Govt files SOP in SC on how to handle its officers in court

Appearance through video conferencing, refraining from making comments on the physical appearance and educational background of government officials and reasonable time frame for compliance of judicial orders are some of the suggestions enumerated in the Standard Operating Procedure (SOP) the government has submitted to the Supreme Court for consideration.

Solicitor General Tushar Mehta submitted the Standard Operating Procedure (SOP) in the top court regarding the appearance of government officials in court proceedings, including contempt proceedings.

The SOP submitted for the apex court's consideration is intended to be applicable to all proceedings in government-related matters before the Supreme Court, high courts and all other courts that are hearing matters under their respective appellate and/or original jurisdiction (writ petitions, PIL etc.) or proceedings related to contempt of court.

As per the SOP, in case of proceedings related to government matters where the personal appearance of a government official is involved, in-person appearance of government officials should be called for only in exceptional cases and not as a matter of routine.

"Courts should practice necessary restraint while summoning the government officials during the hearing of cases (writs, PILs etc) including contempt cases.

"In exceptional circumstances wherein there is no option other than the concerned government official to be present in person in the court, due notice for in-person appearance, giving sufficient time for such appearance, must be served in advance to such official," the SOP said.

However, in exceptional cases, where in-person appearance of a government official is still called for by the court, the court should allow as a first option to appear before it through video conference, it said.

"The invitation link of VC for appearance and viewing, as the case may be, can be sent by the Registry to the given mobile no/e-mail id by SMS/email/WhatsApp of the concerned official at least one day before the scheduled hearing. The appearance of government official in cases as pro forma party should be avoided," the SOP stated.

The guidelines state that comments on the "dress/physical appearance/educational and social background" of the government official appearing before the court should be avoided.

"Government officials are not officers of the court and there should be no objection to their appearing in a decent work dress unless such appearance is unprofessional or unbecoming of her/his position," the SOP said.

It said compliance of judicial orders involving complex policy matters requires various levels of decision-making and the courts may take into consideration these aspects before contemplating affixing some specific timelines for compliance of its orders.

"In case an order has already been passed and the time frame stated in the judicial order is requested to be revised on behalf of the government, the court may allow for a revised reasonable time frame for compliance of such judicial orders and allow for hearing of such requests of modification," the SOP said.

On contempt of court, the SOP stated that no contempt should be initiated in case of statements made in court by government counsel that is contrary to the stand of the government affirmed through its affidavit or written statement submitted before it.

"It is already established case law that an undertaking that is contrary to statutory provisions cannot be the basis for contempt proceedings. Similarly, in case of criminal contempt, the court should hesitate to punish a contemnor if the act or omission complained of was not wilful," it said.

"Before initiation of contempt proceedings, prayer for review petition on behalf of the government may be entertained by higher courts wherein it is prayed that substantive law points have not been considered by the court during the adjudication of the matter," the SOP said.

Suggesting that judges should not sit on contempt proceedings relating to their own orders, the SOP said it is an established principle of natural justice that no person can judge a case in which they have an interest or in other words be a judge in their own cause.

With regard to cases pertaining to policy matters, the SOP said in matters being heard by the court involving issues that are within the exclusive domain of the executive, the court may refer it to the executive instead of taking up such matter for adjudication and call for the appearance of a government official.

"In case of matters before the court involving public policy having wider implication not only for the Central Government but for the States and other stakeholders as well, it may be recommended to exercise caution to settle the point of law in rem (against a thing) before pronouncing the decision on the individual representation," the guidelines submitted in the apex court said.

The SOP said in matters before the court that involve setting up a committee for further examination of the matter, the court may prescribe only the broad "composition/domains of members/chairperson" of such committee instead of naming individual members and leave the identification/selection/ appointment of individual members/chairperson" to the administration.