Order XXVIIA Rule 2 CPC - Court May Add Government as a Party

Text of Order XXVIIA Rule 2 CPC

The Court may at any stage of the proceedings order that the Central Government or a State Government shall be added as a defendant in any suit involving any such question as is referred to in clause (1) of article 132, read with article 147, of the Constitution, if the Attorney General for India or the Advocate-General of the State, as the case may be, whether upon receipt of notice under rule 1, or otherwise, applies for such addition and the Court is satisfied that such addition is necessary or desirable for the satisfactory determination of the question of law involved.

When can the Government be added as a party?

Rule 2 applies where a suit raises a question of the constitutional character described in Article 132(1), read with Article 147, of the Constitution of India. It does not automatically apply merely because a government policy, official or statutory instrument is mentioned in a civil suit.

1. Relevant constitutional question: the suit involves a qualifying substantial question of law as to interpretation of the Constitution, read with the constitutional provisions identified in the rule.
2. Application by law officer: the Attorney General for India or the State Advocate-General, as applicable, seeks the Government's addition as a defendant.
3. Judicial satisfaction: the court concludes that joining the Government is necessary or desirable for satisfactory determination of that question of law.
4. Stage of proceedings: the court may make the order at any stage, subject to the statutory conditions and fair procedure.

The Government is not joined automatically upon the giving of notice under Rule 1. The court must consider the application and decide whether the statutory test is met.

Legal definitions and related provisions

Article 132(1), Constitution of India

Article 132(1) addresses appeals to the Supreme Court from a High Court judgment, decree or final order in civil, criminal or other proceedings where the High Court certifies that the case involves a substantial question of law as to interpretation of the Constitution. Order XXVIIA Rule 2 refers to the nature of the constitutional question; it does not itself provide an appeal.

Article 147, Constitution of India

Article 147 supplies an interpretation rule for constitutional references, including the meaning of a substantial question of law as to interpretation of the Constitution for specified purposes. Its historical references must be read with the constitutional text and applicable law.

Order XXVIIA Rule 1 CPC - Notice

Rule 1 addresses notice to the Attorney General for India or State Advocate-General when the court identifies the specified constitutional question. Rule 2 separately concerns the subsequent or independent application to add the relevant Government as a defendant.

Order I Rule 10(2) CPC - Addition of parties

Order I Rule 10(2) provides the court's general power, on the prescribed basis, to strike out or add parties whose presence is necessary for effective and complete adjudication. Order XXVIIA Rule 2 specifically addresses Government addition in the constitutional-question setting.

Attorney General and Advocate-General

The Attorney General for India is the constitutional law officer appointed under Article 76. A State Advocate-General is appointed under Article 165. Their roles under Rule 2 are not interchangeable: the relevant law officer applies in relation to the Government concerned.

Procedure under Order XXVIIA Rule 2

1. Identify the issue: the court determines whether the suit involves the qualifying constitutional interpretation question.
2. Give required notice: where Rule 1 applies, the appropriate law officer is notified before the court determines that question.
3. Consider the application: the Attorney General or Advocate-General may seek addition of the relevant Government, whether following notice or otherwise.
4. Hear the parties: the court considers the necessity or desirability of Government participation and applicable procedural fairness.
5. Pass an order: if satisfied, the court orders the Central or State Government to be added as defendant and gives consequential procedural directions.

Once added, the Government's participation is governed by the applicable CPC provisions, including relevant rules concerning suits by or against Government and procedural directions of the court.

Rule 2 and Rule 1A: Important distinction

Rule 2 concerns addition of the Central or State Government in suits involving the specified constitutional question. Order XXVIIA Rule 1A concerns notice where validity of a statutory instrument is questioned, other than a question of the kind addressed by Rule 1. The correct procedure depends on the actual legal issue, not simply the fact that a public authority is involved.

See also Order XXVIIA Rule 1 CPC and Order XXVIIA Rule 1A CPC.

Illustrative example

Suppose a civil suit raises a substantial constitutional interpretation question affecting the Central Government. The Attorney General for India applies to have the Central Government joined as defendant. The court may allow the application if it is satisfied that the Government's participation is necessary or desirable for satisfactory determination of that question. The application alone does not compel joinder.

Frequently asked questions

Is adding the Government mandatory under Rule 2?

No. The rule uses "may", and the court must be satisfied that the addition is necessary or desirable for satisfactory determination of the constitutional question.

Can the Government be added after the suit has started?

Yes. Rule 2 expressly authorizes an order at any stage of the proceedings, provided its conditions are satisfied.

Can any party directly demand Government addition under this rule?

Rule 2 specifically requires an application by the Attorney General for India or the relevant State Advocate-General. Other joinder requests may have to be considered under different CPC provisions, including Order I Rule 10.

Official legal sources

• India Code: Code of Civil Procedure, 1908 - Order XXVIIA and Order I.
• Legislative Department: Constitution of India - Articles 76, 132, 147 and 165.
• Code of Civil Procedure: sections, orders and rules.

Consult the applicable official consolidated text, amendments and court rules for any particular proceeding.