REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5600 OF 2006

R.S.Singh ..Appellant

versus

U.P.Malaria Nirikshak Sangh & Others ..Respondents

O R D E R

Heard learned counsel for the parties.

This  appeal  has  been  filed  against  the  impugned  

interim orders dated 13th November, 2003 and 18th December,  

2003 passed by the High Court of Judicature at Allahabad,  

Bench at Lucknow.

We have perused the said orders.   

A direction has been given in the said orders that  

the Principal Secretary, Finance along with the Principal  

Secretary, Medical & Health, U.P. Government shall appear  

personally before the High Court on the next date for non-

compliance  of  the  judgment  of  the  High  Court  dated  

15.11.1989/13.12.1989.

This Court has been repeatedly observing that the  

High  Courts  ordinarily  should  not  summon  the  senior  

officials of the government and that should only be done in  

very rare and exceptional cases when there are compelling

circumstances to do so.

In State of Gujarat vs. Turabali Gulamhussain  

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Hirani, AIR 2008 SC 86, this Court observed:

“6. A large number of cases have come up before  this Court where we find that learned Judges of  various High Courts have been summoning the Chief  Secretary, Secretaries to the government (Central  and  State),  Director  Generals  of  Police,  Director, CBI or BSF or other senior officials of  the government.

7.  There  is  no  doubt  that  the  High  Court  has  power  to  summon  these  officials,  but  in  our  opinion  that  should  be  done  in  very  rare  and  exceptional  cases  when  there  are  compelling  circumstances  to  do  so.  Such  summoning  orders  should not be passed lightly or as a routine or  at the drop of a hat.

8. Judges should have modesty and humility. They  should realize that summoning a senior official,  except  in  some  very  rare  and  exceptional  situation, and that too for compelling reasons,  is counter productive and may also involve heavy  expenses  and  valuable  time  of  the  official  concerned.

9.  The  judiciary  must  have  respect  for  the  executive  and  the  legislature.  Judges  should  realize that officials like the Chief Secretary,  Secretary  to  the  government,  Commissioners,  District  Magistrates,  senior  police  officials  etc.  are  extremely  busy  persons  who  are  often  working from morning till night. No doubt, the  ministers lay down the policy, but the actual implementation  of  the  policy  and  day  to  day  running of the government has to be done by the  bureaucrats, and hence the bureaucrats are often  working round the clock. If they are summoned by  the Court they will, of course, appear before the  Court, but then a lot of public money and time  may be unnecessarily wasted. Sometimes High Court  Judges summon high officials in far off places

like  Director,  CBI  or  Home  Secretary  to  the  Government of India not realizing that it entails  heavy  expenditure  like  arranging  of  a  BSF  aircraft, coupled with public money and valuable  time  which  would  have  been  otherwise  spent  on  public welfare.

10.  Hence,  frequent,  casual  and  lackadaisical  summoning of high officials by the Court cannot  be appreciated. We are constrained to make these  

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observations because we are coming across a large  number of cases where such orders summoning of  high  officials  are  being  passed  by  the  High  Courts and often it is nothing but for the ego  satisfaction of the learned Judge.

11.  We  do  not  mean  to  say  that  in  no  circumstances  and  on  no  occasion  should  an  official  be  summoned  by  the  Court.  In  some  extreme  and  compelling  situation  that  may  be  done,  but  on  such  occasions  also  the  senior  official  must  be  given  proper  respect  by  the  Court  and  he  should  not  be  humiliated.  Such  senior officials need not be made to stand all  the time when the hearing is going on, and they  can be offered a chair by the Court to sit. They  need  to  stand  only  when  answering  or  making  a  statement in the Court. The senior officials too  have their self-respect, and if the Court gives  them respect they in turn will respect the Court.  Respect begets respect.

12. It sometimes happens that a senior official  may not even know about the order of the High  Court. For example, if the High Court stays the  order of the Collector of suspension of a class- III  or  class  IV  employee  in  a   government  department, and certified copy of that order is  left  with  the  Clerk  in  the  office  of  the  Collector, it often happens that the Collector is  not even aware of the order as he has gone on  tour and he may come to know about it only after  a few days. In the meantime a contempt of court  notice  is  issued  against  him  by  the  Court  summoning him to be personally present in Court.  In our opinion, this should not be readily done,  because  there  is  no  reason  why  the  Collector  would not obey the order of the High Court. In

such circumstances, the Court should only request  the  government  counsel  to  inform  the  concerned  Collector about the earlier order of the Court  which may not have been brought to the notice of  the Collector concerned, and the High Court can  again list the case after a week or two. Almost  invariably it will be found that as soon as the  Collector comes to know about the stay order of  the High Court, he orders compliance of it.   

