The Supreme Court has notified a five-judge Constitution bench headed by Chief Justice D Y Chandrachud for reconsidering its 2018 judgement that had held that the stay granted by a lower court or high court in civil and criminal cases will automatically expire after six months unless extended specifically.

According to a notification published on the apex court website, the Constitution bench will include Justices Abhay S Oka, JB Pardiwala, Pankaj Mithal and Manoj Misra.

The Constitution bench will commence hearing the issue after it concludes the proceedings in another case relating to the constitutional validity of section 6A of the Citizenship Act relating to illegal immigrants in Assam.

The top court, on December 1, had referred to a five-judge Constitution bench for reconsideration of its 2018 judgement on grant of stay by courts.

A three-judge bench headed by the CJI had taken note of the plea of senior advocate Rakesh Dwivedi, appearing for the High Court Bar Association of Allahabad, that the 2018 judgement takes away the power available to high courts under Article 226 of the Constitution.

Article 226 of the Constitution gives wide powers to high courts under which they can issue writs and orders to any person or government for enforcement of fundamental rights and for other purposes.

The bench has sought assistance of either the attorney general or solicitor general to deal with the legal issue arising out of the judgement.

A three-judge bench in its verdict in the case of Asian Resurfacing of Road Agency P Ltd Director Vs CBI had held that the interim order of stay granted by courts, including high courts, will stand vacated automatically unless they are specifically extended. Consequently, no trial or proceedings can remain stayed after six months.

However, later the top court had clarified that the judgement will not be applicable if the stay order has been passed by it.

The CJI-led bench prima facie agreed with the submissions of Dwivedi and said his petition will be referred to a five-judge bench as the impugned judgement was delivered by a three-judge bench of the top court.

Referring to the findings of the 2018 judgement, the bench said the directions indicated that in all matters, whether civil or criminal, orders of stay, once granted, should not continue beyond six months unless specifically extended.

“We have reservations in regard to the correctness of the broad formulation of the principles in the above terms. We are of the view that the principle which has been laid down in the above decision to the effect that a stay shall be automatically stand vacated is liable to result in a miscarriage of justice,” the bench said.

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