#Columns: Intervention Culture and the Missing Regulations

Bar & Bench February 13 2018

Kanu Agrawal

The Supreme Court has seen a dramatic increase in the number of ‘intervention’ applications being filed before it. This practice of intervention is further accentuated in cases that have a large impact and are being reported in the print and digital media.

From Constitutional matters to group litigation (class actions), intervention applications are commonplace, with most Courts allowing persons/pleaders to address the Court with little to no prior assessment of the locus standi or the authorisation supposed to be provided in the prescribed format. Before adverting to the de-facto problems with this intervention culture, it is necessary to understand the law surrounding the issue.

The word ‘intervention’ has its origins in late Latin, interventionem, meaning an interposing, or simply, to come in between, to interrupt. The law, as a mechanism of inter se dispute resolution between parties, has welcomed the concept of intervention/impleadment with robust riders.

It must be noted that there is a difference between the concepts of impleadment and intervention. While impleadment results in addition of the applicant as a party, intervention merely allows the applicant to address the Court.

Under the criminal branch of the law, the concept is illusionary, with a clear distinction between the roles played by the complainant, the prosecution and the accused and it does not envisage the concept of intervention by other concerned or related parties.

Civil law, on the other hand, has a detailed doctrine for dealing with situations concerning addition or deletion of parties that may have a connection with the subject matter of the suit. The question therein is whether the person has any interest in the subject matter of the suit/proceedings pending before the Court.

This is commonly referred to as ‘the necessary and proper party’ doctrine relevant for the effectual and complete adjudication of all the questions involved in the suit/proceeding under sub-rule (2) of Rule 10 of Order 1 of the Code of Civil Procedure. A ‘proper party’ is to be distinguished from a ‘necessary party’, with the former being merely relevant, as opposed to the latter, which is indispensable.

Apart from the traditional civil and criminal axis, the writ remedy of a person is present under Article 226 and Article 32. As a general rule, the right to move to the Court is available to only those person(s) whose whose fundamental right/constitutional right is violated. Locus standi, as it is referred, is necessary before availing the writ remedy, otherwise the Court may rule that the person “lacks standing” and can dismiss the case without considering the merits.

The jurisprudence under Article 226 and Article 32 has given birth to the public interest litigation (PIL) route, which allows members of public, not necessarily a person with locus standi, to approach the Court for the reliefs sought therein. Considering the obvious public law element in the writ and PIL jurisdiction of the constitutional courts, the intervention applications filed therein are, in practice, allowed with a slight lower standard of scrutiny.

It may be noted that there often have been instances wherein affected parties have been denied the chance to intervene in writ petitions (and the SLPs arising therefrom) on the grounds of the parties merely being ‘proper parties’ and not ‘necessary parties’.

Courts have recently sought to curtail the expansive PIL jurisdiction and to impose certain restrictions. The Supreme Court is yet to adopt a similar cautious approach to the increasing number of interventions being filed in ‘high-profile’ matters.

As per the Supreme Court Rules, 2013, there is no particular provision/rule dealing with the interveners. Order I, Rule 2(1)(o) defines a ‘respondent’ to include an intervener. Further, per Order V Rule 2(3), an application for striking out or adding party or for intervention in a suit, appeal or other proceedings may be decided by a Single Judge sitting in Chambers. Order XVII Rule 3 states that,

in cases where intervention is allowed by the Court, the intervener or interveners shall be entitled to receive documents produced and relied upon by the petitioner(s), unless directed otherwise by the Court”.

It must be noted herein that the Supreme Court Rules further contemplate that even parties not present before the High Court/Appellate Tribunal can challenge an order passed therein, along with an accompanying application seeking permission to file an SLP. Therefore, it is not as if the parties affected by orders of the lower court who weren’t parties therein are left without remedy.

While these Rules provide a tacit approval to the concept of intervention, it is the second part of Order XVII Rule 3 that creates the confusion. The said Rule states that,

the intervener(s) may make oral submissions with the leave of the Court”.

Therefore, while Order V Rule 2(3) states that the intervention is to be decided by the Chamber judge, Order XVII Rule 3 contemplates the Court allowing interveners to make oral submissions. In effect, intervention applications are sometimes listed before Chamber judges and simultaneously listed before Courts without their being allowed by the Chamber judges.

The misuse of intervention applications becomes significant when the same is being exercised at the highest appellate court in the country, in proceedings wherein orders have already been passed by lower courts wherein the interveners were not present. Otherwise, there have been numerous instances wherein lawyers seek to file interventions in Constitution Bench matters, merely to get an audience from the Court, without necessarily contributing to the process.

Another ingenious approach to seeking attention of the Court, without actually representing affected parties, is by filing “writ” petitions/PILs on Constitutional issues wherein the Court has already referred the same question to a Constitutional bench. Further, in order to overcome the jurisdictional standard of the Apex Court, intervention applications/similar writs are often filed only after notice has been issued to relevant government agencies in writs which have been filed by genuinely affected parties or NGOs.

Alternatively, interventions are often filed through ‘home-grown NGOs’ so that it is easy to ‘generate’ a vakalatnama and argue locus in matters of public importance. This practice of interventions is further worsened when lawyers representing outside vested interests, merely to pursue media attention, seek to hijack the proceedings before the Court.

The result is that lawyers often directly address the Courts, despite being interveners and without establishing any locus standi. It is admitted that there may be some circumstances wherein the intervention applicant has substantially helped in adjudicating the lis, but the Courts’ general laxity towards such applications and generosity in providing an audience, is also being misused.

The Courts, especially the Apex Court, must ideally be circumspect in granting leave to parties not present before the High Court or parties not necessarily relevant for adjudicating the lis before the Court. Alarmingly, it has sometimes led to the hijacking of proceedings or unwarranted delay in Courts, resulting in abuse of the process of the Court. Clearly, the rules regulating intervention applications in the Supreme Court need to be more stringent in order to protect the orderly functioning of adversarial process.

Ideally, the Supreme Court Rules must lay down cogent and rigorous checks on such intervention applications. Further, it would be logical if intervention applications are first listed before the Chamber judge, and only if it is allowed, the audience of the Court can be sought.

Disclaimer: The views expressed in this article are of the author and Bar & Bench does not necessarily hold the same views. Bar & Bench does not take responsibility for the same.

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