How does the Supreme Court’s treatment of the new standard operating procedure to deal with government officials required in court cases compare with the court’s treatment of the petition filed by 14 Opposition parties earlier this year against “harassment” by investigating agencies and for following due process at the courts?
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YESTERDAY, while hearing a case relating to the summoning of two government officials by the Allahabad High Court for contempt of court, the Supreme Court said that it will “lay down some broad yardsticks for summoning government officers to courts”.
A Bench of Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justices J.B. Pardiwala and Manoj Misra noted that there is a need to establish different standards for summoning government officers.
Pertinently, on August 16, the Union government submitted a standard operating procedure (SOP) to the Supreme Court seeking to govern the procedure regarding appearance of government officials before courts.
Yesterday’s comments by the court are a confirmation that the court views the draft favourably, although with some reservations on a few points.
This development must be seen in light of the refusal of the Supreme Court to entertain a petition a few months ago by 14 Opposition parties seeking certain similar procedural guidelines to prevent their “harassment” by investigating agencies and for ‘due process’ at the courts.
About the petition by the Opposition parties
On March 24 this year, 14 Opposition parties came together and filed a petition seeking relief from the Supreme Court.
The relief sought under the petition included strict adherence to the triple test; i.e., i) whether a person is a flight risk, ii) whether there is a reasonable apprehension of the tampering of evidence, iii) whether there is a reasonable apprehension influencing or intimidation of witnesses; by the police, the Central Bureau of Investigation (CBI) and the Enforcement Directorate (ED) officials as well as the courts for arrest of persons for any cognisable offences, except those involving serious bodily violence.
The Opposition parties also requested the court that where these conditions were not satisfied, alternatives like interrogation at fixed hours or, at most, house arrest could be used to meet the demands of investigation.
On August 16, the Union government submitted a standard operating procedure to the Supreme Court seeking to govern the procedure regarding appearance of government officials before courts.
With regard to bail, the petitioners sought that the principle of ‘bail as rule, jail as exception’ be followed by all courts throughout, especially in cases where non-violent offences are alleged, and that bail be denied only where the aforementioned triple-test is met.
Where special laws with stringent bail conditions, such as Prevention of Money Laundering Act, 2002, are concerned, the petitioners sought that such bail provisions be harmonised with Article 21 of the Constitution.
The petitioning Opposition parties included the Indian National Congress, Rashtriya Janata Dal, All India Trinamool Congress and other regional parties. These parties collectively represent 42.5 percent of the votes cast in the last general elections.
The petition alleged that there exists a trend of utilising the ED and the CBI raids as a tool for harassment against Opposition leaders. This, in turn, creates an undemocratic playing field, as the Opposition has to spend a considerable amount of energy in defending themselves against these raids.
While making the submission, senior advocate Dr Abhishek Manu Singhvi, representing the petitioners, emphasised that the statistics showcase a grim image of the intrusion by the agencies against the members of the Opposition.
“About 95 percent of the cases from these raids are against Opposition leaders. These mass arrests are a threat to democracy and a sign of authoritarianism,” Dr Singhvi submitted before the court.
The division Bench comprising the CJI and Justice J.B. Pardiwala refused to entertain this plea and noted that politicians do not possess a higher immunity than ordinary citizens.
The Bench further exclaimed that “when you say that space for Opposition has shrunk, the remedy is in that space, the political space. Not the court.”
Soppy SOP?
Compare this with the SOP submitted by the Union government.
On August 16, the Union government submitted an SOP to the Supreme Court. This draft SOP seeks to govern the procedure regarding appearance of government officials before courts.
While submitting the SOP, the government asserted that the objective of the SOP is to create a “congenial and conducive environment between the judiciary and government.”
The SOP suggests that when the presence of a government official is required in the court, the official must have an option of virtual appearance.
The SOP also says that only in exceptional cases should government officials be summoned physically. When their physical presence is necessary, an official must be given an ample notice period to appear before the court.
