Supreme Court Frames Standard Operating Procedure On Personal Appearance Of Government Officials In Court Proceedings [Read Judgment]

The Supreme Court has today framed the Standard Operating Procedure (SOP) on the personal appearance of the Government Officials in the court proceedings. It said that the use of the power to summon the presence of government officials must not be used as a tool to pressurize the government, particularly, under the threat of contempt.

The Court was deciding the appeals filed by the Uttar Pradesh State against the Association of Retired Supreme Court and High Court Judges, Allahabad that arose out of the two orders of the Division Bench of the Allahabad High Court. The said orders gave rise to significant questions about the separation of powers, the exercise of criminal contempt jurisdiction, and the practice of frequently summoning government officials to court.

The three-Judge Bench comprising CJI D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra said, “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 Bench held that the courts must refrain from summoning officials as the first resort and while the actions and decisions of public officials are subject to judicial review, summoning officials frequently without just cause is not permissible.

Solicitor General Tushar Mehta and Additional Solicitor General K.M. Nataraj appeared for the Union of India, Advocate Nishit Agrawal appeared for the Association, and Advocate Preetika Dwivedi appeared for the Allahabad High Court.

Factual Background -

By its order dated April 4, 2023, the High Court directed the Government of Uttar Pradesh to inter alia notify rules proposed by the Chief Justice of the High Court pertaining to ‘Domestic Help to Former Chief Justices and Former Judges of the Allahabad High Court’ by the next date of hearing. It further directed certain officials of the Government of Uttar Pradesh to be present before the court on the next date if the order was not complied with. The State moved an application before the High Court to seek a recall of the Order dated April 4, 2023 highlighting legal obstacles in complying with the directions of the High Court.

By its order dated April 29, 2023, the High Court held that the recall application was ‘contemptuous’ and initiated criminal contempt proceedings against various officials of the Government of Uttar Pradesh. The officials present in the court, including the Secretary (Finance) and Special Secretary (Finance) were taken into custody and bailable warrants were issued against the Chief Secretary and the Additional Chief Secretary (Finance). The impugned orders arose from a writ petition instituted in 2011 before the High Court by the respondent, the Association of Retired Supreme Court and High Court Judges at Allahabad. The petition inter alia sought an increase in the allowance granted to former judges of the High Court for domestic help and other expenses.

Thereafter, the Supreme Court closed the contempt proceedings against the State and the Government issued a government order revising post-retiral benefits for former judges of the High Court. The Association preferred an application to amend the prayers in the writ petition and sought parity with the new scheme framed by the Andhra Pradesh government. The High allowed the same and directed the Principal Secretary, Law and Justice, Government of Uttar Pradesh to appear in-person along with the records to “expedite the matter”. Then, it passed the impugned orders, aggrieved by which, the State was before the Apex Court.

The following were the points of law that arose for consideration before the Supreme Court:

(i) Whether the High Court had 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;

(ii) Whether the power of criminal contempt could be invoked by the High Court against officials of the Government of Uttar Pradesh on the ground that the application for recall was ‘contemptuous’; and

(iii) The broad guidelines that must guide courts when they direct the presence of government officials before the court.

The Court in the above context observed, “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.”

It further noted that 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’ and that the actions of the officials do not meet the standard of both ‘criminal contempt’ and ‘civil contempt’.

“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”, held the Court.

The Court, therefore, framed the SOP in the following manner to be 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

b. Summary Proceedings

c. Non-adversarial Proceedings

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

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

3.2 The conduct of officials

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

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

5.3 Notice and Subsequent Actions

5.4 Procedure when personal presence is directed

5.5 Addressing Non-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.

The Court concluded, “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.”

Accordingly, the Apex Court framed the SOP, disposed of the appeals, and set aside the impugned orders.

Cause Title- The State of Uttar Pradesh & Ors. v. Association of Retired Supreme Court and High Court Judges at Allahabad & Ors. (Neutral Citation: 2024 INSC 4)

Appearance:

Appellants: AAG Sharan Dev Singh Thakur, AOR Ruchira Goel, Advocates Siddharth Thakur, Adit J. Shah, Mustafa Sajjad, Keerti Jaya, AOR Prem Prakash, and Advocate Deepali Nanda.

Respondents: Advocates Kanishka Mittal, Vanya Agrawal, Vatsal Joshi, Shlok Chandra, Akshit Pradhan, Raghav Sharma, AORs Arvind Kumar Sharma, Raj Bahadur Yadav, Advocates Shlok Chandra, Sunita Sharma, AOR Gaurav Agrawal, and Advocate Abhisek Mohanty.

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