Validity of automatic vacation of stay | Constitution Bench overturns Asian Resurfacing, holds stay orders cannot be automatically vacated

Validity of Automatic Vacation of Stay Orders

Judges: D.Y. Chandrachud CJI, A.S. Oka J, J.B. Pardiwala J, Pankaj Mithal J, Manoj Misra J

Today, a five-judge Constitution Bench of the Supreme Court led by Chief Justice D.Y. Chandrachud unanimously held that stay orders granted in pending cases do not automatically lapse. The Bench also held that the Court did not have the discretionary power under Article 142 to declare automatic vacation of stay orders. 

The Bench was reconsidering a three-judge bench decision in  Asian Resurfacing of Road Agency v Central Bureau of Investigation (2018). In this case, the bench had held that the stay order granted in pending civil and criminal cases would automatically be vacated (would cease to exist) after six months. 


In Asian Resurfacing, a three-judge Bench of the Supreme Court comprising Justices Adarsh Kumar Goel, Navin Sinha and Rohinton Nariman held that in ordinary circumstances, a Stay Order should not exceed two to three months. They also held that a stay should not be unconditional or for an indefinite duration.

The Court had directed that in all civil and criminal proceedings where a stay Order is granted, the Order would be in operation only for six months and would expire after that.

Further, any extension of stay could only be granted by a subsequent reasoned Order showing that the case is of “such exceptional nature that continuing the stay was more important than having the trial finalised.”

On 1 December, a three-judge Bench led by the Chief Justice expressed reservations on the correctness of the conclusions in Asian Resurfacing and referred the matter to a five-judge Constitution Bench.

Court cannot use discretionary powers for automatic vacation of High Court orders

Justice A.S. Oka pronounced the majority opinion on behalf of himself and CJI Chandrachud with Justices J.B. Pardiwala and Manoj Misra. Right off the bat, he stated the Bench did not agree with the Asian Resurfacing judgement. “We have, of course, held that there cannot be an automatic vacation of stay” he said. 

The Bench noted that a “constitutional court should not fix a time-bound schedule for disposal of cases pending in any Court.” They held that this could only be done in certain circumstances “to meet extraordinary situations,” they said.

The pattern of pendency and disposal, the Bench held, was different in different courts. Therefore, at the grassroots level, the concerned courts were best suited to exercise their discretion to decide time-bound disposal grants of stays. 

Further, the Bench also clarified that the Supreme Court could not declare an automatic vacation of orders by High Courts under Article 142

Justice Oka announced that they had laid down certain guidelines to deal with interim reliefs and their vacation. He also stated that they had laid down a non-exhaustive list of guidelines to be followed when exercising the discretionary power under Article 142. 

Justice Pankaj Mithal authored a concurring opinion in the case. He added that if an interim order does not specify a date of automatic vacation, the stay would remain in effect until the case is decided or till an application is moved for its disposal.