13. In the present case, we find no occasion or  reason for the learned Judge to summon the Chief  Secretary or the Law Secretary by the impugned  order. If the learned Judge was concerned about  the lack of enough Stenographers in the office of  

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the Public Prosecutor he could have called the  Advocate General or Govt. Advocate to his chamber  and  have  asked  him  to  convey  the  Court’s  displeasure to the government, but where was the  need  to  summon  the  Chief  Secretary  or  Law  Secretary  ?  Hence,  we  set  aside  the  impugned  interim  order  dated  11.4.2007  and  condone  the  delay of 25 days in filing the appeal before the  High  Court.  The  High  Court  may  now  proceed  to  hear the Criminal Appeal in accordance with law.  The appeal is allowed.”

Following the above decision, this Court in State of  

U.P. & Ors.  vs.  Jasvir Singh & Ors, JT 2011(1) SC 446,  

observed :

“7. It is a matter of concern that there is  a growing trend among a few Judges of the High  Court  to  routinely  and  frequently  require  the  presence,  in  court,  of  senior  officers  of  the  government  and  local  and  other  authorities,  including officers of the level of Secretaries,  for perceived non-compliance with its suggestions  or  to  seek  insignificant  clarifications.  The  power of the High Court under Article 226 is no  doubt very wide. It can issue to any person or  authority  or  government,  directions,  orders,  writs  for  enforcement  of  fundamental  rights  or  for  any  other  purpose.  The  High  Court  has  the  power to summon or require the personal presence  of  any  officer,  to  assist  the  court  to  render

justice or arrive at a proper decision. But there  are  well  settled  norms  and  procedures  for  exercise of such power.

8.    This court has repeatedly noticed that  the  real  power  of  courts  is  not  in  passing  decrees  and  orders,  nor  in  punishing  offenders  and contemnors, nor in summoning the presence of  senior  officers,  but  in  the  trust,  faith  and  confidence of the common man in the judiciary.  Such trust and confidence should not be frittered  away  by  unnecessary  and  unwarranted  show  or  exercise  of  power.  Greater  the  power,  greater  should be the responsibility in exercising such  power. The normal procedure in writ petitions is  to hear the parties through their counsel who are  instructed in the matter, and decide them by  

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examining  the  pleadings/affidavit/evidence/documents/material.  Where the court seeks any information about the  compliance  with  any  of  its  directions,  it  is  furnished by affidavits or reports supported by  relevant documents. Requiring the presence of the  senior officers of the government in court should  be  as  a  last  resort,  in  rare  and  exceptional  cases,  where  such  presence  is  absolutely  necessary, as for example, where it is necessary  to seek assistance in explaining complex policy  or  technical  issues,  which  the  counsel  is  not  able  to  explain  properly.  The  court  may  also  require  personal  attendance  of  the  officers,  where it finds that any officer is deliberately  or with ulterior motives withholding any specific  information  required  by  the  court  which  he  is  legally bound to provide or has misrepresented or  suppressed the correct position.

9.    Where the State has a definite policy  or  taken  a  specific  stand  and  that  has  been  clearly explained by way of affidavit, the court  should not attempt to impose a contrary view by  way of suggestions or proposals for settlement.  A  court can of course express its views and issue  directions through its reasoned orders, subject to  limitations in regard to interference in matters

of policy. But it should not, and in fact, it  cannot attempt to impose its views by asking an  unwilling party to settle on the terms suggested  by  it.  At  all  events  the  courts  should  avoid  directing the senior officers to be present in  court  to  settle  the  grievances  of  individual  litigants for whom the court may have sympathy.  The court should realize that the state has its  own priorities, policies and compulsions which may  result in a particular stand. Merely because the  court does not like such a stand, it cannot summon  or  call  the  senior  officers  time  and  again  to  court or issue threatening show cause notices. The  senior officers of the government are in-charge of  the administration of the State, have their own  busy  schedules.  The  court  should  desist  from  calling them for all and sundry matters, as that  would amount to abuse of judicial power. Courts  should guard against such transgressions in the  exercise of power.”……..

