It is common knowledge that sometimes the Government officials deliberately do not follow the directions of the High Courts or purposely do not furnish the requisite details as ordered by the High Court. In such a peculiar situation, the Courts often order the personal presence of the erring officers to overcome the legal impasse and to do complete justice in the case.

However, the Supreme Court has in a catena of cases deprecated the practice of calling officers by the High Courts except when it is absolutely necessary and has laid down a Standard Operating Procedure (SOP) for the same. But do the same tantamount to restricting/curtailing the powers of the High Court and make the executive arbitrary & less accountable is the matter of the present deliberation.

It is noteworthy that the Apex Court in State of Gujarat vs. Turabali Gulamhussain Hirani 2007 (14) SCC 94 criticised such tendency of the High Court & observed that it should be done in exceptional circumstances. The Court held thus:

6. A large number of cases have come up before this Court where we find that learned Judges of various High Courts have been summoning the Chief Secretary, Secretaries to the government (Central and State), Director Generals of Police, Director, CBI or BSF or other senior officials of the government.

7. There is no doubt that the High Court has power to summon these officials, but in our opinion that should be done in very rare and exceptional cases when there are compelling circumstances to do so. Such summoning orders should not be passed lightly or as a routine or at the drop of a hat.

8. Judges should have modesty and humility. They should realize that summoning a senior official, except in some very rare and exceptional situation, and that too for compelling reasons, is counter productive and may also involve heavy expenses and valuable time of the official concerned.

9. The judiciary must have respect for the executive and the legislature. Judges should realize that officials like the Chief Secretary, Secretary to the government, Commissioners, District Magistrates, senior police officials etc. are extremely busy persons who are often working from morning till night. No doubt, the ministers lay down the policy, but the actual implementation of the policy and day to day running of the government has to be done by the bureaucrats, and hence the bureaucrats are often working round the clock.

If they are summoned by the Court they will, of course, appear before the Court, but then a lot of public money and time may be unnecessarily wasted. Sometimes High Court Judges summon high officials in far off places like Director, CBI or Home Secretary to the Government of India not realizing that it entails heavy expenditure like arranging of a BSF aircraft, coupled with public money and valuable time which would have been otherwise spent on public welfare.

10. Hence, frequent, casual and lackadaisical summoning of high officials by the Court cannot be appreciated. We are constrained to make these observations because we are coming across a large number of cases where such orders summoning of high officials are being passed by the High Courts and often it is nothing but for the ego satisfaction of the learned Judge.

11. We do not mean to say that in no circumstances and on no occasion should an official be summoned by the Court. In some extreme and compelling situation that may be done, but on such occasions also the senior official must be given proper respect by the Court and he should not be humiliated. Such senior officials need not be made to stand all the time when the hearing is going on, and they can be offered a chair by the Court to sit. They need to stand only when answering or making a statement in the Court. The senior officials too have their self-respect, and if the Court gives them respect they in turn will respect the Court. Respect begets respect.

12. It sometimes happens that a senior official may not even know about the order of the High Court. For example, if the High Court stays the order of the Collector of suspension of a class-III or class IV employee in a government department, and certified copy of that order is left with the Clerk in the office of the Collector, it often happens that the Collector is not even aware of the order as he has gone on tour and he may come to know about it only after a few days.

In the meantime a contempt of court notice is issued against him by the Court summoning him to be personally present in Court. In our opinion, this should not be readily done, because there is no reason why the Collector would not obey the order of the High Court.

In such circumstances, the Court should only request the government counsel to inform the concerned Collector about the earlier order of the Court which may not have been brought to the notice of the Collector concerned, and the High Court can again list the case after a week or two. Almost invariably it will be found that as soon as the Collector comes to know about the stay order of the High Court, he orders compliance of it."

It would be apropos to refer to the case of Divisional Manager, Aravali Golf Club & Anr. v. Chander Hass & Anr.(2008) 1 SCC 683, wherein the Apex Court warned the judges not to encroach the domain of the executive. The Court summed up thus:

19. Under our Constitution, the legislature, the executive and the judiciary all have their own broad spheres of operation. Ordinarily it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction.

20. Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like emperors. There is broad separation of powers under the Constitution and each organ of the State the legislature, the executive and the judiciary—must have respect for the other and must not encroach into each other's domains.

21. The theory of separation of powers first propounded by the French thinker Montesquieu (in his book The Spirit of Laws) broadly holds the field in India too. In Chapter XI of his book The Spirit of Laws Montesquieu writes:
When the legislative and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty, if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.

