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; whether the power of criminal contempt could be invoked by the High Court against officials of the State Government on the ground that the application for recall was ‘contemptuous’; and as regards the broad guidelines to guide courts when they direct the presence of government officials before the court.
* Author
[2024] 1 S.C.R. 211 : 2024 INSC 4
Case Details
The State of Uttar Pradesh & Ors.
v.
Association of Retired Supreme Court and High Court
Judges at Allahabad & Ors.
(Civil Appeal Nos 23-24 of 2024)
03 January 2024
[Dr Dhananjaya Y Chandrachud*, CJI, J B Pardiwala
and Manoj Misra, JJ.]
Issue for Consideration
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; whether
the power of criminal contempt could be invoked by the High Court
against officials of the State Government on the ground that the
application for recall was ‘contemptuous’; and as regards the
broad guidelines to guide courts when they direct the presence
of government officials before the court.
Headnotes
Constitution of India – Arts 226, 229 – Summoning of
government officials – Invocation of criminal contempt –
Writ petition by the first respondent-Association seeking
an increase in the allowance granted to former judges of
the High Court for domestic help and other expenses –
Issuance of direction by the High Court directing the State
Government 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 – Also directed the
certain officials to be present before the court on the next
date if the order was not complied with – Application filed
by the State seeking recall of the aforesaid Order – High
Court held that the recall application was ‘contemptuous’
and initiated criminal contempt proceedings against various
officials of the Government – Also the officials present in
the court, including the Secretary (Finance) and Special
Secretary (Finance) taken into custody and bailable warrants
212 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
issued against Chief Secretary and Additional Chief Secretary
(Finance) – Correctness:
Held: 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 – 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’ – Conduct of the High
Court in frequently summoning government officials to exert
pressure on the government, under the threat of contempt,
is impermissible – Issuance of bailable warrants by the High
Court against officials, who was not even summoned in the
first place, indicates the attempt by the High Court to unduly
pressurise the government – Thus, both the Impugned Orders
set aside – Standard Operating Procedure (SOP) on personal
appearance of government officials in court proceedings framed
by this Court. [Paras 46, 47]
Constitution of India – Art. 229(2) – High Court directing the
State Government to notify the Rules proposed by the Chief
Justice pertaining to post-retiral benefits for former Judges
of the High Court – Correctness:
Held: 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 – Chief
Justice did not have the competence to frame the said rules u/Art.
229 – High Court, acting u/Art. 226, cannot usurp the functions
of the executive and compel the executive to exercise its rulemaking 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 – 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
– Thus, the High Court acted beyond its jurisdiction u/Art. 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. [Paras 25, 26, 28-30, 46a]
[2024] 1 S.C.R. 213
THE STATE OF UTTAR PRADESH & ORS. v. ASSOCIATION OF RETIRED
SUPREME COURT AND HIGH COURT JUDGES AT ALLAHABAD & ORS
Contempt of Courts Act, 1971 – Criminal Contempt – Initiation
of – Officials of the Government of Uttar Pradesh availing legal
remedies and raising a legal challenge to an order – Criminal
contempt invoked by the High Court against the officials on
the ground that the application for recall was ‘contemptuous’
– Correctness:
Held: 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’ – High Court acted in haste by invoking
criminal contempt and taking the government officials into custody
and the same was not warranted – Actions of the officials did not
meet the standard of both ‘criminal contempt’ and ‘civil contempt’
– In the second Impugned Order, the High Court held that the
actions of the officials of the State Government constituted
criminal contempt as there was no “valid reason” to not comply
with the earlier Order wherein the High Court directed the State
Government 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 High Court’ by the next date
of hearing – 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 – 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 – However, even the standard for civil contempt was not
met – While initiating proceedings of contempt of court, the court
must act with great circumspection – It is only when there is a
clear case of contemptuous conduct that the alleged contemnor
must be punished – Power of the High Courts to initiate contempt
proceedings cannot be used to obstruct parties or their counsel
