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Report No. 58

Conclusion

5.26. We have already referred to the opinion evidence received by us on this question. We have carefully considered that evidence and have come to the conclusion that, on principle, it will be inappropriate to insert in the Constitution any specific provision in regard to the procedure which the High Courts should follow in granting interim orders of stay or injunctions on petitions filed under Article 226. We are aware that in many cases, as we have already pointed out1, writ petitions are filed, mainly, if not solely, for the purpose of obtaining stay and that stay granted indiscriminately, without notice to the respondent, may, in some cases, conceivably cause social injustice.

If, for instance, stay is granted in regard to the enforcement of taxation laws, or of any of the provisions of beneficial socio-economic legislation, without hearing the State in support of the validity of the impugned laws, injustice may ensure because speedy implementation of such laws is essential for the welfare of the Community. Occasionally, petitions filed by students against orders passed by University authorities are intended merely to postpone the implementation of the impugned order and, if stay is granted in such petitions, it creates a sense of frustration and bitterness in the minds of Universities and in fact, tends to derogate from their autonomy.

1. Para. 5.8, supra.

5.27. But, on the other hand, while exercising their discretion in granting interim stay or injunction without notice to the other side, if the High Courts examine such petition carefully and refuse to grant interim stay or injunctions unless they are satisfied that not granting such stay or injunction without notice to the respondent would really cause irreparable hardship to the petitioner, then, there will be no scope for complaint. This is a matter which must be left to be governed by the rules framed by the High Courts. In fact, some High Courts have framed rules in this matter1 In our view, a procedural matter, though of considerable importance, must normally be governed by the rules framed by the High Courts and should not be inducted in the document of the Constitution itself. That is why we do not propose to recommend the addition of any clause in Article 226 pertaining to the procedure which the High Courts should follow in granting temporary stay or injunctions in dealing with writ petition filed under the said Article.

1. See para. 5.25, supra.



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