It would be trite to refer to Apex Court judgment in the case of the State of U.P. & Ors. v. Jasvir Singh & Ors. (2011) 4 SCC 288 wherein it was observed that the trust, faith and confidence of the common man in the judiciary cannot be frittered away by unnecessary and unwarranted show or exercise of power. The Court observed thus:

7. It is a matter of concern that there is a growing trend among a few Judges of the High Court to routinely and frequently require the presence, in court, of senior officers of the government and local and other authorities, including officers of the level of Secretaries, for perceived non-compliance with its suggestions or to seek insignificant clarifications.

The power of the High Court under Article 226 is no doubt very wide. It can issue to any person or authority or government, directions, orders, writs for enforcement of fundamental rights or for any other purpose. The High Court has the power to summon or require the personal presence of any officer, to assist the court to render justice or arrive at a proper decision. But there are well settled norms and procedures for exercise of such power.

8. This court has repeatedly noticed that the real power of courts is not in passing decrees and orders, nor in punishing offenders and contemnors, nor in summoning the presence of senior officers, but in the trust, faith and confidence of the common man in the judiciary. Such trust and confidence should not be frittered away by unnecessary and unwarranted show or exercise of power.

Greater the power, greater should be the responsibility in exercising such power. The normal procedure in writ petitions is to hear the parties through their counsel who are instructed in the matter, and decide them by examining the leadings/affidavit/evidence/documents/material. Where the court seeks any information about the compliance with any of its directions, it is furnished by affidavits or reports supported by relevant documents.

Requiring the presence of the senior officers of the government in court should be as a last resort, in rare and exceptional cases, where such presence is absolutely necessary, as for example, where it is necessary to seek assistance in explaining complex policy or technical issues, which the counsel is not able to explain properly. The court may also require personal attendance of the officers, where it finds that any officer is deliberately or with ulterior motives withholding any specific information required by the court which he is legally bound to provide or has misrepresented or suppressed the correct position.

9. Where the State has a definite policy or taken a specific stand and that has been clearly explained by way of affidavit, the court should not attempt to impose a contrary view by way of suggestions or proposals for settlement. A court can of course express its views and issue directions through its reasoned orders, subject to limitations in regard to interference in matters of policy. But it should not, and in fact, it cannot attempt to impose its views by asking an unwilling party to settle on the terms suggested by it.

At all events the courts should avoid directing the senior officers to be present in court to settle the grievances of individual litigants for whom the court may have sympathy. The court should realize that the state has its own priorities, policies and compulsions which may result in a particular stand. Merely because the court does not like such a stand, it cannot summon or call the senior officers time and again to court or issue threatening show cause notices.

The senior officers of the government are in-charge of the administration of the State, have their own busy schedules. The court should desist from calling them for all and sundry matters, as that would amount to abuse of judicial power. Courts should guard against such transgressions in the exercise of power. Our above observations do not of course apply to summoning of contemnors in contempt jurisdiction.

10. We have made the above observations rather reluctantly. Our observations should not be construed as restricting or limiting the exercise of the extraordinary jurisdiction of High Courts under Article 226 of the Constitution of India. The observations are intended to be guidance for self- regulation and self-restriction by courts. It became necessary as we have noticed that the learned Presiding Judge of the Bench has been frequently making such orders directing senior officers of the Government to be present and settle claims.

It is a coincidence that another case where a similar procedure was adopted by the learned Presiding Judge of the bench, came up before us today - Lake Development Authority, Nainital vs. Heena Khan (CA No.10087-10090 of 2010 decided on 26.11.2010). We have no doubt that the learned Judge bona fide believes that by requiring the presence of senior officers, he could expedite matters and render effective justice. But it is not sufficient that the object of the Judge is noble or bonafide. The process of achieving the object should be just and proper, without exceeding the well recognised norms of judicial propriety."

Further the Apex Court in the case of R.S. Singh v. U.P. Malaria Nirikshank Sangh & Ors. (2011) 4 SCC 281 disapproved the frequent, causal and lackadaisical summoning of high officials by the Court. However the Court clarified that it does not mean that in compelling situations the same cannot be done but the object must not be to humiliate senior officials. The Court made it clear that during contempt proceedings if the order is not complied with, presence of such officer can be directed to meet the interests of justice. The Court observed thus:

We are pained to observe that despite our decision in State of Gujarat vs. Turabali Gulamhussain Hirani (supra) many High Courts are persisting in summoning executive officials where it was not absolutely necessary to summon them. It is possible that our judgment in the aforesaid decision has not been brought to the notice of the Hon'ble Judges in many of the High Courts and it may also be that the subsequent decision of this Court in State of U.P. vs. Jasvir Singh (supra) has not been brought to their notice. Consequently we are coming across many orders where High Court Judges are summoning executive officials routinely, casually, and sometimes even at the drop of a hat. This is most improper.

