To address the issue of “arbitrary and frequent” summoning of government officials by the Courts, the Supreme Court in a most learned, laudable, landmark, logical and latest judgment titled The State of Uttar Pradesh & Ors. Vs Association of Retired Supreme Court and High Court Judges at Allahabad & Ors. in Civil Appeal Nos 23-24 of 2024 and Special Leave to Appeal (C) Nos. 8575-8576 of 2023 and cited in Neutral Citation No.: 2024 INSC 4 that was pronounced most recently on January 3, 2024 minced just no words absolutely to hold that constantly summoning government officials in judicial proceedings runs contrary to the scheme envisaged by the Constitution. It must be mentioned here that a three Judge Bench of the Apex Court comprising of Hon’ble CJI Dr Dhananjaya Yashwant Chandrachud, Hon’ble Mr Justice JB Pardiwala and Hon’ble Mr Justice Manoj Misra directed Judges across the nation to exercise caution while summoning government officials and also refrain from making oral remarks which have the huge potential to humiliate the official concerned. We have definitely witnessed many times such instances where High Court Judges virtually scream at the government officials which no self respecting person even an ordinary person would ever like to hear.
This is exactly what the Apex Court has strongly objected to and there is a lot of merit in it. The Apex Court also made it clear that the presence of officials may not be necessary if the concerned issue can be addressed through affidavits or other documents. The Bench made it clear that, “The appearance of government officials before courts must not be reduced to a routine measure in cases where the government is a party and can only be resorted to in limited circumstances.”
We need to note that the Supreme Court was deciding on an appeal that was filed by the UP State Government against an order of Allahabad High Court in April 2023 that ordered the arrest of two State officials – Finance Secretary SMA Rizvi and Special Secretary (Finance) Sarayu Prasad Mishra after it issued show-cause notices of contempt and bailable warrants over non-compliance of a decision to provide facilities to retired High Court Judges. It must also be noted that although the top court ordered the release of the two Secretaries who were taken into custody, Solicitor General Tushar Mehta appearing for the Centre and Additional Solicitor General KM Natarj for UP doubted the High Court’s power to initiate contempt and requested for SOP to deal with frequent summoning of officials in court.
Do note, the Bench notes in para 42 that, “In the present case, instead of adjudicating on the legal position taken by the Government of Uttar Pradesh on affidavit or hearing the Additional Advocate General present in the court, the High Court repeatedly summoned government officials. The government was also directed to notify the Rules based on a “no objection” from the officials of the Finance Department purportedly made before the High Court, which is now contested by the state. Such situations can be avoided in cases where submissions on affidavit can be sought and the law officers of the Government are present in court, with instructions. The issuance of bailable warrants by the High Court against officials, including the Chief Secretary, who was not even summoned in the first place, further indicates the attempt by the High Court to unduly pressurise the government.”
Most forthrightly, the Bench mandates in para 44 propounding that, “Courts must refrain from summoning officials as the first resort. While the actions and decisions of public officials are subject to judicial review, summoning officials frequently without just cause is not permissible. Exercising restraint, avoiding unwarranted remarks against public officials, and recognizing the functions of law officers contribute to a fair and balanced judicial system. Courts across the country must foster an environment of respect and professionalism, duly considering the constitutional or professional mandate of law officers, who represent the government and its officials before the courts. Constantly summoning officials of the government instead of relying on the law officers representing the government, runs contrary to the scheme envisaged by the Constitution.”
Most significantly, what stands out in this robust judgment is succinctly laid bare in para 45 wherein it is mandated that, “Enriched by the valuable insights shared in discussions with my esteemed colleagues Justice J.B. Pardiwala and Justice Manoj Misra, we have framed a Standard Operating Procedure (SOP) specifically addressing the appearance of Government Officials before the courts. At its core, this SOP emphasizes the critical need for courts to exercise consistency and restraint. It aims to serve as a guiding framework, steering courts away from the arbitrary and frequent summoning of government officials and promoting maturity in their functioning. The SOP is set out below:
Standard Operating Procedure (SOP) on Personal Appearance of Government Officials in Court Proceedings
This Standard Operating Procedure is applicable to all court proceedings involving the government in cases before the Supreme Court, High Courts and all other courts acting under their respective appellate and/or original jurisdiction or proceedings related to contempt of court.
1. Personal presence pending adjudication of a dispute
1.1 Based on the nature of the evidence taken on record, proceedings may broadly be classified into three categories:
a. Evidence-based Adjudication: These proceedings involve evidence such as documents or oral statements. In these proceedings, a government official may be required to be physically present for testimony or to present relevant documents. Rules of procedure, such as the Code of Civil Procedure, 1908, or Criminal Procedure Code 1973, govern these proceedings.
b. Summary Proceedings: These proceedings, often called summary proceedings, rely on affidavits, documents, or reports. They are typically governed by the Rules of the Court set by the High Court and principles of Natural Justice.
c. Non-adversarial Proceedings: While hearing non-adversarial proceedings, the court may require the presence of government officials to understand a complex policy or technical matter that the law officers of the government may not be able to address.
1.2 Other than in cases falling under para 1.1(a) above, if the issues can be addressed through affidavits and other documents, physical presence may not be necessary and should not be directed as a routine measure.
1.3 The presence of a government official may be directed, inter alia, in cases where the court is prima facie satisfied that specific information is not being provided or is intentionally withheld, or if the correct position is being suppressed or misrepresented.
1.4 The court should not direct the presence of an official solely because the official’s stance in the affidavit differs from the court’s view. In such cases, if the matter can be resolved based on existing records, it should be decided on merits accordingly.
