Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
2024 INSC 4
CIVIL APPELLATE JURISDICTION
Civil Appeal Nos 23-24 of 2024
Special Leave to Appeal (C) Nos. 8575-8576 of 2023
The State of Uttar Pradesh & Ors. …Appellants
Versus
Association of Retired Supreme Court and
High Court Judges at Allahabad & Ors. …Respondents
Signature Not Verified
Digitally signed by
Sanjay Kumar
Date: 2024.01.03
13:07:46 IST
Reason:
1
J U D G M E N T
Dr Dhananjaya Y Chandrachud, CJI
Table of Contents
I. Factual Background ...................................................................................... 4
II. The High Court did not have the power to direct the notification of the
Rules proposed by the Chief Justice ......................................................... 14
III. Criminal Contempt cannot be initiated against a party for availing legal
remedies and raising a legal challenge to an order ................................. 18
IV. Summoning of Government Officials before Courts ............................ 21
2
1. Leave granted.
2. The present appeals arise from two orders of the Division Bench of the High
1 2
Court of Judicature at Allahabad dated 4 April 2023 and 19 April 2023. The
Impugned Orders have given 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.
3
3. By its order dated 4 April 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. The High Court 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.
4. The State of Uttar Pradesh moved an application before the High Court to
seek a recall of the Order dated 4 April 2023 highlighting legal obstacles in
4
complying with the directions of the High Court. By its order dated 19 April 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).
1
“High Court”
2
“Impugned Orders”
3
“First Impugned Order”
4
“Second Impugned Order”
3
I. Factual Background
5. The Impugned Orders arise from a writ petition instituted in 2011 before the
High Court by the first 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.
6. While the petition was pending before the High Court, a three-judge bench
5
of this Court in P Ramakrishnan Raju vs. Union of India , decided a batch of
cases pertaining inter alia to the post-retiral benefits payable to former judges of
the High Courts. In its judgement dated 31 March 2014, this Court appreciated the
scheme formulated by the State of Andhra Pradesh and recommended that other
States also formulate similar schemes for post-retiral benefits to former judges of
the High Courts, preferably within six months from the Judgement. The Court held:
“ 34. While appreciating the steps taken by the Government
of Andhra Pradesh and other States who have already
formulated such scheme, by this order, we hope and
trust that the States who have not so far framed such
scheme will formulate the same, depending on the local
conditions, for the benefit of the retired Chief Justices and
retired Judges of the respective High Courts as early as
possible preferably within a period of six months from the
date of receipt of copy of this order.”
(emphasis supplied)
7. Subsequently, contempt petitions were instituted before this Court for non-
compliance with the Court’s decision in P Ramakrishnan Raju (supra). This Court
directed all states to file affidavits detailing the steps taken to comply with the
5
Writ Petition (Civil) No. 521/2002
4
directions. By an Order dated 27 October 2015, reported as Justice V.S. Dave,
President, the Association of Retired Judges of Supreme Court and High
6
Courts vs. Kusumjit Sidhu and Others , this Court closed the contempt
proceedings against the State of Uttar Pradesh, noting that it had already framed
a scheme in accordance with the Court’s directions. The Court further held that a
slight variation from the yardstick in the Andhra Pradesh scheme is permissible
keeping in mind the local conditions and directed that states that are paying less
than the yardstick, shall consider upward revision at the ‘appropriate stage and
time’. The court held:
“ State of Meghalaya, Manipur, Maharashtra, Goa,
Mizoram, Punjab, Tamil Nadu, Karnataka, Andhra
Pradesh, Sikkim, Arunachal Pradesh, Telangana,
Uttar Pradesh, Madhya Pradesh, Tripura, Government
of NCT of Delhi, Haryana, Uttarakhand, Rajasthan,
Chhattisgarh, Kerala, Gujarat and Assam
The counter-affidavits/responses filed on behalf of each of
the aforesaid States indicate that a scheme has been
framed in accordance with the directions of the Court.
While some of the States are paying more than what the
State of Andhra Pradesh (Adopted as the yardstick by the
Court) is paying by way of post-retirement allowances
some others are affording lesser amount(s). A little
variation from the yardstick can be understood in terms of
the flexibility contemplated in paragraphs 33 and 34 of the
judgment which enable the States to frame their
respective schemes keeping in mind the local conditions.
As all the aforesaid States have framed their schemes,
we direct that the contempt proceedings insofar as these
states are concerned are closed.
