The State of Uttar Pradesh & Ors. v. Association of Retired

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.

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 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 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 – 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] 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 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 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.