2. Procedure prior to directing personal presence
2.1 In exceptional cases wherein the in-person appearance of a government official is called for by the court, the court should allow as a first option, the officer to appear before it through video conferencing.
2.2 The Invitation Link for VC appearance and viewing, as the case may be, must be sent by the Registry of the court to the given mobile no(s)/e-mail id(s) by SMS/email/WhatsApp of the concerned official at least one day before the scheduled hearing.
2.3 When the personal presence of an official is directed, reasons should be recorded as to why such presence is required.
2.4 Due notice for in-person appearance, giving sufficient time for such appearance, must be served in advance to the official. This would enable the official to come prepared and render due assistance to the court for proper adjudication of the matter for which they have been summoned.
3. Procedure during the personal presence of government officials: In instances where the court directs the personal presence of an official or a party, the following procedures are recommended:
3.1 Scheduled Time Slot: The court should, to the extent possible, designate a specific time slot for addressing matters where the personal presence of an official or a party is mandated.
3.2 The conduct of officials: Government officials participating in the proceedings need not stand throughout the hearing. Standing should be required only when the official is responding to or making statements in court.
3.3 During the course of proceedings, oral remarks with the potential to humiliate the official should be avoided.
3.4 The court must refrain from making comments on the physical appearance, educational background, or social standing of the official appearing before it.
3.5 Courts must cultivate an environment of respect and professionalism. Comments on the dress of the official appearing before the court should be avoided unless there is a violation of the specified dress code applicable to their office.
4. Time Period for compliance with judicial orders by the Government
4.1 Ensuring compliance with judicial orders involving intricate policy matters necessitates navigating various levels of decision-making by the Government. The court must consider these complexities before establishing specific timelines for compliance with its orders. The court should acknowledge and accommodate a reasonable timeframe, as per the specifics of the case.
4.2 If an order has already been passed, and the government seeks a revision of the specified timeframe, the court may entertain such requests and permit a revised, reasonable timeframe for the compliance of judicial orders, allowing for a hearing to consider modifications.
5. Personal presence for enforcement/contempt of court proceedings
5.1 The court should exercise caution and restraint when initiating contempt proceedings, ensuring a judicious and fair process.
5.2 Preliminary Determination of Contempt: In a proceeding instituted for contempt by wilful disobedience of its order, the court should ordinarily issue a notice to the alleged contemnor, seeking an explanation for their actions, instead of immediately directing personal presence.
5.3 Notice and Subsequent Actions: Following the issuance of the notice, the court should carefully consider the response from the alleged contemnor. Based on their response or absence thereof, it should decide on the appropriate course of action. Depending on the severity of the allegation, the court may direct the personal presence of the contemnor.
5.4 Procedure when personal presence is directed: In cases requiring the physical presence of a government official, it should provide advance notice for an in-person appearance, allowing ample time for preparation. However, the court should allow the officer as a first option, to appear before it through video conferencing.
5.5 Addressing Non-Compliance: The court should evaluate instances of non-compliance, taking into account procedural delays or technical reasons. If the original order lacks a specified compliance timeframe, it should consider granting an appropriate extension to facilitate compliance.
5.6 When the order specifies a compliance deadline and difficulties arise, the court should permit the contemnor to submit an application for an extension or stay before the issuing court or the relevant appellate/higher court.”
To summarize, the Bench then points out in para 46 that, “In a nutshell, the conclusions reached in this Judgement are as follows:
a. The High Court did not have the power to direct the State Government to notify Rules proposed by the Chief Justice pertaining to post-retiral benefits for former Judges of the High Court. The Chief Justice did not have the competence to frame the rules under Article 229 of the Constitution. Further, the High Court, acting on the judicial side, does not have the power to direct the Government to frame rules proposed by it on the administrative side.
b. The power of criminal contempt could not be invoked by the High Court against officials of the Government of Uttar Pradesh on the ground that the application for recall of the First Impugned Order was ‘contemptuous’. The actions of the officials do not meet the standard of both ‘criminal contempt’ and ‘civil contempt’.
c. The conduct of the High Court in frequently summoning government officials to exert pressure on the government, under the threat of contempt, is impermissible. Summoning officials repeatedly, instead of relying on the law officers representing the government or the submissions of the government on affidavit, runs contrary to the scheme envisaged by the Constitution.
d. The SOP on Personal Appearance of Government Officials in Court Proceedings framed by this Court in Para 45 of this Judgement must be followed by all courts across the country. All High Courts shall consider framing rules to regulate the appearance of Government officials in court, after taking into account the SOP which has been formulated above.”
Be it noted, the Bench notes in para 47 that, “Both the Impugned Orders dated 4 April 2023 and 19 April 2023 are set aside and the appeals are disposed of. The High Court is at liberty to hear the writ petition, in view of the observations made in this judgement.”
It is worth noting that the Bench notes in para 48 that, “The Registry is directed to communicate the judgment to the Registrar General of every High Court.”
All told, it is the bounden duty of all the Judges whether in the District Courts or in the High Courts to abide in letter and spirit to what the three Judge Bench of the Supreme Court led by the CJI Dr DY Chandrachud have laid down in the guidelines in this notable judgment and act accordingly. It is also made clear by the Apex Court that personal presence should be exceptional and not made a routine affair. Very rightly so! The top court has also strictly cautioned the Judges of High Courts to refrain from oral remarks humiliating the officers and passing comments on their social background, dress etc as it demoralizes and humiliates the officers which certainly cannot be ever justified! No denying!
Sanjeev Sirohi
