ARTICLE 21 AND THE RIGHT TO LIFE / JUDICIAL PROCESS / STAYS AND INJUNCTIONS

The Mysterious Disappearance of the Stay Hearing

JANUARY 13, 2024 GAUTAM BHATIA3 COMMENTS

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.

But to an Indian constitutional lawyer, these proceedings might have been a little bewildering, given their disappearance from our domestic scene. 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.* 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. 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.

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 (see here) 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. 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.

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, 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.

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.

It is in this context that the Supreme Court’s treatment of these two cases is surprising. 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.

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 (see here).

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. 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.**

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.” 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.

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. 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?

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.” 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).

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.

*By way of disclosure, the present author is one of the counsel representing the ex-MP.

**In the Moitra case – which the present author witnessed – the Court made it clear that it simply wasn’t interested in a stay, and no purpose would be served by pressing for one.