Will Lay Down Guidelines For Courts To Summon Government Officers: Supreme Court

The Supreme Court on Monday orally remarked that it would lay down guidelines pertaining to appearance of Government officials before courts in litigation that involves the Government. The bench comprising CJI DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra was hearing a plea challenging the order of the Allahabad High Court which took into custody Special Secretary (Finance) and Secretary (Finance) of the Uttar Pradesh government over the non-compliance of directions to provide domestic help and other facilities for retired judges. The Apex Court had earlier directed the immediate release of the officers who were taken into custody and stayed the order.

Today, the Solicitor General of India Tushar Mehta requested the court to frame guidelines for the appearance of Government officials before courts in litigation that involves the Government. He underlined that the Centre had come out with a proposed draft Standard Operating Procedure (SOP) for the same.

At the outset, the CJI orally remarked–

"We have seen the SOP. Some part of the SOP is more on how judicial review should be exercised."

To this comment, SG Mehta stated that the court was not expected to accept all guidelines mentioned in the draft SOP. 

For context, the SOP suggests that before initiating contempt proceedings, the plea for review on behalf of government must be considered by higher courts, if it is pointed out that certain points of law were not considered during adjudication. In this regard, SG stated–

"Obviously this is the discretion of every court. Review means the challenge. What they mean is appeal or other proceedings before the higher court...which cannot be." 

The SOP also proposes that in cases where a review petition has been admitted against a contempt order of a lower court, the lower court should take cognizance of the same and not initiate any related contempt proceedings in the said matter. Further, it suggests that judges should not adjudicate contempt proceedings relating to their own orders, relying on the legal maxim that no judge can be a judge in their own cause. It adds that in case of criminal contempt, courts should punish officials only if the act was ‘willful’. Additionally, compliance in matters in the executive domain must not be insisted upon by courts and contempt would not lie against such orders. 

Referring to the SOP, the SG added–

"I am only referring to the positive suggestions. I understand what is falling from your lordships. How to exercise the power of the bench can never be a subject of an SOP."

The SOP also stated that the presence of government officials should be required in courts only in ‘exceptional cases’, and not as a regular practice. If officials are summoned by courts, advanced notice must be given, allowing ample time for their appearance. Also, first option must be given to the officer to appear virtually. The SOP further asks courts to refrain from commenting on the dress/physical appearance/educational and social background of the government official appearing in Court. Referring to this, thhe SG remarked–

"There are some orders where only the Chief Secretary is summoned. It's not a matter of ego but the joint secretary who is handling the matter can also come. It is always more effective if the person dealing with the file comes. There are some genuine suggestions here (in the draft SOP)."

The bench, intent on closing the matter, said–

"We will lay down some guidelines for summoning of government officers. There must be bifurcation of matters pending and the ones in which adjudication is complete. For pending (matters), summoning officers is not needed but once adjudication is complete then contempt steps in".