                    (emphasis supplied)

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We are pained to observe that despite our decision  

in  State  of  Gujarat   vs.   Turabali  Gulamhussain  Hirani  

(supra)  many  High  Courts  are  persisting  in  summoning  

executive officials where it was not absolutely necessary  

to summon them.  It is possible that our judgment in the  

aforesaid decision has not been brought to the notice of  

the Hon’ble Judges in many of the High Courts and it may  

also be that the subsequent decision of this Court in State  

of U.P.  vs.  Jasvir Singh (supra) has not been brought to  

their  notice.   Consequently  we  are  coming  across  many  

orders  where  High  Court  Judges  are  summoning  executive  

officials routinely, casually, and sometimes even at the

drop of a hat.  This is most improper.

We  are  constrained  to  make  these  observations  

because we are repeatedly coming across a large number of  

cases where such orders summoning high officials are being  

passed by the High Courts and often it is only for the ego  

satisfaction of the learned Judge.  Judges should not have  

any ego problems.  In particular, members of the higher  

judiciary (High Court and Supreme Court) should have great  

modesty and humility. This is because the higher one moves  

in the hierarchy the greater become his powers.  Hence,  

unless one has modesty and humility, he may play havoc.  

High Court Judges have tremendous powers, but the beauty  

lies in not exercising those powers except where absolutely  

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necessary.   Flaunting  these  powers  unnecessarily  only  

brings the judiciary into disrepute. Some of the greatest  

Judges  have  been  the  most  modest,  e.g.,  Justice  Holmes,  

Judge Learned Hand, Justice Brandeis, Justice Cardozo, Lord  

Atkins, Lord Denning, Justice Venkatachaliah, etc.   

At the same time, we make it clear that we have also  

come  across  cases  where  orders  of  the  Courts  are  

deliberately ignored by government officials which is not  

proper.  Democracy and the rule of law requires that the  

orders  of  the  Courts  should  be  complied  with  by  the

executive authorities promptly and with due diligence.  If  

the  executive  authorities  are  dissatisfied  with  a  High  

Court  order,  they  may  appeal  against  that  order  to  the  

Supreme court but it is not proper to ignore such orders.

In our opinion, if the High Court finds that its  

order  has  not  been  complied  with,  it  shall  first  see  

whether the order can be complied with without summoning  

any official and for that purpose it can ask the Advocate  

General,  Additional  Advocate  General   or  Chief  Standing  

Counsel or some other counsel of the State to communicate  

to the concerned official that there is some order of the  

Court which has not been complied with.  Ordinarily, this  

will  suffice  because  we  see  no  reason  as  to  why  the  

executive authorities will not comply with the orders of  

the court.  It is only in some extreme case where the High  

Court is convinced that deliberately the order of the court  

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has been ignored in a spirit of defiance that it may summon  

the official to explain why the order of the court has not  

been complied with.

The system functions on mutual respect between the  

judiciary  and  the  executive.   While  the  judiciary  must  

respect the executive, at the same time, the executive must  

also respect the judiciary.  If we do not respect each  

other, the system will collapse.

In the present case, we are of the opinion that the  

High  Court  was  not  justified  in  summoning  the  

aforementioned officials.  

Following the decision in Turabali's case(supra) and  

Jasvir  Singh's  case  (supra),  this  appeal  is  allowed  and  

consequently  the  direction  of  the  High  Court   summoning  

Principal  Secretary,  Finance  along with  Principal  

Secretary, Medical & health is set aside.  The Contempt  

Petition shall be decided on its own merits, in accordance  

with law, expeditiously.  

A copy of this order will be sent to the Registrar  

Generals/Registrars  of  all  the  High  Courts,  who  shall  

circulate copies to the learned Judges of the High Courts.  

The Chief Justices of the High Courts, in particular, shall  

bring this judgment to the notice of all Hon'ble Judges of  

the Court, with the request that they follow this decision,  

in letter and spirit.

A copy of this order will also be sent to the  

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Cabinet Secretary, Union of India, New Delhi as well as to  

all the Chief Secretaries of all States/Union Territories.  

.......................

...J. [MARKANDEY KATJU]

NEW DELHI; ..........................J. MARCH 09, 2011 [GYAN SUDHA MISRA]