The impact of Covid-19 is being felt across the world and a variety of institutions, including judicial fora, have advocated urgent steps to contain the spread of the infection. With the Supreme Court taking the lead in implementing mitigatory measures to reduce the risk of infection and introducing heightened screening processes in its premises, other courts and tribunals have followed suit. Directions have been issued by various courts and tribunals in this regard which come into effect immediately. While the intent behind these directions are beyond doubt, there is a serious concern whether they are in accordance with law and established procedure.
The National Company Law Tribunal (NCLT) has published a notice dated 15.03.2020 through its Registrar, Shiv Ram Bairwa. The notice, which is said to have been issued “with approval of Hon’ble Acting President, NCLT“, satisfies the principle of independence of judiciary, as articulated in Article 50 of the Constitution of India. There is also sufficient scientific and empirical evidence to implement social distancing measures. Therefore, the notice cannot be faulted for placing restrictions on over-crowding. However, on closer look, there is a serious concern which requires careful scrutiny.
The notice goes on to provide an overarching direction that NCLT benches “may take up matters which require urgent hearings on request made by the concerned parties“. Subsequently, and problematically, it attempts to enter the judicial thicket by further directing that “to rest of the matters, from 16.03.2020 to 27.03.2020, keep giving adjournments“. This is precisely where the notice changes colour from being an Administrative Order to one with strong judicial overtones.
The difference between an Administrative Order and a Judicial Order has been dealt with on numerous occasions by the Supreme Court of India. In the case of Shankarlal Aggarwal And Ors vs Shankarlal Poddar And Ors (1963), the court opined as follows:
“.. we conceive that an administrative order would be one which is directed to the regulation or supervision of matters as distinguished from an order which decides the rights of parties or confers or refuses to confer rights to property which are the subject of adjudication before the Court.“
The view of the courts has been that any determination on the rights of parties involved in a legal dispute i.e. lis would necessarily be a judicial order or decision. It would necessarily follow that an order of adjournment of proceedings directly affects the rights of the parties; and therefore, can only be made on the judicial side and, consequently, is wholly a judicial order. Therefore, any direction to “keep giving adjournments” ought not to be given on the administrative side of a judicial institution and as such, would not be in accordance with law.
In an extreme scenario, such an administrative order, in the form of a notice, cannot set a precedent for future directions to, say, cancel all bail applications or dismiss all Habeas Corpus proceedings in a hypothetical situation of national security emergency.
In the case of Shanti Bhushan vs Supreme Court 2018, the court recalled the words of Mr. Justice Holmes in Northern Securities Co. v. United States, 48 wherein he had said: “Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.”
There is no doubt that we are witnessing an unprecedented global pandemic situation and that all institutions have been pressed into service to assist. However, we need to exercise caution when directions such as this are issued where the difference between the judicial and administrative sides are unclear that we end up entering the judicial thicket.