstitutional.
Both cases were heard by a bench presided over by Justice Sanjiv Khanna, who is next in line to be the Chief Justice (and therefore, serve as an insight into his judicial philosophy in advance of his tenure). What is striking about both these cases is that they involved constitutional challenges in extremely time-sensitive contexts,
How can a two judge bunch stay a statute? How could Khanna & Datta allow Moitra's petition when it would effectively nullify a perfectly proper act of Parliament? The plain fact is, the lawyers pushing both cases had no answer to these questions.
and in both cases, the dates for hearing set by the Court took the case beyond the period of time where a judgment by the Court would make a significant difference.
Which is why it was a waste of time and money to bring the cases in the first place.
Now, taken by themselves, these dates are not unreasonable: setting a case for hearing three (or even four) months after the institution of proceedings is par for the course, given that parties will need to file replies and rejoinders (it is a different matter whether the case will actually go ahead on the stipulated date). However, that is precisely why there exists a mechanism in the toolbox of constitutional judges in time-sensitive cases: that is, a hearing on the limited issue of whether or not to stay the legislation/State action that has been challenged (or to grant other forms of modulated relief). In such a stay hearing, the petitioners will attempt to persuade the Court – among other things – that not granting a stay would cause irreparable harm or injury. The State will argue otherwise. But there will be an argument.
No cogent argument was presented to Khanna & Datta in either case. Shitty lawyers are to blame if they present shitty cases. It is no good pretending that the Supreme Court only exists so as to frustrate the will of the Legislature.
It is in this context that the Supreme Court’s treatment of these two cases is surprising.
This shitty lawyer is surprised when shitty legal arguments are rejected by Judges. This is deeply unfair. Courts should take pity on shitty lawyers and grant them anything they ask for.
The bench categorically ruled out granting a stay, or any other kind of interim relief, on the day these cases came up for notice. Fair enough. However, the bench also appeared to believe that having said that, there was nothing else to do until the cases came up for hearing in the ordinary course of things. This is evidently not the case: the most logical thing for the bench to have done was to fix a date for a hearing on the limited issue of stay/interim relief.
Only if the lawyers had made the case that there would be substantial harm if this was not done as quickly as possible. Lazy lawyers are shitty lawyers.
One doesn’t even have to look as far as the International Court of Justice to understand how normal such a course of action is for a court. On this blog, we have recently discussed the constitutional challenge to Kenya’s Finance Act. The Act received Presidential assent on 26th June 2023; on 10th July 2023, after a detailed hearing, the High Court granted what, in Kenya, is called a “conservatory order” and what we would understand as an “interim stay.” (see here and here). The State carried this in appeal, and the Court of Appeal, after another detailed hearing, lifted the stay (see here). The case was ultimately heard on merits, and a judgment partially striking down the Act was delivered in late November 2023.
The housing levy, which is discriminatory, continues to be collected. Batty Bhatia doesn't get that the Bench did not override Parliament. There will be ample time to change the wording of the Finance Act so as to render it kosher.
While the State ultimately “won” on the question of a stay, this chronicle is an example of how constitutional courts can act in time-sensitive constitutional challenges: that is, pending final determination, to hold a full-fledged hearing on the question of a stay, where both parties will present their arguments, and then to deliver a reasoned judgment, applying established constitutional standards.
But without making any substantive change in what Parliament decided. They can always redraft relevant Acts to make them kosher at a later time.
This is in stark contrast to the approach in the two cases discussed above, where the Court was not only dismissive about granting a stay, but did not even appear to consider the possibility of hearing arguments on the question.
Because those arguments were prima facie stupid.
On this blog, we have previously discussed the concept of “judicial evasion”: a situation where the Court waits years before hearing a constitutional challenge, allows the executive to accomplish a fait accompli, and thus “decides (in favour of the executive) by not deciding.”
You may call it anything you like but this is simply a matter of 'political question' or parliamentary sovereignty.
The cases discussed above are not instances of judicial evasion, but they – equally – have the effect of facilitating executive impunity by allowing impugned laws or State action to accomplish their core objective (which itself is under challenge), without facing judicial scrutiny.
There is judicial scrutiny and the Legislature is welcome to change the wording of Acts so as to render them kosher.
While not directly relevant to this post, it is, I think, profitable to compare the Court’s approach to constitutional challenges with the Court’s approach to personal liberty.
In both case what matters are facts about the case. Was there great and continuing damage of an unlawful kind caused by an action of the State? Conversely, might there be a great and continuing danger to the commonweal by quashing an action of the State?
Again, two recent cases stand out: the bail orders of Mahesh Raut and Gautam Navlakha, in the Bhima-Koregaon cases. Consider the case of Mahesh Raut. After spending many years in jail without trial under the UAPA, Raut was eventually granted bail by the Bombay High Court, on merits, in September. While granting bail, the High Court stayed its own order for a week, allowing the National Investigative Agency to appeal to the Supreme Court. Now, this is bewildering enough in its own right: a pre-emptive “self-stay” by a court below is sometimes understandable in a case where a statute has been struck down for unconstitutionality, and one does not wish to create irreversible consequences until the appellate court has at least had an opportunity to consider the appeal once; but why on earth would a court grant a pre-emptive “self-stay” on a bail order, keeping a person in jail just to allow the State to appeal that order?
The answer is obvious. What if the guy really is a dangerous terrorist? Let the Supreme Court take responsibility if the guy goes on a killing spree once out of jail. You may call this a 'passing of the buck' but it is perfectly legal.
Be that is it may, when Mahesh Raut’s case came to the Supreme Court, the Court – without giving any reasons – extended the stay until the time it would get around to hearing the appeal. Consequently, despite having a detailed bail order in his favour, Mahesh Raut has been in jail for many further months, because the Supreme Court hasn’t had time to hear the State’s appeal, and the “pre-emptive self-stay” that had been granted to give the State the bare minimum time it needed to file an appeal, has transmogrified into an ever-extending, open-ended, limitless “stay.”
Moreover, as CJI has said, there can be no automatic evacuation of such 'stay' orders.
Exactly the same thing happened in Gautam Navlakha’s case (with the difference that Navlakha is not presently in jail, as he was granted house arrest for medical reasons).
The Bench has no great love of terrorists. I wonder why?
One wonders at these very different approaches of the Court to the question of a stays in cases challenging the State, and cases of personal liberty. Indeed, as the Court has neither held a hearing on stay in the Moitra and Election Commission cases, or provided reasons for extending the pre-emptive “self-stay” in Raut or Navlakha’s cases, further critique or discussion is technically impossible: only wonder is left.
The wonder is why anybody would pay good money for this nutter's legal advise.
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