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Report No. 54

Chapter 27A

Suits Involving Substantial Questions of Law as to The Interpretation of The Constitution


27A.1. Order 27A, which deals with suits involving constitutional questions, was inserted in 1942 by amending Act 23 of 1942. As originally enacted, it was intended to provide for suits involving substantial questions of law as to the interpretation of the Government of India Act1. After the Constitution, it has been adapted, so as to deal with suits involving substantial questions of law as to the interpretation of the Constitution.

1. Compare section 205 of the Government of India Act, 1935.

27A.2. Its genesis is of interest. In a case which was decided by the Federal Court1, the question arose whether, during the hearing of an appeal in which the constitutional validity of an Act of the Provincial Legislature was impugned, the High Court had the power to make the Province of U.P., a party under the provisions of the Code of Civil Procedure, 1908 as it then stood. While the Federal Court answered this question in the affirmative, the Chief Justice expressed certain doubts and suggested that the matter "might well engage the attention of the Central Legislature": for, if those doubts were justified, "private persons could, by a private settlement of their dispute, or even by collusion, prevent a Provincial Government from obtaining a decision of the Federal Court on issues of the highest importance."2

1. U.P. v. Antiql Begum, 1940 FCR 110: AIR 1941 FC 16.

2. Statement of Objects and Reasons, dated 26th August, 1942 to the Amendment Bill of 1942.

27A.3. The Amendment Act accordingly sought to provide that in any suit or appeal in which it appears to the Court that a substantial question of law as to the interpretation of the Government of India Act or an Order-in-Council made thereunder is involved, the Court shall first give notice to the Advocate-General of India or of the Province as the case may require, and may, if satisfied that it is necessary or desirable for the satisfactory determination of the question so to do, order that the Government concerned shall be added as a party.

27A.4. One object of Order 27A was, thus, obviously to prevent collusion between private parties who conspire to obtain as a ruling about a constitutional question without the court having an opportunity to hear the Government.

27A.5. The provision that the Court must give notice to the Advocate-General has been adopted in substance from a Canadian Statute1. As to the provision in Order 27A, rule 3, barring costs, the reason seems to be this. A question may arise as to the Government's right to, or liability for, costs in proceedings in which the Advocate-General may appear or in which the Government may be impleaded as a party in accordance with these provisions. As the Advocate-General or the Government would, in such cases, come in more to protect their own interests than for the purpose of making the action effective between the original parties, it seems to have been considered reasonable that ordinarily the Government should have no right to, or liability for, costs in the first instance.

If, after the Government is added as a party, the case is decided one way or the other, further proceedings by way of appeal by the Government or any of the original parties will, of course, be governed as to costs by the general principles governing all actions. In some cases, however, special considerations may arise, either because of the manner in which the Government or one or other of the parties conducts the case, or because of the special nature of the case. In this special class of cases, the Court can depart from the general principle above indicated, and make special order as to costs.

1. See the section in the Judicature Act, Ontario, infra.

27A.6. In Canada, there are similar provisions. The Judicature Act1 in Ontario, for example, provides as follows2:-

"20. (1) In any action in which the Attorney-General for Canada or the Attorney-General for Ontario is a party plaintiff and the other Attorney-General is a party defendant, the Court has jurisdiction to make a declaration as to the validity in whole or in party of any statute of the Legislature or any statute of the Parliament of Canada that by its terms purports to have force in Ontario, though no further relief be prayed or sought.

(2) The judgement in any such action is subject to appeal as in ordinary cases 1.

33. (1) Where in an action or other proceeding the constitutional validity of any Act or enactment of the Parliament of Canada or of the Legislature is brought in question, it shall not be adjudged to be invalid until after notice has been given to the Attorney-General for Canada and to the Attorney-General for Ontario.

(2) The notice shall state what Act or part of an Act is in question and the day on which the question is to be argued, and shall give such other particulars as are necessary to show the constitutional point proposed to be argued.

(3) Subject to the rules, the notice shall be served six days before the day named for the argument.

(4) The Attorney-General for Canada and the Attorney-General for Ontario are entitled as of right to be heard either in person or by counsel notwithstanding that the Crown is not a party to the action or proceedings.

(5) Where in an action or proceeding to which this section applies the Attorney-General for Canada or the Attorney-General for Ontario appears in person or by counsel, each shall be deemed to be a party to the action or proceeding for the purpose of an appeal from any adjudication as to the constitutional validity of any Act or enactment in question in the action or proceeding."

1. The Judicature Act, R.S.O. 1960 C 197 (Ontario, Canada).

2. Laskin Canandian Constitutional Law, (1960), p. 147.

27A.7. For comparable legislation see the Constitutional Questions Act, R.S.A. 1955, c. 55; The Judicature Act, R.S.A. 1955, c. 164, s. 31; Constitutional Questions Determination Act, R.S.B.C. 1948, c. 66, am. 1953, c. 11; An Act for Expediting the Decision of Constitutional and Other Provincial Questions, R.S.M. 1954, c. 44; The Queen's Bench Act, R.S.M. 1954, c. 52, s. 72; Judicature Act, R.S.N.B. 1952, c. 120. ss. 24 and 24A; The Judicature Act, R.S.M.S. 1952, clause 114, section 84 (enacted by 1953, No, 33); Constitutional Questions Act, R.S.N.S. 1954, c. 50; The Judicature Act, R.S.P.E.J. 1951, c. 79, s. 39; Constitutional Questions Act, R.S.S. 1953, c. 78.

The Code of Civil Procedure, 1908 Back

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