Read Time: 10 minutes

Synopsis

The Supreme Court has on January 3, 2024 formulated a Standard Operating Procedure for summoning of government officials in court proceedings, making it mandatory for all courts to follow it.

 

A bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra also directed all High Courts to consider framing rules to regulate the appearance of government officials in court, after taking into account the SOP.

 

"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," the bench said.

 

Acting on a petition filed by Uttar Pradesh government, the court set aside Allahabad High Court's April 4 and 19 orders initiating contempt action against top officers for seeking recall of direction to notify rules to provide domestic help to former Chief Justices and former judges of the HC.

 

The bench said 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," the bench said.

 

The court also explained 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’," the bench said.

 

The court pointed out Article 229(2) pertains only to the service conditions of ‘officers and servants’ of the High Courts and does not include Judges of the High Court (both sitting and retired judges). The Chief Justice does not have the power, under Article 229, to make rules pertaining to the post-retiral benefits payable to former Chief Justices and judges of the High Court. Therefore, the Rules proposed by the Chief Justice, in the present case, do not fall within the competence of the Chief Justice under Article 229. The reliance placed on the provision in the preamble to the Rules is misplaced, it said.

 

"It is a settled principle of law that merely because reference is made to a wrong provision of law while exercising power, that by itself does not vitiate the exercise of power so long as the power of the authority can be traced to another source of law. However, in the Rules, the Impugned Orders or in its submissions before this Court, the High Court has not brought to the fore any other source of law which empowers the Chief Justice to frame binding rules for post-retiral benefits of former judges of the High Court," the bench said.

 

"In our considered opinion, the reliance on the (previous) judgements of this Court to justify the promulgation of Rules by the Chief Justice is based on an erroneous and over-expansive interpretation of the directions of this Court," the bench said.

 

With regard to SoP, the apex court said 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 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," the bench said.

 

The court said in exceptional cases wherein the in-person appearance of a government official is called for by the court, as a first option, the officer should be allowed to appear before it through video conferencing.

 

The Invitation Link for VC appearance should be shared at least one day before the scheduled hearing.

 

"Government officials participating in the proceedings need not stand throughout the hearing....oral remarks with the potential to humiliate the official should be avoided. The court must refrain from making comments on the physical appearance, educational background, or social standing of the official appearing before it. 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," the bench said.

 

Cause Title: The State of Uttar Pradesh & Ors Vs Association of Retired Supreme Court and High Court Judges at Allahabad & Ors