We also direct that such of the states where the
allowances paid are lesser than the State of Andhra
Pradesh, shall consider the necessity of an upward
revision of such allowances at the appropriate stage and
time.”
(emphasis supplied)
6
Contempt Petition (Civil) Nos. 425-426 of 2015.
5
8. The Government of Uttar Pradesh issued a Government Order dated 3 July
2018 and revised the post-retiral benefits for former judges of the High Court. The
domestic help allowance payable to retired Chief Justices and Judges of the High
Court was increased to Rs. 20,000/- (per month) for former Chief Justices and
Rs.15,000/- (per month) for former judges. Under this revised scheme, after the
death of a former Chief Justice or judge, the surviving spouse would be entitled to
receive Rs. 10,000/- and Rs 7,500/- per month, respectively for life. In 2022, the
Government of Andhra Pradesh increased the allowance to Rs. 50,000 for former
Chief Justices and Rs. 45,000 for former judges of the High Court. The first
respondent preferred an application to amend the prayers in the writ petition and
sought parity with the new scheme framed by the Andhra Pradesh government.
9. From the submissions of the parties and documents on the record, it
appears that sometime between 2019 and 2023, the Chief Justice of the High Court
proposed certain ‘Rules for providing Domestic Help to Former Chief Justices and
7
Former Judges of Allahabad High Court ’. The preamble to the Rules indicates that
they were framed by the Chief Justice in the exercise of his purported powers under
Article 229 of the Constitution. The operative portion of the Rules, which lie at the
heart of the present case, follows:
“In exercise of the powers conferred by Article 229 of
the Constitution of India, the Chief Justice of the High
Court of Judicature at Allahabad is pleased to frame
the following rules for providing the domestic help to
former Chief Justices and former Judges of the High
Court.
…
7
“Rules”
6
“ 6. Selection of Domestic Help: The former Chief
Justice or former Judge may at her, or his discretion
select a person to be engaged as a Domestic Help.
The engagement of a
7. Contractual appointment:
Domestic Help under Rule 6 shall be on a contractual
basis and will be available until the former Chief Justice
or former Judge is entitled to the benefit of the facility
under Rule 5 and until the Domestic Help performs
duties satisfactorily subject to the certification of the
former ChiefJustice or former Judge.
8. Reimbursement: Upon engagement, the monthly
remuneration payable to the Domestic Help shall be
reimbursed by the High Court to the former Chief
Justice or former Judge after completion of the month
in each month.
9. Wages: The wages to be reimbursed by the High
Court to the former Chief Justice or former Judge for
the engagement of the Domestic Help shall be
equivalent to the salary payable to a Class-IV
employee of the High Court in the grade of a peon or
equivalent at the minimum of the scale of pay inclusive
of dearness allowance.
…”
(emphasis supplied)
10. In the above factual background, the High Court heard the writ petition,
summoned officials of the Government of Uttar Pradesh and passed various
orders, including the two Impugned Orders. The orders of the High Court passed
before the Impugned Orders are pertinent to understand the course of events
before the High Court while adjudicating the subject writ petition.
11. On 5 January 2023, the High Court allowed the first respondent’s
amendment application. The High Court directed the Principal Secretary, Law and
Justice, Government of Uttar Pradesh to appear in-person along with the records
to “expedite the matter”. The High Court held:
7
“On specific query, the learned Standing Counsel submits
that the scheme pursuant to the direction of the Supreme
Court is already there and the amount is being duly paid
by the State Government. However, the quantum of
amount towards the benefits being granted to the retired
Judges has not been revised since then. It is submitted
that the matter for revision, if any, is to be considered at
the highest level.
Be that as it may, in order to expedite the matter, before
any further order is passed, it would be appropriate that
the Principal Secretary, Law and Justice, Government of
Uttar Pradesh, shall appear along with the records and
apprise the Court of the stand of the State Government in
the matter.
Amendment application is allowed. Learned counsel for
the petitioner to file an amended copy of the writ petition.”
(emphasis supplied)
12. When the writ petition was heard on 12 January 2023, the Principal
Secretary, Law and Justice, Government of Uttar Pradesh was present before the
High Court. Further, it was submitted before the High Court that the Rules
proposed by the Chief Justice were pending consideration, certain queries were
made to the High Court and the matter would be placed before the Cabinet for
approval. The High Court listed the case for 19 January 2023 and noted that “on
the said date, it is expected that the queries/clarification would be addressed by
the concerned committee.” (of the High Court).