from availing legal remedies. [Paras 33-36, 46 b]
Summons – Summoning of Government Officials before
Courts – Broad guidelines for the courts:
Held: 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 –
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
214 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
or the submissions of the government on affidavit, runs contrary
to the scheme envisaged by the Constitution – Courts must be
cognizant of the role of law officers before summoning the physical
presence of government officials – Law officers act as the primary
point of contact between the courts and the government – Instead
of adjudicating on the legal position taken by the State Government
on affidavit or hearing the Additional Advocate General present
in the court, the High Court repeatedly summoned government
officials – Government was also directed to notify the Rules – Such
situations can be avoided where submissions on affidavit can be
sought and the law officers of the Government are present in court,
with instructions – Courts must refrain from summoning officials as
the first resort – Thus, Standard Operating Procedure(SOP) framed
specifically addressing the appearance of Government Officials
before the courts. [Para 38, 39, 41, 42, 44, 45, 46c]
Practice and procedure – Personal Appearance of Government
Officials in Court Proceedings – Framing of Standard Operating
Procedure (SOP):
Held: SOP on personal appearance of government officials in court
proceedings 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
– SOP framed to be followed by all courts across the country – All
High Courts to consider framing rules to regulate the appearance
of Government officials in court, after taking into account the SOP
formulated. [Paras 45, 46d]
Constitution of India – Arts 76 and 165 – Law officers-Attorney
General for India and Advocate General for the State – Role of:
Held: U/Art. 76, the Attorney General is appointed by the President
and serves in an advisory capacity, providing legal counsel to the
Union Government – Similarly, u/Art. 165, the Advocate General
is appointed by the Governor of each state – 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 – Courts must be cognizant of
the role of law officers before summoning the physical presence
of government officials – Law officers act as the primary point of
contact between the courts and the government – They not only
[2024] 1 S.C.R. 215
THE STATE OF UTTAR PRADESH & ORS. v. ASSOCIATION OF RETIRED
SUPREME COURT AND HIGH COURT JUDGES AT ALLAHABAD & ORS
represent the government as an institution but also represent the
various departments and officials that comprise the government –
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. [Paras 40, 41, 44].
Contempt of Courts Act, 1971 – s. 2 – Civil contempt and
criminal Contempt – Distinction:
Held: ‘Wilful disobedience’ of a judgment, decree, direction, order,
writ, or process of a court or wilful breach of an undertaking given
to a court amounts to ‘civil contempt’ – Criminal contempt involves
‘scandalising’ or ‘lowering’ the authority of any court; prejudicing or
interfering with judicial proceedings; or interfering with or obstructing
the administration of justice. [Para 32]
List of Citations and Other References
P Ramakrishnan Raju vs. Union of India Writ Petition
(Civil) No. 521/2002; Justice V.S. Dave, President, the
Association of Retired Judges of Supreme Court and
High Courts vs. Kusumjit Sidhu and Others Contempt
Petition (Civil) Nos. 425-426 of 2015; Leila David v.
State of Maharashtra [2009] 15 SCR 317:(2009) 10 SCC
337; Mohd. Iqbal Khandaly v. Abdul Majid Rather [1994]
3 SCR 396:(1994) 4 SCC 34; State of Uttar Pradesh v.
Manoj Kumar Sharma (2021) 7 SCC 806 – referred to.
List of Acts
Constitution of India; Contempt of Courts Act, 1971
Keywords
Separation of powers; Criminal contempt jurisdiction; Summoning
government officials to court; recall application; Allowance granted
to former judges of the High Court for domestic help; Post retiral
benefits to former judges of the High Courts; Writ of mandamus;
Policymaking; Summoning; Civil Contempt; Criminal Contempt;
Law officers; Judicial review; Unwarranted remarks; Standard
Operating Procedure.
216 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
Other Case Details Including Impugned Order and
Appearances
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.23-24 of 2024.
From the Judgment and Order dated 04.04.2023 and 19.04.2023 in
WC No.38595 of 2011 of the High Court of Judicature at Allahabad.
Appearances:
Tushar Mehta, Solicitor General, K.M. Nataraj, A.S.G., Sharan Dev
Singh Thakur, A.A.G., Ms. Ruchira Goel, Siddharth Thakur, Adit J.
Shah, Mustafa Sajjad, Ms. Keerti Jaya, Prem Prakash, Ms. Deepali
Nanda, Nishit Agrawal, Ms. Kanishka Mittal, Ms. Vanya Agrawal,
Vatsal Joshi, Shlok Chandra, Akshit Pradhan, Raghav Sharma,
Arvind Kumar Sharma, Raj Bahadur Yadav, Mrs. Sunita Sharma,
Gaurav Agrawal, Ms. Preetika Dwivedi, Abhisek Mohanty, Advs. for
the appearing parties.
