The apex court while observing that the appearance of the government officials before the courts has been reduced to a routine measure in cases where the government is a party warned against this trend and said the practice must only be resorted to under limited circumstances
By Dr Swati Jindal Garg
A Supreme Court bench, comprising Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra, recently said that the Standard Operating Procedures (SOP) for courts emphasised that they needed to steer away from arbitrary summoning of officials. The bench also said that the courts must refrain from making any remarks or observations that humiliated officers during proceedings.
These observations were made by the Court while disposing of a plea filed by the Uttar Pradesh government against the orders passed by the Allahabad High Court last year to summon two senior government officers to address the issue of “arbitrary and frequent” summoning of government officials by the courts. In respect of the comments made on the attire of officials, the top court emphasised that the courts must refrain from doing so “unless there is a violation of the dress code of their own office”.
The Supreme Court set aside the High Court’s orders summoning the officials and opined that frequently summoning government officials runs contrary to the scheme envisaged by the Constitution. The Court also said: “We have formulated an SOP now whereby government officials will be summoned by courts. This SOP emphasises is for courts to steer away from arbitrary summoning of officials ushering in maturity.”
Acknowledging that the personal appearance of officials may be required for evidence in summary proceedings and if there is suppression of facts, the Court stated that government officials may not be summoned if issues can be sorted by way of affidavits from them.
Laying down the SOP, the Court directed that an official cannot be summoned only because his or her view is different from the view of the court. It also said an advance notice must be given for adequate preparation and that the first option for such an appearance must be through video conferencing and that an invitational link for the video conferencing appearance must be sent by the registry of the court to the given mobile number and email ID of the concerned official by SMS, WhatsApp, email at least one day before the scheduled hearing.
The Supreme Court had, three years back, cautioned orally that judges cannot behave like “emperors”, summoning officials as a routine measure. The separation of powers between the judiciary and the executive should be maintained and good governance relies on mutual respect.
It has been observed of late that the appearance of the government officials before the courts has been reduced to a routine measure in the cases where the government is a party. Warning against this trend, the apex court observed that this practice must only be resorted to under limited circumstances. The Court also cautioned that the presence of the government officials must not be used as a tool to pressurise the government, particularly under the threat of contempt.
It was also stated that the courts must refrain from relying on mere undertakings given by government officials in court, without the consent on affidavit or instructions to law officers, such as the Attorney General, Solicitor General, or the Advocate Generals of states. In order to avoid undue harshness, it was also advised that the courts must be cognizant of the role of law officers before summoning the physical presence of government officials. It cannot be denied that law officers act as the primary point of contact between the courts and the government hence, they not only represent the government as an institution, but also represent the various departments and officials that comprise the government.
In the case under discussion, the High Court, 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, repeatedly summoned government officials, which was not right.
This is not the first time that the apex court has frowned upon the conduct of High Courts regarding the summoning of government officers. In State of Uttar Pradesh vs Manoj Kumar Sharma, the top court held that “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.” The Court had at that time too, stated that: “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.”
Clarifying that the presence of public officer always comes at the cost of other official engagements demanding their attention, the Court had also held that summoning of the officer was against the public interest as many important tasks entrusted to him got delayed, creating extra burden on the officer or delaying the decisions awaiting his opinion. It was also stated that the court proceedings took some time, as there is no mechanism of fixed time hearing in courts, as of now, hence it is not fair to call important officials at the drop of a hat. It cannot be forgotten that the courts have the power of pen which is more effective than the presence of any officer in the court, that there are many other ways to tackle this problem. For example, 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 instead of calling the officer concerned in person.
Exercising restraint, avoiding unwarranted remarks against public officials, and recognizing the functions of law officers not only contributes to a fair and balanced judicial system, but also fosters an environment of respect and professionalism. The constitutional or professional mandate of law officers, who represent the government and its officials before the courts has to be given its fair due in order to maintain the smooth functioning of the judicial system of the country. 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.
As an effective answer to all the problems, the apex court has taken a much awaited step of framing an SOP in order to specifically address the appearance of government officials before the courts. The SOP not only emphasizes the critical need for courts to exercise consistency and restraint, it also 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 said SOP has classified the proceedings into three categories based on the nature of the evidence taken on record, namely:
- Evidence-based Adjudication.
- Summary Proceedings.
- Non-adversarial Proceedings.
The Court has said that other than Evidence-based Adjudication, 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. Apart from that, the presence of a government official may be directed 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. The SOP also clarifies that 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.
The SOP further clarifies that 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 and even when the personal presence of an official is directed, reasons should be recorded as to why such presence is required. Due notice for in-person appearance, giving sufficient time for such appearance, must be served in advance to the officials so that they may come prepared and render due assistance to the court for proper adjudication of the matter for which they have been summoned.
The SOP then goes on to clarify the procedure that needs to be followed in instances where the court directs the personal presence of an official or a party. It has been stated that 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. It has also been categorically mentioned in the SOP that the government officials participating in the proceedings need not stand throughout the hearing and standing should be required only when the official is responding to or making any statements in court.
The SOP specifically states that during the course of proceedings, oral remarks with the potential to humiliate the official should be avoided and the court must refrain from making comments on the physical appearance, educational background, or social standing of the official appearing before it. The courts, it has been stated must cultivate an environment of respect and professionalism hence any 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.
The SOP brings with it the era of a new beginning wherein government officials will be accorded the respect they deserve and will not have to appear before the courts under the threat of contempt being initiated against them. How far the new SOP goes to redress the issue of the summoning of the officials, however, still remains to be seen.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi