Supreme Court: In an appeal against Allahabad High Court’s orders, which gave rise to questions about the separation of powers, the exercise of criminal contempt jurisdiction, and the practice of summoning Government Officials to the Court, the full Bench of Dr. Dhananjaya Y Chandrachud, CJI*, JB Pardiwala and Manoj Misra, JJ. gave a Standard Operating Procedure along with a slew of guidelines as to require the presence of Government Officials. The Court also held that the High Court cannot direct the State Government to enact rules on a particular subject, by a writ of mandamus or otherwise, being contrary to Separation of power.
Factual Matrix
In the matter at hand, the High Court, vide order dated 04-04-2023, directed the Government of Uttar Pradesh 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 and directed certain Government officials to be present before the Court if the order was not complied with. In response to this, the State moved an application before the High Court to seek a recall of the Order dated 4-04-2023, highlighting legal obstacles in complying with the directions of the High Court. The High Court vide order dated 19-04-2023, held that the recall application was ‘contemptuous’ and initiated criminal contempt proceedings against various Government officials. The officials present in the Court, including the Secretary and Special Secretary (Finance) were taken into custody and bailable warrants were issued against the Chief Secretary and the Additional Chief Secretary (Finance).
The Court, vide an interim order dated 20-04-2023, stayed the operation of both the Impugned Orders and the Government officials, who were taken into custody were directed to be released.
Issues
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?
The Court noted that the preamble to the Rules proposed by the Chief Justice expressly states that the ‘Rules have been made pursuant to Article 229 of the Constitution’. The Article 229 pertains to ‘officers and servants’ of the High Courts. The Court noted that the proviso to the Article mandates that the rules made under Article 229(2) require the approval of the Governor of the State, in so far as they relate to salaries, allowances, leave or pensions.
On perusal of Article 229, the Court noted that Article 229(2) pertains only to the service conditions of ‘officers and servants’ of the High Courts and does not include Judges of the High Court (both sitting and retired judges). The Court held that the Chief Justice does not have the power, under Article 229, to make rules pertaining to the post-retiral benefits payable to former Chief Justices and Judges of the High Court. Therefore, the Court held that in the present case, the Rules proposed by the Chief Justice, did not fall within the competence of the Chief Justice under Article 229.
The Court referred to a catena of Judgments, which were relied onto in order to justify the promulgation of the Rules by the Chief Justice, wherein the Court directed the State Governments to frame schemes for post-retiral benefits and pointed that the Court did not grant the Chief Justices of High Courts, acting on the administrative side, the power to frame rules about post-retiral benefits for former judges that must mandatorily be notified by the State Governments. The Court said that the reliance on such Judgments by the High Court, was erroneous.
The Court held that the High Court, acting under Article 226, cannot usurp the functions of the executive and compel the executive to exercise its rule-making power in the manner directed by it. The Court said that directions by the High Court such as in the first impugned order, compelling the State Government to mandatorily notify the Rules by the next date of hearing are impermissible and contrary to the separation of powers envisaged by the Constitution and virtually amounted to the High Court issuing a writ of mandamus to notify the Rules proposed by the Chief Justice. The High Court cannot direct the State Government to enact rules on a particular subject, by a writ of mandamus or otherwise. The Court also explained that 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 and cannot use its judicial powers to browbeat the State Government to notify the Rules proposed by the Chief Justice. Therefore, the Court held that in the present case, the High Court acted beyond its jurisdiction under Article 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.
ii) Whether the power of criminal contempt could be invoked by the High Court against Government officials on the ground that the application for recall was ‘contemptuous’?
The Court referred to the Contempt of Courts Act, 1971, which defines both ‘civil contempt’ and ‘criminal contempt’. The Court noted that ‘Wilful disobedience’ of a judgement, decree, direction, order, writ, or process of a court or wilful breach of an undertaking given to a court amounts to ‘civil contempt’ and on the other hand, the threshold for ‘criminal contempt’ is higher and more stringent, which involves ‘scandalising’ or ‘lowering’ the authority of any court; prejudicing or interfering with judicial proceedings; or interfering with or obstructing the administration of justice.
The Court noted that in the present case, in second impugned order, the High Court held that the actions of the officials constituted criminal contempt as there was no “valid reason” to not comply with the earlier Order. The Court said that the High Court acted in haste by invoking criminal contempt against the Government officials and directing for them to be taken into custody and the 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’. The Court opined that, even the standard for civil contempt was not met in the present case. The Court reiterated that the power of the High Courts to initiate contempt proceedings cannot be used to obstruct parties or their counsel from availing legal remedies.
On bare perusal of the application filed by the State Officials, the Court said that the State was availing its legitimate legal remedy of filing a recall application, in a bona fide manner and not to willfully disobey the First Impugned Order.
Guidelines to guide the Courts as to direct the presence of Government Officials
The Court took note of the conduct of the High Court in frequently summoning officials of the Government. The Court said that 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 Court stated “that 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”. Considering the present situation, the Bench framed a Standard Operating Procedure (SOP) specifically addressing the appearance of Government Officials before the Courts, which emphasizes the critical need for Courts to exercise consistency and restraint.
[State of Uttar Pradesh v. Association of Retired Supreme Court and High Court Judges at Allahabad, 2024 SCC OnLine SC 14, Decided on: 03-01-2023]
Judgment Authored by: Chief Justice of India Dr. DY Chandrachud