Kalpana Mehta And Ors. vs Union Of India And Ors.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 558 OF 2012

Kalpana Mehta and others …Petitioner(s)

Versus

Union of India and others …Respondent(s)

WITH

WRIT PETITION (CIVIL) NO. 921 OF 2013

JUDGMENT

Dipak Misra, CJI. [For himself and A.M. Khanwilkar, J.]

INDEX

S. No. Heading Page No.

A. Introduction 3 B. The factual background 4 B.1 The Reference 6 C. Contentions of the petitioners 8 D. Signature Not Verified Contentions of the respondents 12 Digitally signed by E. Supremacy of the Constitution 14 DEEPAK GUGLANI Date: 2018.05.09 13:32:34 IST Reason:

F. Constitutional limitations upon the 17 legislature 2 G. Doctrine of separation of powers 21 H. Power of judicial review 28 I. Interpretation of the Constitution – The 34 nature of duty cast upon this Court I.1 Interpretation of fundamental rights 40 I.2 Interpretation of other 42 constitutional provisions J. A perspective on the role of Parliamentary 48 Committees K. International position of Parliamentary 54 Committees K.1 Parliamentary Committees in 54 England K.2 Parliamentary Committees in United 55 States of America K.3 Parliamentary Committees in 58 Canada K.4 Parliamentary Committees in 59 Australia L. Parliamentary Committees in India 60 L.1 Rules of Procedure and Conduct of 65 Business in Lok Sabha M. Parliamentary privilege 71 M.1 Parliamentary privilege under the 72 Indian Constitution M.2 Judicial review of parliamentary 81 proceedings and its privilege N. Reliance on parliamentary proceedings as 91 external aids O. Section 57(4) of the Indian Evidence Act 101 P. The decisions in which parliamentary 106 standing committee report/s have been referred to Q. Conclusions 113 3

A. Introduction

In a parliamentary democracy where human rights are

placed on a high pedestal and a rights-oriented Constitution is

sought to be interpreted, it becomes the obligation on the part of

the Constitutional Courts to strike a balance between emphatic

hermeneutics on progressive perception of the provisions of the

Constitution on the one hand and the self-imposed judicial

restraint founded on self-discipline on the other hand, regard

being had to the nature and character of the article that falls for

interpretation and its constitutional vision and purpose. The

Courts never allow a constitutional provision to be narrowly

construed keeping in view the principle that the Constitution is a

living document and organic which has the innate potentiality to

take many a concept within its fold. The Courts, being alive to

their constitutional sensibility, do possess a progressive outlook

having a telescopic view of the growing jurisprudence.

Nonetheless, occasions do arise where the constitutional

consciousness is invoked to remind the Court that it should not

be totally oblivious of the idea, being the final arbiter of the

Constitution, to strike the requisite balance whenever there is a

necessity, for the founding fathers had wisely conceived the same 4

in various articles of the grand fundamental document. In the

present case, this delicate balance is the cardinal issue, as it

seems to us, and it needs to be resolved in the backdrop of both

the principles. The factual score that has given rise to the present

reference to be dealt with by us is centered on the issue as to

whether a Parliamentary Standing Committee (PSC) report can be

placed reliance upon for adjudication of a fact in issue and also

for what other purposes it can be taken aid of. That apart, to

arrive at the ultimate conclusion, we will be required to navigate

and steer through certain foundational fundamentals which take

within its ambit the supremacy of the Constitution, constitutional

limitations, separation of powers, power of judicial review and

self-imposed restraint, interpretation of constitutional provisions

in many a sphere, the duty of parliamentary committee in various

democracies and also certain statutory provisions of the Indian

Evidence Act, 1872 (for brevity, ―the Evidence Act‖).

B. The factual background

2. The initial debate and deliberation before the two-Judge

Bench that was hearing the instant Writ Petitions had focussed

around the justifiability of the action taken by the Drugs

Controller General of India and the Indian Council of Medical 5

Research (ICMR) pertaining to the approval of a vaccine, namely,

Human Papilloma Virus (HPV) manufactured by the Respondent

No. 7, M/s. GlaxoSmithKline Asia Pvt. Ltd., and the Respondent

No. 8, MSD Pharmaceuticals Private Limited, for preventing

cervical cancer in women and the experimentation of the vaccine

was done as an immunisation by the Governments of Gujarat

and Andhra Pradesh (before bifurcation, the State of Andhra

Pradesh, eventually the State of Andhra Pradesh and the State of

Telangana) with the charity provided by the Respondent No. 6,

namely, PATH International. Apart from the aforesaid issue, the

grievance with regard to the untimely death of certain persons

and the grant of compensation on the foundation that there had

been experiment of the drugs on young girls who had not reached

the age of majority without the consent of their

parents/guardians was also highlighted. Be it stated, it was also

projected that women, though being fully informed, had become

victims of the said vaccination. In essence, the submissions were

advanced pertaining to the hazards of the vaccination and

obtaining of consent without making the persons aware of the

possible after effects and the consequences of the administration 6

of such vaccine. The two-Judge Bench had passed certain orders

from time to time with which we are not presently concerned.

3. In the course of hearing before the two-Judge Bench,

learned counsel for the writ petitioners had invited the attention

of the Bench to a report of the Parliamentary Standing Committee

(PSC) and the Court had directed the Governments to file

affidavits regarding the steps taken keeping in view the various

instructions given from time to time including what has been

stated in the report of the PSC. Certain affidavits were filed by the

respondents stating about the safety of the vaccination and the

steps taken to avoid any kind of hazard or jeopardy. That apart,

the allegations made in the writ petitions were also controverted.

