Notes Raw Data

The appeals arose from orders of the Allahabad High Court, with the issue revolving around separation of powers, exercise of criminal contempt jurisdiction and the practice of frequently summoning government officials to court.
Earlier in April 2023 the High Court had directed the Government of Uttar Pradesh for notifying rules proposed by the Chief Justice pertaining to staff and allowances payable to former Judges of the Allahabad High Court. An application was moved seeking recall of the aforesaid order passed by the High Court on behalf of the Government of Uttar Pradesh, which application was treated as contemptuous and criminal contempt proceedings were accordingly initiated by the High Court. Officials including the senior government officials were taken into custody with bailable warrants having been issued against the Chief Secretary and the Additional Chief Secretary. All the orders were passed in writ petition instituted in 2011 by the association of retired Supreme Court and High Court Judges at Allahabad. The Supreme Court had earlier in the judgment of P. Ramakrishnam Raju v. Union of India2, issued detailed directions and guidelines pertaining inter alia to the post-retiral benefits payable to former Judges of the High Courts, on the lines of scheme formulated by State of Andhra Pradesh, recommending other States also to toe the line. Contempt petitions were also instituted before the Supreme Court for non-compliance of the Court’s directions, in which States were directed to file affidavits detailing all the steps taken towards compliance of the Court’s earlier orders.
In the above backdrop Government of Uttar Pradesh had issued an order in July 2018 revising the post retiral benefits for former Judges, whilst increasing the domestic help allowance payable to them, from Rs 15,000-20,000 per month. An application was filed by the association before the High Court seeking parity in the State of Uttar Pradesh with the scheme framed by the Andhra Pradesh Government. In this backdrop, the Chief Justice of the Allahabad High Court “Rules for providing domestic help to former Chief Justices and former Judges of Allahabad High Court”, under Article 2293 of the Constitution of India, wherein provisions for selection, appointment and other financial matters were included in the aforesaid rules. The High Court in the above backdrop heard the writ petition and summoned various officials of the Government of Uttar Pradesh, passing various orders including the two orders assailed before the High Court. In the first order, the High Court directed notification of the rules, as also personal presence of Additional Chief Secretary before it. In the second order, when the Government of Uttar Pradesh moved recall application, it was held that the same constituted “ex facie criminal contempt”, for non-compliance of the first impugned order. Directions for taking into custody the Special Secretary Finance and others were accordingly passed as aforestated which were assailed before the Supreme Court.
The Court accordingly framed three broad questions of law for its consideration, which were as follows:
(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.
In re: Powers of the High Courts to direct notifications of the rules
Interpreting Article 229 of the Constitution of India, it was held that the same pertains only to the service conditions of “officers and servants” of the High Courts and does not include Judges, either sitting or retired. Thus, the Chief Justice does not possess any powers under Article 229 for making rules pertaining to the post panel benefits able to form a Chief Justice and Judges of the High Court. Thus, the rules were clearly outside the competence of the Chief Justice and reliance upon Article 229 in the Preamble was clearly misplaced. Insofar as reliance upon the judgment of P. Ramakrishnam Raju case4 was concerned, it was held that the scheme as applicable in Andhra Pradesh was never directed by the Supreme Court to be adopted in toto, “but depending on the local conditions”. The direction was issued to the State Government, without conferring any powers on the Chief Justices, acting on the administrative side to frame rules about post retail benefits or allowances for formal Judges, which could have been mandatorily notified only by the State Government. The High Court could not have compelled the State Government on the judicial side who have notified rules as policymaking by the Government and envisages various steps and the consideration of various factors including local conditions, financial considerations and approval from various departments. The rules promulgated by the Chief Justice at the highest amounted to inputs to the State Government, with the State Government being free to constructively consider the desirability of the rules within its own decision-making apparatus. The Court accordingly held that the High Court has acted beyond its jurisdiction under Article 2265, whilst issuing directions to the notifying the aforesaid rules.
In re: Criminal contempt cannot lie for availing the legal remedies and raising legal challenges to any order
Referring to the provisions of the Contempt of Courts Act, 19716, specifically the definition of “criminal contempt” vide Section 2(c), it was held that the threshold for criminal contempt is much higher and more stringent. Thus, the assessment of the High Court even if assumed to be correct could never have constituted criminal contempt, but at the most civil contempt. There was no reasoning as to how the standards of criminal contempt were met with a non-compliance of the first impugned order (regarding notification of the rules). Even the standards for civil contempt were not met out in the facts of the case as the power of the High Court’s cannot be used to obstruct the parties or their Councils from availing legal remedies. The Government of Uttar Pradesh in the present case was availing its legal remedy of filing a recall application, which could have never been treated as a legal obstacle in complying with the first impugned order. Thus, this conduct never construed any “civil contempt”, much less “criminal contempt”. The summary procedure of summoning of government officials on the ground of commission of such alleged contempt under Section 147 of the Contempt of Courts Act, 1971 could not have been invoked as a matter of routine and reserved for only extraordinary circumstances. Referring to the judgment of Leila David (6) v. State of Maharashtra8, it was held that personal presence of any contemnors, cannot be directed as a matter of routine. Thus, the Court held that invocation of criminal contempt, for taking the government officials into custody was clearly never warranted.
In re: Summoning of government officials before courts
The Court held that the appearance of government officials before courts must not be reduced to a routine measure wherever Government is a party but must be resorted to in limited circumstances. The power to summon government officials cannot be used as a tool to pressurize the Government, particularly under the threat of contempt. Without consent on affidavit or instructions to law officers in writing courts must also refrain from relying on mere oral undertakings by government officials in the courts. Referring to the judgment of Mohd. Iqbal Khanday v. Abdul Majid Rather9, it was held that courts must primarily deal with law officers acting as primary point of contact between courts and the Government. Thus, in the present case the issuance of bailable moments of the High Court against the government officials, including the Chief Secretaries who were not even summoned in the first place was an attempt clearly to unduly pressurize the Government.
Referring to the judgment of State of U.P. v. Manoj Kumar Sharma10, it was stated that frequent summoning of government officials “at the drop of a hat” was already frowned upon earlier. Respect to the Court has to be commanded and not demanded, which never gets enhanced by calling the public officials. The presence of a public officer at the cost of other official engagements demanding their attention as many important tasks entrusted to them get delayed. Rather courts across the country must foster an environment of respect and professionalism, duly considering the constitutional provisional mandate of law officers.
Accordingly, the Court framed a standard operating procedure addressing the appearance of the officials before the courts, aiming to serve as a guiding framework, steering the Court away from arbitrary and frequent summoning of government officials and promoting maturity in their functioning. This standard operating procedure provided for the following:
(i) personal presence pending adjudication of a dispute;
(ii) procedure prior to directing personal presence;
(iii) procedure during the personal presence of government officials;
(iv) time for compliance with judicial orders by the Government; and
(v) Personal presence for enforcement/contempt of Court proceedings.
Accordingly, in the above impugned orders passed by the High Court were set aside by the Court, whilst granted liberty to hear the writ petition in view of the observations made in the judgment.
2. (2014) 12 SCC 1.
3. Constitution of India, Art. 229.
4. (2014) 12 SCC 1.
5. Constitution of India, Art. 226.
6. Contempt of Courts Act, 1971.
7. Contempt of Courts Act, 1971, S. 14.
8. (2009)10 SCC 337.
9. (1994) 4 SCC 34.
10. (2021) 7 SCC 806