Supreme Court: In an appeal against Allahabad High Court’s orders, which gave rise to questions about the separation of powers, the exercise of criminal contempt jurisdiction, and the practice of summoning Government Officials to the Court, the full Bench of Dr. Dhananjaya Y Chandrachud, CJI, JB Pardiwala and Manoj Misra, JJ. gave a Standard Operating Procedure along with a slew of guidelines as to require the presence of Government Officials.
Factual Matrix
In the matter at hand, the High Court, vide order dated 04-04-2023, 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 and directed certain Government officials to be present before the Court if the order was not complied with. In response to this, the State moved an application before the High Court to seek a recall of the Order dated 4-04-2023, highlighting legal obstacles in complying with the directions of the High Court. The High Court vide order dated 19-04-2023, held that the recall application was ‘contemptuous’ and initiated criminal contempt proceedings against various Government officials. The officials present in the Court, including the Secretary and Special Secretary (Finance) were taken into custody and bailable warrants were issued against the Chief Secretary and the Additional Chief Secretary (Finance).
The Court, vide an interim order dated 20-04-2023, stayed the operation of both the Impugned Orders and the Government officials, who were taken into custody were directed to be released.
Guidelines to guide the Courts as to direct the presence of Government Officials
The Court took note of the conduct of the High Court in frequently summoning officials of the Government. The Court said 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. The Court stated “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”. further, the Court said that the Law officers act as the primary point of contact between the Courts and the Government and they not only represent the Government as an institution but also represent the various departments and officials that comprise the Government. The Court said that in the present case, the High Court repeatedly summoned Government officials and the issuance of bailable warrants by the High Court against officials, including the Chief Secretary, who was not even summoned in the first place, indicated the High Court’s attempt to unduly pressurise the Government.
Placing it’s reliance on State of Uttar Pradesh v. Manoj Kumar Sharma, (2021) 7 SCC 806, the Court said that the Courts must refrain from summoning officials as the first resort and the 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. Further, the Court said that constantly summoning the Government Officials instead of relying on the law officers representing the Government, runs contrary to the scheme envisaged by the Constitution.
Standard Operating Procedure (SOP) on Personal Appearance of Government Officials in Court Proceedings
Considering the present situation, the Bench framed a Standard Operating Procedure (SOP) specifically addressing the appearance of Government Officials before the Courts, which 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 applicable to all the 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:
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.
b. Summary Proceedings: These 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 the Government officials to understand a complex policy or technical matter that the law officers of the Government may not be able to address.
The Court said that the other than in cases falling under ‘Evidence-based Adjudication’, 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. The Court also said that 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. The Court said that the presence of an official should not be asked for 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
Video Conferencing (VC): The Court said that 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. 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/e-mail id by SMS/email/WhatsApp of the official concerned at least one day before the scheduled hearing. In case of in-person appearance, reasons should be recorded as to why such presence is required along with due notice for in-person appearance, giving sufficient time for such appearance, must be served in advance to the official.
3. Procedure during the personal presence of the Government officials
Scheduled Time Slot: The Court should, designate a specific time slot for addressing matters where the personal presence of an official or a party is mandated.
The conduct of officials: The Government officials participating in the proceedings need not stand throughout the hearing, it should only be required only when the official is responding to or making statements in Court.
What must be avoided?
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oral remarks with the potential to humiliate the official
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Refrain from making comments on the physical appearance, educational background, or social standing of the official appearing before it.
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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
The Court clarified that ensuring compliance with judicial orders involving intricate policy matters necessitates navigation of various levels of decision-making by the Government. Thereofore, the Court said that such complexities must be considered by the Court before establishing specific timelines for compliance with its orders.
Hence, a reasonable timeframe, as per the specifics of the case, should be accomodated.
In case Government seeks a revision of an already passed order in 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- There should be exercise of caution and restraint when initiating contempt proceedings, ensuring a judicious and fair process.
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.
Notice and Subsequent Actions: Following the issuance of the notice, the Court should carefully consider the response from the alleged contemnor and on the basis of the same, 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.
Procedure when personal presence is directed: In cases requiring the physical presence of a Government official, an advance notice for an in-person appearance, allowing ample time for preparation, should be given. However, the Court should allow the officer as a first option, to appear before it through video conferencing.
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. 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.
[State of Uttar Pradesh v. Association of Retired Supreme Court and High Court Judges at Allahabad, 2024 SCC OnLine SC 14, Decided on: 03-01-2023]