“About 95 percent of the cases from these raids are against Opposition leaders. These mass arrests are a threat to democracy and a sign of authoritarianism,” Dr Abhishek Manu Singhvi submitted before the court.
In case the government requests a revised timeframe for compliance, the request must be allowed by the court, if it deems it to be reasonable, the SOP reads.
Further, the SOP seeks to reduce the scope of criminal contempt to only allow punishment if the act is willful.
In case the matter requires the setting up of a committee, then the court may only prescribe the broad composition and leave the appointment with the government, the SOP reads.
If the matter falls in the executive domain, the court, instead of hearing the matter, should refer the same to the government, the SOP suggests.
Balance of power
If we examine the two cases individually, they are unrelated.
But if we look at the results of these instances, we will be able to conclude that the larger result is shifting the balance of power in favour of the executive.
The Constitution demarcates the powers of the judiciary, executive and legislature. Though the demarcation is not formally done, it is an intrinsic part of the Constitution.
Within this framework, every organ seeks to preserve its authority while keeping a check on other organs, otherwise one organ may encroach upon the powers of another, thus leading to breakdown of constitutional machinery.
In the petition filed by the Opposition parties, the court refused to check the unbalancing of power.
The data, as presented by the Opposition parties before the court, clearly demonstrated that the ED, the CBI and other investigating agencies focus on Opposition parties in an outsized manner.
Yet the Supreme Court, in its wisdom, refused to act in the matter.
“Laying down general guidelines de hors the facts of the case cannot be done. We need to have facts in a case or group of cases,” the CJI had observed.
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The SOP provides that only in exceptional circumstances should officials be called to appear before the court. But what constitutes an “exceptional circumstance” is not defined.
Article 14 of the Indian Constitution provides that “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. This statement encompasses the idea of equity which proposes the idea of treating equals in the same manner.
In the case of Ewanlangi-E-Rymbai versus Jaintai Hills, the Supreme Court had observed that “to treat equally those who are not equal would itself be violative of Article 14 which embodies a rule against arbitrariness.” The classification is permissible only when it is found on intelligible differentiation.
The Bench asserted that “when you say that space for Opposition has shrunk, the remedy is in that space, the political space. Not the court.”
The Union government states that the SOP seeks to improve compliance with judicial orders. This, in turn, would minimise the scope of contempt of court, the government submits.
The argument seems to suggest that government officials have more important matters to attend to and cannot be bothered with judicial scrutiny of their actions or dereliction of duty.
The CJI has rightly pointed out that this cannot be allowed as it is an infringement of judicial review.
But there are larger problems here as well. The SOP fails to provide a reasonable nexus on the basis of which it seeks to differentiate between ordinary citizens and government officials. This showcases that the SOP stands violative of Article 14 of the Constitution.
Also, in the case of political parties’ petition against Central agencies, the court noted that “Political leaders stand absolutely on the same standing as the citizens of the country. They do not claim a higher immunity. How can there be a different set of procedures for them?”
If we apply the same reasoning, a question will arise— do government officials stand on a different footing than ordinary citizens?
On the face of it, it may be reasoned that government officials are public servants and we must formulate special provisions for them. But we must not forget that within our democracy, the rule of law prevails.
In the case, Motilal Sugar Mills versus State of UP, Justice P.N. Bhagwati has rightly noted that “No one is above the law. Everyone is subject to it as fully and completely as any other and the government is no exception. Government stands on the same footing as a private individual so far as the obligation of law is concerned.”
The Constitution demarcates the powers of the judiciary, executive and legislature.
We cannot accord special privileges to a specific segment of people without a reasonable differentiation, otherwise the same results in violation of the Constitution.
The need of the hour is to maintain the principles of separation of power. A passive stance from any organ can lead to a shift in balance of power which may impact the life of all citizens.
It is a special responsibility of the judiciary to regularly check and maintain this balance.
