§ Order XXVII-A Rule 1 (in substance)

In any suit in which it appears to the Court that any such question as is referred to in clause (1) of Article 132 read with Article 147 of the Constitution is involved, the Court shall not proceed to determine that question until after notice has been given —

to the Attorney General for India if the question of law concerns the Central Government, and

to the Advocate General of the State if the question of law concerns a State Government.

§ What the reference to Article 132 imports

• Article 132(1) provides for an appeal to the Supreme Court from a High Court where it certifies that the case involves a substantial question of law as to the interpretation of the Constitution.

• Article 147 provides that the expression includes a substantial question of law as to the interpretation of the Government of India Act, 1935 or of any Order in Council or order made thereunder, or of the Indian Independence Act, 1947.

• So the trigger is a substantial question of law as to the interpretation of the Constitution, and not every argument that mentions it. A point that is concluded by authority, or that would not affect the result, does not attract the rule.

§ The 1976 extension

Rule 1A extends the same discipline to a question as to the validity of any statutory instrument, which means a rule, notification, bye-law, order, scheme or form made under an enactment.

Why it was added. Much of the law that affects a litigant is in subordinate legislation rather than in the Act itself, and the authority that made it has the same interest in defending it as the Government has in defending a statute.

The consequence is the same: notice to the appropriate law officer before the question is determined, and the power to add the Government as a party.

Rule 2

The Court may at any stage of the proceedings order the Central Government or the State Government, as the case may be, to be ADDED AS A DEFENDANT, where it is not already a party and a question within Rule 1 or Rule 1A is involved

Rule 3

Where the Government is added as a party under Rule 2, costs are in the discretion of the court, and the Government is not ordinarily made liable for the costs of the other parties incurred before it was added

Rule 4

In the application of this Order to APPEALS, the word suit includes an appeal, and the word plaintiff includes an appellant, so the same requirements apply at the appellate stage

§ Three reasons

• The Government has an interest even where it is not a party. A declaration that a statute or a rule is invalid affects its administration generally, and it should be heard before that happens.

• A constitutional question should not be decided on an incomplete argument. Two private litigants may have neither the material nor the incentive to present the case for validity fully.

• It avoids collusion. Without the rule, parties with a common interest could obtain a declaration of invalidity in a contest that was not a real one.

§ The consequence of not giving notice

The determination is liable to be set aside. The words of Rule 1 are negative and mandatory: the court shall not proceed to determine the question until notice has been given.

But the defect is curable. The usual course is that the appellate court sets aside the finding on the constitutional question and remits the matter so that notice can be given, rather than treating the whole decree as a nullity.

And the rest of the case is unaffected, where the constitutional question can be separated from the other issues.

Order XXVII-A

Requires notice to the law officer before a constitutional question is determined, and allows the Government to be added

The subject of these notes

Proviso to Section 113

Makes a REFERENCE to the High Court COMPULSORY where the court is satisfied that a case involves a question as to the validity of an Act, Ordinance or Regulation, its determination is necessary, and the court thinks it invalid but no superior court has so held

Order XXVII-A secures a hearing; the proviso to Section 113 removes the decision from the subordinate court altogether

Article 228

The High Court may WITHDRAW a case pending in a subordinate court where it is satisfied that it involves a substantial question of law as to the interpretation of the Constitution the determination of which is necessary for the disposal of the case

A third route: the superior court takes the case itself

Order XXVII

Suits by or against the Government, and the procedure for them

Order XXVII-A deals with the different situation where the Government is NOT a party