The State of Uttar Pradesh & Ors. vs Association of Retired Supreme Court and High Court Judges at Allahabad & Ors.

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 JUDGMENT

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

Court of Judicature at Allahabad 1 dated 4 April 2023 and 19 April 2023. 2 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. By its order dated 4 April 2023, 3 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

complying with the directions of the High Court. By its order dated 19 April 2023, 4

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

of this Court in P Ramakrishnan Raju vs. Union of India,5 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

Courts vs. Kusumjit Sidhu and Others 6, 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

Former Judges of Allahabad High Court’. 7 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.

7. Contractual appointment: The engagement of a 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:

“6. […] The audacity of the officers to raise the issue of 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

V.S. Dave (supra). Further, the High Court recorded that the Secretary, Finance

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:

10 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.

12

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 Justice V.S. Dave (supra) to justify the imposition of the Rules on the state

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 P Ramakrishnan Raju (supra) appreciated the scheme in Andhra

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 Justice V.S. Dave (supra), the Court closed the contempt

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:

2. Definitions. — In this Act, unless the context 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.

State of Maharashtra, 8 can only be invoked in exceptional cases, such as

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 Court in Mohd. Iqbal Khandaly v. Abdul Majid Rather,9 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.

43. This Court in State of Uttar Pradesh v. Manoj Kumar Sharma, 10 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. 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.

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 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

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 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

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

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