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Summons - power of pen more effective than the presence of an officer in court

JANUARY 24, 2024

By Vijay Kumar

"YOU think this is a cinema hall?", a High Court Judge asked an IAS officer who appeared before him. "Don't you know what dress code you have to wear in the court? Did you not go for IAS training in Mussoorie? What is wrong with the IAS officers in the state? They don't know how to appear in court?" the judge asked.

Recently, the Supreme Court in Civil Appeal Nos 23-24 of 2024, The State of Uttar Pradesh Versus Association of Retired Supreme Court and High Court Judges observed,

Summoning of Government Officials before Courts

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.

Courts must be cognizant of the role of law officers before summoning the physical presence of government officials. 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.

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.

The Supreme Court in State of Uttar Pradesh v. Manoj Kumar Sharma in July 2021 frowned upon the frequent summoning of government officials "at the drop of a hat". The Court held:

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

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 the 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 get 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.

In the 2024 judgement referred to above, the Supreme Court further observed,

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.

So, the Supreme Court framed a Standard Operating Procedure (SOP) specifically addressing the appearance of Government Officials before the courts.

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.

Highlights of the SOP are:

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.

Procedure during the personal presence of government officials:

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.

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.

The conclusions in this Judgement were:

1. 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.

2. The SOP on Personal Appearance of Government Officials in Court Proceedings framed by this Court 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.

When wrongly summoned:

In 2013-TIOL-927-CESTAT-BANG, the CESTAT noted:

5. When the matter was mentioned by the counsel before us on 18/03/2013, the manner in which our ad interim stay order was communicated to the Department was not correctly disclosed. Had it been correctly stated by the counsel for the appellant on the said date, we would not have summoned the Superintendent. The Superintendent of Central Excise and Customs, Kakinada came all the way to Bangalore and stayed in the city overnight in order to answer our summons. He is present before us in his official uniform and has been introduced to us by the Commissioner (AR). He has been constrained to keep away from his official duties for two days on account of the reprehensible conduct of the appellant. From the submissions made before us, we are satisfied that the Superintendent's presence in the Court today was not warranted in the correct facts and circumstances of this case. It has been occasioned by the misfeasance of the appellant. This apart, as already noted, a material fact was suppressed before us on behalf of the appellant on 18/03/2013. In such circumstances, the appellant has got to pay costs of the respondent. Accordingly, we direct the appellant to deposit a sum of Rs.10,000/- (Rupees ten thousand only) with the Government under the appropriate head, within seven days from today and report compliance to this Bench on 02/04/2013. The witness is discharged.

Recently, a GST Commissioner was summoned by the Gujarat High Court. You can see the proceedings at https://www.youtube.com/watch?v=bwh7wWy7goY from 35.00 to 45.10.

Sometimes, the only way to get the system to work is by summoning the officers concerned. They should remember "Be you ever so high, the law is above you".

Until next week


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