13. On 19 January 2023, the counsel on behalf of the High Court submitted that
while the queries about the Rules were resolved by the High Court, the State
Government was raising queries in a piecemeal manner to keep the matter pending
for a long period. The Additional Advocate General submitted that the Rules involve
8
an amendment to the existing scheme and would be examined by the State
Government expeditiously.
14. On the next date, 23 March 2023, the High Court expressed its displeasure
about the delay by the State Government in notifying the Rules and revising the
post-retiral benefits granted to former judges of the High Court. The High Court
stated that it is “constrained to summon the Finance Secretary, Government of UP
and all the associated Officers dealing with the file along with the Principal
Secretary (Law), Government of UP to appear along with the records on the next
date fixed.”
15. On 4 April 2023, the High Court passed the First Impugned Order. As
directed, the Special Secretary, Finance and Principal Secretary, Law,
Government of Uttar Pradesh were present. The High Court noted the submission
by the Principal Secretary, Law that the matter was placed before the Finance
Department on six occasions, but approval was not accorded. On the other hand,
the Secretary, Finance submitted that the Rules are beyond the competence of the
Chief Justice and do not fall within the ambit of Article 229 of the Constitution. The
High Court observed that the objection with regard to the competence of the Chief
Justice was being raised for the first time before the High Court. The High Court
observed that:
“5. On perusal of the record with the assistance of the
learned Additional Advocate General, we do not find any
such objection which is being pressed before this Court.
In other words, the attitude of the officers of the Finance
Department is not only contemptuous, but at the same
time their stand/submission with regard to the competence
of the Hon'ble Chief Justice/ Article 229 is not reflected
from the record ”
9
16. The High Court further recorded the submissions of the counsel for the High
Court that the Finance Department was attempting to stall all the recommendations
of the High Court in the recent past and that the objections being raised by the
Finance Department should have been raised with the Law Department. The High
Court observed:
“ The audacity of the officers to raise the issue of
6. […]
competence of the Hon'ble Chief Justice, is not only
unbecoming of a civil servant, but at the same time
contemptuous. These objections are not available on
record, nor have it been brought to the notice of the
Law Department for legal advice. The Government
Order granting benefits to the retired Judges is already
in place, the proposal of the High Court merely seeks
to incorporate the same by amending, and/or, in
supercession of the earlier Government Order. Article
229 is unnecessarily being ·pressed with the sole
purpose of creating hindrance when there is none.
17. The High Court observed that the Rules were pursuant to the assurances
given by the State of Uttar Pradesh in P Ramakrishnan Raju (supra) and Justice
(supra). Further, the High Court recorded that the Secretary, Finance
V.S. Dave
conceded that the Rules could be notified by way of a Government Order amending
or superseding the Government Order dated 3 July 2018. The High Court relied on
this purported ‘no objection’ and directed as follows:
“22. Secretary, Finance, fairly states that the Finance
Department would have no objection in the event the
Government Order to that effect is issued incorporating
the proposals submitted by the High Court in the form of
Rules. He further submits that the Finance Department
does not have objections with regard to the financial
implications in according approval to the proposed
Rules/Guidelines.
…
25. Having regard to the categorical stand of the Principal
Secretary Law and Secretary Finance Department, the
following directions are issued:
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1. The Rules/Guidelines as proposed by the High Court
shall be notified by amending/incorporating/superceeding
the Government Order dated 3 July 2018, forthwith;
2. The Finance Department would accord approval within
a week thereafter;
3. The notification of the Government Order and the
approval, thereof, shall be placed on record on the date
fixed;
4. In the event the order is not complied, Additional Chief
Secretary, Finance and the officers present today shall
appear on the date fixed.”
(emphasis supplied)
18. The State of Uttar Pradesh filed a recall application before the High Court
on 19 April 2023 seeking a recall of the First Impugned Order on the grounds that:
a. The High Court did not have the power to pass the above directions;
b. The rules do not fall within the ambit of Article 229 of the Constitution;
c. The direction for the Rules to be notified and the Finance Department
to accord approval thereafter cannot be complied with as the
concurrence/advice of the Finance Department must be taken before
notifying the rules; and
d. Only the Parliament and the Union government are competent to frame
legislation/rules pertaining to post-retiral benefits for former judges of
the High Courts.
