Why the Supreme Court Registry’s rejection of Aruna Roy’s intervention application in Prashant Bhushan’s contempt case is legally flawed

The Registrar of the Supreme Court on August 4 refused to register the intervention application filed by the social activist Aruna Roy with 15 other civil society members seeking to intervene in the contempt case against Advocate Prashant Bhushan.

The same was done in purported by exercise of the powers under Order XV Rule 5 of the Supreme Court Rules, 2013

Intervention Application: Meaning and Scope

A third party (the intervener) may file an intervention application to ‘interrupt’ the proceedings of a case and claim a right to hearing in the interest of justice. The Code of Civil Procedure, 1908 (CPC) provides an extensive mechanism for addition of third parties to a suit under Order 1 Rule 10 CPC. The CPC Rules on addition of third parties are not only applicable to suits, but have also been recognized to embody the general principles for impleadment in civil proceedings other than suits.

Intervention and impleadment, though often erroneously used interchangeably, are not one and the same. Both intervener and impleader are third parties. However, an intervener may or may not have an interest in the outcome of the proceedings and may merely assist the Court in the interest of justice. An intervener does not file any pleadings or lead evidence himself. He assists the Court only on the basis of the pleadings/documents filed by the parties without becoming a party to the matter himself.

On the other hand, a party seeking impleadment in a case needs to show personal interest and likelihood of prejudice if the case is decided without hearing him. Once an impleadment application is allowed, the impleader is joined as party defendant/respondent to the suit/proceedings, and is entitled to file his pleadings and lead evidence in his own right.

Thus, the intervention applications are comparatively more liberally allowed compared to impleadment applications, particularly in the matters of public interest or constitutional importance. For a person to claim presence before the Court, he must satisfy the Court about the necessity and benefits of his entering appearance for effective disposal of the case in the interest of justice. At the same time, it is well-recognised that the power of the Court to join any person in any proceedings must be based on sound reasoning after due consideration of the facts and circumstances of a particular case.

Registry’s lodging of intervention application under Order XV Rule 5

Under Order XV Rule 5 (which applies to the petitions generally, and is seldom exercised to scuttle petitions at the outset), the Registrar of the Supreme Court “may refuse to receive a petition on the ground that it discloses no reasonable cause or is frivolous or contains scandalous matter.” When a petition/application is rejected on the ground mentioned under Order XV Rule 5, it is said to be lodged under this provision.

In this case, while lodging the application under Order XV Rule 5, the Registry has noted that the interveners have ostensibly based their locus for intervention on the fact that the contempt petition involves issues of grave public importance. After observing the same, the Registry has rejected the application on the ground that “no reasonable cause” exists in the present case.

The order of the Registry lies upon the Supreme Court’s verdict in In re: Justice CS Karnan versus Supreme Court of India to support its finding of “no reasonable cause” in the intervention application. Interestingly, the Registry's order does not state that the intervention application is either frivolous or contains scandalous matter, the two other possible grounds for rejection of a petition under Order XV Rule 5.

Multiple errors in the Registry’s approach

I argue that regardless of the merits of the intervention application filed by Aruna Roy and other activists, the Registry has erroneously rejected the said application by invoking its general powers under Oder XV Rule 5. I enunciate basic fundamental errors in the Registry’s order, which render it perverse.

Firstly, it is important to underscore the fact that a holistic reading of the Supreme Court Rules, 2013 suggests that a person is allowed to file an intervention application in a pending case. Although there are no separate Orders in Supreme Court Rules, which deal with intervention applications or interveners at one place, as per Order I, Rule 2(1)(o), a ‘respondent’ includes an intervener. Order V Rule 2(3) of the Supreme Court Rules, inter alia, contemplates that an application for intervention in a suit, appeal or other proceedings may be decided by a Single Judge sitting in Chambers. It is pertinent to note that even if the intervention application is allowed by the Chamber Judge, which permits the interveners to obtain documents produced and relied upon by the petitioner, they cannot make oral submissions, without the leave of the Court due to the bar under Order XVII Rule 3.

In the present case, the ideal recourse would have been to list the intervention application before the judge in Chambers. However, rather than referring the matter to the Chamber Judge in light of the Order V Rule 2(3), the Registry has rejected the application at the outset under Order XV Rule 5, which applies to petitions generally, and is seldom exercised to scuttle petitions at the outset. Once the Supreme Court Rules provide for a matter to be decided by the Chamber Judge for a preliminary scrutiny, the Registry should have exercised restraint in rejecting the application on the ground that it does not disclose any reasonable cause.

Secondly, the reasoning for the rejection of the intervention application is solely based on the finding that it discloses "no reasonable cause", which in turn, is entirely based on the purported observations of the Supreme Court in the CS Karnan case. Such approach by the Registry to rely upon a judicial precedent alone to reject the instant intervention application is totally misplaced as disclosure of "reasonable cause" in a particular case is always a question of fact, which cannot be decided based on precedent alone without reference to the facts.