We are constrained to make these observations because we are repeatedly coming across a large number of cases where such orders summoning high officials are being passed by the High Courts and often it is only for the ego satisfaction of the learned Judge. Judges should not have any ego problems. In particular, members of the higher judiciary (High Court and Supreme Court) should have great modesty and humility. This is because the higher one moves in the hierarchy the greater become his powers.

Hence, unless one has modesty and humility, he may play havoc. High Court Judges have tremendous powers, but the beauty lies in not exercising those powers except where absolutely necessary. Flaunting these powers unnecessarily only brings the judiciary into disrepute. Some of the greatest Judges have been the most modest, e.g., Justice Holmes, Judge Learned Hand, Justice Brandeis, Justice Cardozo, Lord Atkins, Lord Denning, Justice Venkatachaliah, etc.

At the same time, we make it clear that we have also come across cases where orders of the Courts are deliberately ignored by government officials which is not proper. Democracy and the rule of law requires that the orders of the Courts should be complied with by the executive authorities promptly and with due diligence. If the executive authorities are dissatisfied with a High Court order, they may appeal against that order to the Supreme court but it is not proper to ignore such orders.

In our opinion, if the High Court finds that its order has not been complied with, it shall first see whether the order can be complied with without summoning any official and for that purpose it can ask the Advocate General, Additional Advocate General or Chief Standing Counsel or some other counsel of the State to communicate to the concerned official that there is some order of the Court which has not been complied with.

Ordinarily, this will suffice because we see no reason as to why the executive authorities will not comply with the orders of the court. It is only in some extreme case where the High Court is convinced that deliberately the order of the court has been ignored in a spirit of defiance that it may summon the official to explain why the order of the court has not been complied with.

The system functions on mutual respect between the judiciary and the executive. While the judiciary must respect the executive, at the same time, the executive must also respect the judiciary. If we do not respect each other, the system will collapse."

It would be worthwhile to refer to State of U.P. v. Manoj Kumar Sharma, (2021) 7 SCC 806 wherein the Apex Court following the precedents reiterated the aforesaid dictum thus:

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 of officers frequently is not appreciable at all. The same is liable to be condemned in the strongest words.
......
20. 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 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 gets 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."

More recently in the case of The State of Uttar Pradesh & Ors. Versus Association of Retired Supreme Court and High Court Judges at Allahabad & Ors. 2024 INSC 4 decided on 3 January, 2024 a 3 member bench of the Apex Court dealt with the issue in hand and issued Standard Operating Procedure (SOP) in this regard. It would be trite to reproduce the same for ready reference:

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.

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.

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. .......

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. Based on the nature of the evidence taken on record, proceedings may broadly be classified into three categories:
      1. 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.
      2. 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.
      3. 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.
          
   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.
   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.
   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:
   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. 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.
   3. When the personal presence of an official is directed, reasons should be recorded as to why such presence is required.
   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:
   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.
   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. During the course of proceedings, oral remarks with the potential to humiliate the official should be avoided.
   4. The court must refrain from making comments on the physical appearance, educational background, or social standing of the official appearing before it.
   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:
   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.
   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:
   1. The court should exercise caution and restraint when initiating contempt proceedings, ensuring a judicious and fair process.
       
   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.
       
   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.
       
   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. 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.
       
   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.
       
6. In a nutshell, the conclusions reached in this Judgement are as follows:
   1. 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.
   2. 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'.
   3. 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.
   4. 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.

Conclusion:
The High Court undoubtedly has wide powers to do justice under Article 226 of the Constitution. The powers certainly include power to summon erring government officials but as per the dictum of the Apex Court this should be done in very rare and exceptional cases only under compelling circumstances and not in a routine manner.

The Apex Court has mandated that the Senior officials should be given a time slot and the importance of their time should be taken care of. It is also important that they should not be rebuked publicly for trivial errors. Moreover, personal affidavits of the officers should be asked for in place of personal appearance. The Court also directed for using Video Conferencing (VC) in place of personal appearance to save time & public money.

However, the said SOP or the Judgments of the Apex Court should not be misunderstood to mean that the High Courts have no power to summon officials. These judgments & SOP only direct that the practice of summoning officials should be used sparingly only when it is indispensable for dispensing Justice. It will all depend on the individual facts & circumstances of the case.

These judgments also spell out that they are not applicable in Contempt Proceedings where depending on the magnitude of Contempt, the contemnor official can very well be summoned.

Lastly, with due respect to the Apex Court, issuance of generalised SOP seem to curtail the powers of the High Court. The High Court is a very powerful Constitutional Functionality and Judicial Independence is sine qua non for its functioning. The discretions & powers of the High Court should not be abridged & curtailed in the name of SOP. The wide powers of the High Court under Article 226 should not be fettered by imposing objective standard procedures in place of subjective self imposed discretions.

Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]