19. On 19 April 2023, the High Court passed the Second Impugned Order. The
High Court noted that the Additional Chief Secretary (Finance) was not present,
while the Secretary (Finance) and the Special Secretary (Finance), who also
appeared on the previous date, were present. The High Court noted that on the
11
date of the First Impugned Order, the officials of the Finance Department
categorically stated that they have “no objection” if the Government Order issued
in 2018 is modified or amended. The recall application, according to the High Court,
constituted “ex-facie criminal contempt”, as it did not indicate any valid reasons for
non-compliance with the First Impugned Order. The High Court held:
30. [..] From perusal of the entire affidavit, it is not clear
“
as to which part of the order the officers intend to recall,
rather, the prayer made therein is to recall the entire order,
but no reason has been assigned as to how the order is
obnoxious on the whole. In other words, the affidavit that
has been filed today is false, misleading and averments,
therein, constitute ex-facie criminal contempt.
31. On specific query, it is informed by the· officers present
in the Court, on perusal of the record, that pursuant to the
order dated 4 April 2023, the Chief Secretary had
convened a meeting of the officers on 13 April 2023. The
Advocate General had opined to comply the order.
Further, the office of the Law Department on 6 April 2023,
had forwarded the proposed Government
Order/amendment to confer benefits upon the retired
Judges for approval of the Finance Department. The
proposal is not to frame Rules under Article 229 of the
Constitution. These facts have been suppressed. As per
the stand of the officers, it is only after approval by the
Finance Department, submitted by the Law Department,
the matter would be placed before the Cabinet. In this
backdrop, affidavit is not only false but also misleading as
the affidavit does not disclose as to why the proposal
submitted by the Law Department was not approved or the
reason for not approving it, rather, frivolous issues have
been raised with regard to the procedure to be adopted
while notifying the Government Order or the issue of
Article 229 of the Constitution. Affidavit does not clarify as
to why the Government Order as proposed by the Law
Department was not approved by the Finance Department
till date. The approach of the officers of the Finance
Department is writ large, that the proposal submitted by
the High Court, would not be complied and in
their overzealous approach and adamant attitude are
opposing compliance of the writ court order without any
valid basis.
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32. In the circumstances, having regard to the averments
made in the affidavit and the conduct of the officers
suppressing material facts and misleading the Court,
prima facie, have committed criminal contempt of the
Court.”
(emphasis supplied)
20. The High Court directed that the officials present in the court, the Secretary
(Finance) and the Special Secretary (Finance) be taken into custody and produced
before the Court on the next day for framing of charges. Further, the Court issued
bailable warrants against the Chief Secretary and the Additional Chief Secretary
(Finance) to ensure their presence before the Court on the next day.
21. The above Orders dated 4 April 2023 and 19 April 2023 have been
challenged by the State of Uttar Pradesh by the present appeal. By an interim order
dated 20 April 2023, this Court stayed the operation of the Impugned Orders and
the officials of the Government of Uttar Pradesh, who were taken into custody were
directed to be released. This Court directed:
4 Till the next date of listing, there shall be a stay" of
“
the operation of the orders of the Division Bench of the
High Court of Judicature at Allahabad dated 4 April
2023 and 19 April 2023.
5 The officers of the Government of Uttar Pradesh, who
have been taken into custody, shall be released
forthwith
6 The Registrar (Judicial) of this Court shall
communicate the order of this Court both telephonically
and on the email to the Registrar General of the High
Court of Judicature at Allahabad for immediate
compliance.”
22. We have heard Mr Tushar Mehta, Solicitor General with Mr K.M. Natraj,
Additional Solicitor General appearing on behalf of the Union of India, Mr Nishit
13
Agrawal, counsel appearing on behalf of the Association of Retired Supreme Court
and High Court Judges at Allahabad and Ms Preetika Dwivedi, counsel appearing
on behalf of the High Court of Judicature at Allahabad on the administrative side.
23. Having heard the rival submissions advanced by the parties and examined
the record, the following broad points of law arise for our consideration:
(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.