To understand the meaning of ‘disclosure of reasonable cause’, it may be worthwhile to refer to Order VII, Rule 11(a) CPC (though the said Rule does not require disclosure of cause to be reasonable) which provides non-disclosure of “cause of action” as one of the grounds to reject a suit. The Supreme Court, while interpreting the scope of Order VII Rule 11 (a) CPC has consistently held that whether a plaint discloses a cause of action is a question of fact, and to determine the same, a court has to read the plaint as a whole taking the averments therein as correct, and if it discloses some cause of action which requires determination by the court, the mere fact that in the opinion of the judge, the plaintiff may not succeed or is insufficient to prove the facts, cannot be a ground for rejection of the plaint at the outset. (Liverpool & London SP& I Association Ltd. v. MV Sea Success I & Anr and Mayar (HK) Ltd. & Ors. v. Owners & Parties, Vessel M.V. Fortune Express & Ors )

Thus, the scope of non-disclosure of “reasonable cause” under Order XV Rule 5 of the Supreme Court Rules, 2013 is similar to order VII Rule 11(a) CPC. Disclosure of cause of action, being a question of fact, must be decided based on a reading of the petition alone for the purposes of lodgment under Order XV Rule 5. Further, what is reasonable in one case may be unreasonable on the other, which also needs a factual analysis.

The Registry in this case makes no observations on any of the averments in the intervention application, or the lack thereof, on account of which, in its understanding, the intervention application has been held to disclose “no reasonable cause”. Such an approach is not only legally unsound, but also arbitrary as the power exercised by the Registrar is a subordinate delegated power, unlike the judicial power of the Court, and must be therefore exercised liberally in favour of the petitioner, since it is in the interest of administration of justice that all matters must be decided on merits by a judicial forum.

Fourthly, there was no occasion for the Supreme Court in CS Karnan to interpret “reasonable cause” for maintaining an intervention application or the scope of Order XV Rule 5 of the Supreme Court Rules, 2013. The observation relied upon by the Registry in CS Karnan’s case was made in one of the interim orders dated February 13, 2017, when the Court was not deciding any question of law, and appear to be confined to the facts of the case, which were different from the facts of the instant intervention application. The text of the order dated 13.02.2017 passed by the Supreme court in C.S.Karnan’s case is as under:

“4. It is necessary to notice, that certain counsel, appeared on their own. We enquired from them, whether they were duly authorised by Sri Justice C.S. Karnan, and were in possession of a power of attorney to represent him. They had no such authorization. These learned Counsel submitted, that they proposed to file impleadment application on behalf of certain organization. The oral prayer for impleadment is rejected.

“5. Since contempt proceedings are a matter strictly between the Court and the alleged contemnor, anyone who enters appearance and disrupts the proceedings of this case in future, should understand that he/she can be proceeded against, in consonance with law. All that we need to say is, that no one should appear in this matter, without due consent and authorization.”

It is clear from the above that the Supreme Court made these observations in the context of some persons who had sought appearance on behalf of the alleged contemnor himself, that too, without his due authorization or power of attorney. No formal application for impleadment/intervention was filed and further no third parties were claiming independent rights in the subject matter of the contempt petition separately from the alleged contemnor, unlike the present case. Thus, there was no occasion for the Court to opine on the maintainability of an intervention application by third parties on their own behalf and not on behalf of the alleged contemnor.

A judgment cannot be read like a statute. Unless a decision declares, lays down and/or interprets any provision directly, there is no ratio of the case and the said decision ought not to be applied as a precedent in a later case by the Court (Union of India and Ors. v. Dhanwanti Devi and Ors), much less by the Registry. Thus, the observations in CS Karnan do not apply to the present intervention application at all.

Finally, it is interesting to note that even the plain reading of the observations of the CS Karnan case in their entirety as relied upon in the Registrar's order does not support the reasoning of the Registry. The Supreme Court in CS Karnan's case held that a contempt proceeding is "strictly between the court and an alleged contemnor and anyone who enters appearance and disrupts the proceedings of this case in future, should understand that he/she can be proceeded against, in consonance with law."

It is clear that the Supreme Court did not shut out all intervention/impleadment applications at the threshold even in that particular contempt petition, much less declare any general law against filing of intervention applications in contempt petitions. In fact, the foregoing observation shows that a third party may not be barred in all contempt proceedings if they do not cause disruption.

Thus, even following the reasoning in CS Karnan's case, the intervention application ought to have been allowed to be taken up before the Chamber Judge and the same has been erroneously lodged under Order XV Rule 5.

Further developments and lost right of appeal:

Meanwhile, after the rejection of the intervention application, the Supreme Court heard the alleged contemnor and reserved orders on the following day. Order XV Rule 5 allows the petitioner to make an appeal within 15 days of such rejection. Since the Supreme Court has now held Prashant Bhushan guilty for contempt, the interveners have lost the right to claim hearing in this case. Had the Supreme Court not passed a final judgment but proceeded to further continue the contempt proceedings on merits after admitting the same, it would have been interesting to see if this order of the Registry rejecting the intervention application, was taken in appeal before the Court

The author is an Advocate- on- Record, Supreme Court of India and practices before courts in Delhi. He may be reached at tahir@tahirsiddiqui.com . Views are personal.