Judgment / Order of The Supreme Court
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..................................................................................15
III. Criminal Contempt cannot be initiated against a
party for availing legal remedies and raising a
legal challenge to an order................................................19
IV. Summoning of Government Officials before Courts...... 22
1. Leave granted.
2. The present appeals arise from two orders of the Division Bench of
the High Court of Judicature at Allahabad1
dated 4 April 2023 and
19 April 2023.2
The Impugned Orders have given rise to significant
1 “High Court”
2 “Impugned Orders”
* Ed Note: Pagination as per original Judgment.
[2024] 1 S.C.R. 217
THE STATE OF UTTAR PRADESH & ORS. v. ASSOCIATION OF RETIRED
SUPREME COURT AND HIGH COURT JUDGES AT ALLAHABAD & ORS
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).
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
3 “First Impugned Order”
4 “Second Impugned Order”
5 Writ Petition (Civil) No. 521/2002
218 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
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 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 Others6
, 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.
6 Contempt Petition (Civil) Nos. 425-426 of 2015.
[2024] 1 S.C.R. 219
THE STATE OF UTTAR PRADESH & ORS. v. ASSOCIATION OF RETIRED
SUPREME COURT AND HIGH COURT JUDGES AT ALLAHABAD & ORS
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)
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
7 “Rules”
220 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
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.
…
“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.
[2024] 1 S.C.R. 221
THE STATE OF UTTAR PRADESH & ORS. v. ASSOCIATION OF RETIRED
SUPREME COURT AND HIGH COURT JUDGES AT ALLAHABAD & ORS
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:
“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
an amendment to the existing scheme and would be examined by
the State Government expeditiously.
222 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
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”
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,
[2024] 1 S.C.R. 223
THE STATE OF UTTAR PRADESH & ORS. v. ASSOCIATION OF RETIRED
SUPREME COURT AND HIGH COURT JUDGES AT ALLAHABAD & ORS
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:
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)
224 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
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 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
[2024] 1 S.C.R. 225
THE STATE OF UTTAR PRADESH & ORS. v. ASSOCIATION OF RETIRED
SUPREME COURT AND HIGH COURT JUDGES AT ALLAHABAD & ORS
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.
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.
226 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
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 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.
[2024] 1 S.C.R. 227
THE STATE OF UTTAR PRADESH & ORS. v. ASSOCIATION OF RETIRED
SUPREME COURT AND HIGH COURT JUDGES AT ALLAHABAD & ORS
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 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
228 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
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 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 postretiral 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 contemplated
in P Ramakrishnan Raju (supra) for states to frame their respective
[2024] 1 S.C.R. 229
THE STATE OF UTTAR PRADESH & ORS. v. ASSOCIATION OF RETIRED
SUPREME COURT AND HIGH COURT JUDGES AT ALLAHABAD & ORS
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.
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
230 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
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—
(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
[2024] 1 S.C.R. 231
THE STATE OF UTTAR PRADESH & ORS. v. ASSOCIATION OF RETIRED
SUPREME COURT AND HIGH COURT JUDGES AT ALLAHABAD & ORS
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 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 Courts Act
cannot be invoked as a matter of routine and is reserved for only
extraordinary circumstances.
232 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
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 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.
8 (2009) 10 SCC 337
[2024] 1 S.C.R. 233
THE STATE OF UTTAR PRADESH & ORS. v. ASSOCIATION OF RETIRED
SUPREME COURT AND HIGH COURT JUDGES AT ALLAHABAD & ORS
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 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.
9 (1994) 4 SCC 34.
234 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
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.
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
10 (2021) 7 SCC 806.
[2024] 1 S.C.R. 235
THE STATE OF UTTAR PRADESH & ORS. v. ASSOCIATION OF RETIRED
SUPREME COURT AND HIGH COURT JUDGES AT ALLAHABAD & ORS
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 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:
236 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
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 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 nonadversarial 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.
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.
[2024] 1 S.C.R. 237
THE STATE OF UTTAR PRADESH & ORS. v. ASSOCIATION OF RETIRED
SUPREME COURT AND HIGH COURT JUDGES AT ALLAHABAD & ORS
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 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.
238 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
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.
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.
[2024] 1 S.C.R. 239
THE STATE OF UTTAR PRADESH & ORS. v. ASSOCIATION OF RETIRED
SUPREME COURT AND HIGH COURT JUDGES AT ALLAHABAD & ORS
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 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 framing rules to regulate the
appearance of Government officials in court, after taking into
account the SOP which has been formulated above.
240 [2024] 1 S.C.R.
DIGITAL SUPREME COURT REPORTS
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.
Headnotes prepared by: Nidhi Jain Result of the case: Appeals
disposed of.