II. The High Court did not have the power to direct the notification
of the Rules proposed by the Chief Justice
24. The preamble to the Rules proposed by the Chief Justice expressly states
that the Rules have been made pursuant to Article 229 of the Constitution. Article
229 pertains to ‘officers and servants’ of the High Courts. Article 229(2) provides
that the conditions of service of officers and servants of the High Court shall be as
may be prescribed by rules made by the Chief Justice of the High Court or any
14
other Judge or officer authorized by the Chief Justice for the purpose. The proviso
to the Article mandates that the rules made under Article 229(2) require the
approval of the Governor of the State, in so far as they relate to salaries,
allowances, leave or pensions. The provision reads as follows:
229. Officers and servants and the expenses of
High Courts. — (1) Appointments of officers and
servants of a High Court shall be made by the Chief
Justice of the Court or such other Judge or officer of
the Court as he may direct:
Provided that the Governor of the State may by rule
require that in such cases as may be specified in the
rule no person not already attached to the Court shall
be appointed to any office connected with the Court
save after consultation with the State Public Service
Commission.
(2) Subject to the provisions of any law made by the
Legislature of the State, the conditions of service of
officers and servants of a High Court shall be such as
may be prescribed by rules made by the Chief Justice
of the Court or by some other Judge or officer of the
Court authorised by the Chief Justice to make rules for
the purpose:
Provided that the rules made under this clause shall,
so far as they relate to salaries, allowances, leave or
pensions, require the approval of the Governor of the
State.
(3) The administrative expenses of a High Court,
including all salaries, allowances and pensions payable
to or in respect of the officers and servants of the Court,
shall be charged upon the Consolidated Fund of the
State, and any fees or other moneys taken by the Court
shall form part of that Fund
(Emphasis Supplied)
25. 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
15
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.
26. 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. In the Impugned Orders, the High Court
merely adverts to the judgements of this Court in P Ramakrishnan Raju (supra)
and (supra) to justify the imposition of the Rules on the state
Justice V.S. Dave
government.
27. In our considered opinion, the reliance on the 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. As stated above, this
Court in (supra) appreciated the scheme in Andhra
P Ramakrishnan Raju
Pradesh and observed that the Court “hopes and trusts that the States who have
not so far framed such scheme will formulate the same, depending on the local
conditions”. Further, in (supra) the Court closed the contempt
Justice V.S. Dave ,
proceedings against the State of Uttar Pradesh noting that the state had already
framed a scheme for post-retiral benefits. The Court held that slight variations from
the scheme adopted in Andhra Pradesh were permissible and flexibility was
16
contemplated in P Ramakrishnan Raju (supra) for states to frame their respective
schemes. Further, the court directed that “states where the allowances paid are
lesser than the State of Andhra Pradesh, shall consider the necessity of an upward
revision of such allowances at the appropriate stage and time.”
28. There is no iota of doubt that in the above judgements, this Court directed
the state governments to frame schemes for post-retiral benefits. The above
judgements of this Court did not grant the Chief Justices of High Courts, acting on
the administrative side, the power to frame rules about post-retiral benefits for
former judges that must mandatorily be notified by the State Governments. Further,
the Court recognized the need for flexibility and granted state governments the
leeway to duly account for local conditions.
29. Further, the High Court’s conduct on the judicial side in the Impugned Orders
was also erroneous. The High Court, acting under Article 226 of the Constitution,
cannot usurp the functions of the executive and compel the executive to exercise
its rule-making power in the manner directed by it. Compelling the State
Government to mandatorily notify the Rules by the next date of hearing, in the First
Impugned Order, virtually amounted to the High Court issuing a writ of mandamus
to notify the Rules proposed by the Chief Justice. Such directions by the High Court
are impermissible and contrary to the separation of powers envisaged by the
Constitution. The High Court cannot direct the State Government to enact rules on
a particular subject, by a writ of mandamus or otherwise.
17
30. The High Court, acting on the judicial side, could not compel the State
Government to notify Rules proposed by the Chief Justice in the purported exercise
of his administrative powers. Policymaking by the government envisages various
steps and the consideration of various factors, including local conditions, financial
considerations, and approval from various departments. The High Court cannot
use its judicial powers to browbeat the State Government to notify the Rules
proposed by the Chief Justice. As the Rules were promulgated by the Chief Justice
without competence, at best, they amounted to inputs to the State Government.
The State Government was free to constructively consider the desirability of the
Rules within its own decision-making apparatus. Therefore, the High Court acted
beyond its jurisdiction under Article 226 by frequently summoning officers to
expedite the consideration of the Rules and issuing directions to notify the Rules
by a fixed date, under the threat of criminal contempt.
III. Criminal Contempt cannot be initiated against a party for availing legal
remedies and raising a legal challenge to an order
31. The Contempt of Courts Act, 1971 defines ‘civil contempt’ and ‘criminal
contempt’ in the following terms:
In this Act, unless the context
2. Definitions. —
otherwise requires, —
[...]
(b) “civil contempt” means wilful disobedience to any
judgment, decree, direction, order, writ or other
process of a court or wilful breach of an undertaking
given to a court;
(c) “criminal contempt” means the publication (whether
by words, spoken or written, or by signs, or by visible
representations, or otherwise) of any matter or the
doing of any other act whatsoever which—
18
(i) scandalises or tends to scandalise, or lowers or
tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with,
the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs
or tends to obstruct, the administration of justice in
any other manner;
32. The Act makes a clear distinction between two types of contempt. ‘Wilful
disobedience’ of a judgement, decree, direction, order, writ, or process of a court
or wilful breach of an undertaking given to a court amounts to ‘civil contempt’. On
the other hand, the threshold for ‘criminal contempt’ is higher and more stringent.
It involves ‘scandalising’ or ‘lowering’ the authority of any court; prejudicing or
interfering with judicial proceedings; or interfering with or obstructing the
administration of justice.
33. In the second Impugned Order, the High Court held that the actions of the
officials of the Government of Uttar Pradesh constituted criminal contempt as there
was no “valid reason” to not comply with the earlier Order. Even if the High Court’s
assessment is assumed to be correct, non-compliance with the First Impugned
Order could at most, constitute civil contempt. The High Court failed to give any
reasoning for how the purported non-compliance with the First Impugned Order
was of the nature to meet the standard of criminal contempt. The High Court acted
in haste by invoking criminal contempt against the officials of the Government of
Uttar Pradesh and directing for them to be taken into custody.
34. In our considered opinion, however, even the standard for civil contempt
was not met in the facts of the present case. In a consistent line of precedent, this
Court has held that while initiating proceedings of contempt of court, the court must
19
act with great circumspection. It is only when there is a clear case of contemptuous
conduct that the alleged contemnor must be punished. The power of the High
Courts to initiate contempt proceedings cannot be used to obstruct parties or their
counsel from availing legal remedies.
35. In the present case, the State of Uttar Pradesh was availing its legitimate
remedy of filing a recall application. From a perusal of the record, it appears that
the application was filed in a bona fide manner. Not only had the Finance
Department raised its concerns regarding the competence of the Chief Justice
before the High Court but its previous conduct, including file notings of the
department and letters to the Central Government, indicate that this objection had
been raised by them in the past. The legal position taken by the Government in the
recall application was evidently based on their desire to avail their legal remedy
and not to willfully disobey the First Impugned Order.
36. The objections raised by the Government of Uttar Pradesh with regard to
legal obstacles in complying with the First Impugned Order were never adjudicated
by the High Court. Instead, the High Court regarded the objection as an attempt to
obstruct justice, without even a cursory attempt to provide reasons. Applying the
standards delineated above, it is clear that the actions of the government of Uttar
Pradesh did not constitute even ‘civil contempt’ let alone ‘criminal contempt’. The
circumstances most definitely did not warrant the High Court acting in haste, by
directing that the officials present before the court be taken into custody. This
summary procedure, although, permitted under Section 14 of the Contempt of
20
Courts Act cannot be invoked as a matter of routine and is reserved for only
extraordinary circumstances.
37. Such summary procedure, as has been held by this Court, in Leila David v.
8
can only be invoked in exceptional cases, such as
State of Maharashtra,
instances where:
"36. ….after being given an opportunity to explain their
conduct, not only have the contemnors shown no
remorse for their unseemly behavior, but they have
gone even further by filing a fresh writ petition in which
apart from repeating the scandalous remarks made
earlier, certain new dimensions in the use of unseemly
and intemperate language have been resorted to
further denigrate and scandalize and overawe the
Court. This is one of such cases where no leniency can
be shown as the contemnors have taken the liberal
attitude shown to them by the Court as license for
indulging in indecorous behavior and making
scandalous allegations not only against the judiciary
but those holding the highest positions in the country."
No such situation prevailed in the present case. Therefore, the invocation of
criminal contempt and taking the government officials into custody was not
warranted.
IV. Summoning of Government Officials before Courts
38. Before concluding, we must note the conduct of the High Court in frequently
summoning officials of the Government of Uttar Pradesh. 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 use of the power to summon the presence of government
8
(2009) 10 SCC 337
21
officials must not be used as a tool to pressurize the government, particularly,
under the threat of contempt.
39. The Court must also refrain from relying on mere undertakings by
government officials in court, without consent on affidavit or instructions to law
officers such as the Attorney General, Solicitor General, or the Advocate Generals
of the states. Courts must be cognizant of the role of law officers before
summoning the physical presence of government officials.
40. Under Article 76 of the Constitution, the Attorney General is appointed by
the President and serves in an advisory capacity, providing legal counsel to the
Union Government. The responsibilities of the Attorney General include advising
on legal matters, performing assigned legal duties, and representing the
government in various courts. Similarly, under Article 165 of the Constitution, the
Advocate General is appointed by the Governor of each state. The Advocate
General provides legal advice to the state government, performs legal duties as
assigned, and discharges functions conferred by the Constitution. Several other
law officers also represent the Union and the states including the Solicitor General,
Additional Solicitor General, and Additional Advocates General for the states. They
inter alia obtain instructions from the various departments of the government and
represent the government before the courts.
41. Law officers act as the primary point of contact between the courts and the
government. They not only represent the government as an institution but also
represent the various departments and officials that comprise the government. This
22
9
Court in Mohd. Iqbal Khandaly v. Abdul Majid Rather , had occasion to observe
that there was no justification to direct the Additional Advocate General, not to
appear for the appellant in a contempt petition and to direct that he should merely
assist the court.
42. 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.
10
43. This Court in State of Uttar Pradesh v. Manoj Kumar Sharma, frowned
upon the frequent summoning of government officials “at the drop of a hat”. This
Court held:
" 17. A practice has developed in certain High Courts to
call officers at the drop of a hat and to exert direct or
indirect pressure. The line of separation of powers
between Judiciary and Executive is sought to be
crossed by summoning the officers and in a way
pressurizing them to pass an order as per the whims
and fancies of the Court.
9
(1994) 4 SCC 34.
10
(2021) 7 SCC 806.
23
18. The public officers of the Executive are also
performing their duties as the third limbs of the
governance. The actions or decisions by the officers
are not to benefit them, but as a custodian of public
funds and in the interest of administration, some
decisions are bound to be taken. It is always open to
the High Court to set aside the decision which does not
meet the test of judicial review, but summoning officers
frequently is not appreciable at all. The same is liable
to be condemned in the strongest words.
…
21. Thus, we feel, it is time to reiterate that public
officers should not be called to court unnecessarily.
The dignity and majesty of the court is not enhanced
when an officer is called to court. Respect to the court
has to be commanded and not demanded and the
same is not enhanced by calling the public officers. The
presence of public officer comes at the cost of other
official engagement demanding their attention.
Sometimes, the officers even have to travel long
distance. Therefore, summoning of the officer is
against the public interest as many important tasks
entrusted to him get delayed, creating extra burden on
the officer or delaying the decisions awaiting his
opinion. The court proceedings also take time, as there
is no mechanism of fixed time hearing in courts as of
now. The courts have the power of pen which is more
effective than the presence of an officer in court. If any
particular issue arises for consideration before the
court and the advocate representing the State is not
able to answer, it is advised to write such doubt in the
order and give time to the State or its officers to
respond. ”
(emphasis supplied)
44. 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
24
officials of the government instead of relying on the law officers representing the
government, runs contrary to the scheme envisaged by the Constitution.
45. 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
25
Procedure, 1908, or Criminal Procedure Code 1973, govern
these proceedings.
b. These proceedings, often called
Summary Proceedings:
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.
26
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 The court should, to the extent possible,
Scheduled Time Slot:
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
27
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.
28
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 In a proceeding instituted
Preliminary Determination of Contempt:
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 In cases requiring
Procedure when personal presence is directed:
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
29
extension or stay before the issuing court or the relevant
appellate/higher court.
46. 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
30
framing rules to regulate the appearance of Government officials in court,
after taking into account the SOP which has been formulated above.
47. 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.
48. The Registry is directed to communicate the judgment to the Registrar
General of every High Court.
49. Pending applications, if any, stand disposed of.
…..…..…....…........……………….…........CJI.
[Dr Dhananjaya Y Chandrachud]
……..…..…....…........……………….…........J.
[J B Pardiwala]
.…....…..…....…........……………….…........J.
[Manoj Misra]
New Delhi;
January 03, 2024
31