B.1 The Reference

4. When the matter stood thus, learned senior counsel for the

respondent No. 8, MSD Pharmaceuticals Pvt. Ltd., and learned

Additional Solicitor General appearing for the Union of India

submitted that this Court, while exercising the power of judicial

review or its expansive jurisdiction under Article 32 of the

Constitution of India dealing with public interest litigation,

cannot advert to the report of the PSC and on that basis, exercise

the power of issue of a writ in the nature of mandamus and issue 7

directions. The assistance of learned Attorney General was also

sought keeping in view the gravity of the issue involved. After

hearing the matter, the two-Judge Bench in Kalpana Mehta

and others v. Union of India and others 1 thought it

appropriate to refer it to a Constitution Bench under Article

145(3) of the Constitution and in that regard, the Division Bench

expressed thus:-

―72. The controversy has to be seen from the perspective of judicial review. The basic principle of judicial review is to ascertain the propriety of the decision making process on the parameters of reasonableness and propriety of the executive decisions. We are not discussing about the parameters pertaining to the challenge of amendments to the Constitution or the constitutionality of a statute. When a writ of mandamus is sought on the foundation of a factual score, the Court is required to address the facts asserted and the averments made and what has been stated in oppugnation. Once the Court is asked to look at the report, the same can be challenged by the other side, for it cannot be accepted without affording an opportunity of being heard to the Respondents. The invitation to contest a Parliamentary Standing Committee report is likely to disturb the delicate balance that the Constitution provides between the constitutional institutions. If the Court allows contest and adjudicates on the report, it may run counter to the spirit of privilege of Parliament which the Constitution protects.

73. As advised at present, we are prima facie of the view that the Parliamentary Standing Committee

1 (2017) 7 SCC 307 8

report may not be tendered as a document to augment the stance on the factual score that a particular activity is unacceptable or erroneous.

However, regard being had to the substantial question of law relating to interpretation of the Constitution involved, we think it appropriate that the issue be referred to the Constitution Bench under Article 145(3) of the Constitution.‖

5. Thereafter, the two-Judge Bench framed the following

questions for the purpose of reference to the Constitution Bench:-

―73.1. (i) Whether in a litigation filed before this Court either under Article 32 or Article 136 of the Constitution of India, the Court can refer to and place reliance upon the report of the Parliamentary Standing Committee?

73.2. (ii) Whether such a Report can be looked at for the purpose of reference and, if so, can there be restrictions for the purpose of reference regard being had to the concept of parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive?‖

Because of the aforesaid reference, the matter has been

placed before us.

C. Contentions of the petitioners

6. At the very outset, it is essential to state that the argument

has been advanced by the learned counsel appearing for the

petitioners that the lis raised neither relates to parliamentary

privileges as set out in Article 105 of the Constitution nor does it

pertain to the concept of separation of powers nor does it require 9

any adjudication relating to the issue of mandamus for the

enforcement of the recommendations of the PSC report. What is

suggested is that the Court should not decide the controversy as

per the facts stated in the report of the PSC treating it to be

conclusive; rather the Court should take judicial notice of the

same as provided under Section 57(4) of the Evidence Act. It is

also urged that the Court has the jurisdiction under Article 32 of

the Constitution to conduct an independent inquiry being

assisted by the Court Commissioners and also give direction for

production of the documents from the executive. It is put forth in

simplest terms that the petitioners are entitled to bring the facts

stated in the report to the notice of the Court and persuade the

Court to analyse the said facts and express an opinion at

variance with the report, for the proceedings in the Court are

independent of the PSC report which only has persuasive value.

Emphasising the concept of ―judicial notice‖, it is propounded

that the scope of judicial review does not rest on a narrow

spectrum and the Court under the Constitution is within its

rights to draw factual and legal conclusions on the basis of wide

spectrum of inputs and materials including what has been stated

in the PSC report.

10

7. The aforesaid submission, as is noticeable, intends to

convey that no constitutional debate should be raised with regard

to reliance on the report of PSC and the Court should decide

without reference to the concepts of parliamentary privilege,

separation of powers and comity of institutions. The argument,

in entirety, put forth by the petitioners is not founded on the said

bedrock inasmuch as Mr. Colin Gonsalves and Mr. Anand

Grover, learned senior counsel appearing for the petitioners, have

argued that the Constitutional Court in exercise of the power of

judicial review can take note of at the report of the PSC and also

rely upon the said report within the constitutional parameters

and the proposition does not invite any constitutional

discordance. It is further contended that the concept of

parliamentary privilege is enshrined under Article 105 of the

Constitution which guarantees freedom of speech within the

House during the course of the proceedings of the House and the

said freedom has been conferred to ensure that the members of

Parliament express themselves freely in Parliament without fear

of any impediment of inviting any civil or criminal proceedings.

The initial part of clause (2) of Article 105 confers, inter alia,

immunity to the members of Parliament from civil and criminal 11

proceedings before any court in respect of ‗anything said‘ or ‗any

vote given‘ by members of Parliament in the Parliament or any

Committee thereof.

8. It is argued that this being the position, the factual score of

the instant case does not invite the wrath of violation of

parliamentary privilege which Article 105 seeks to protect. It is

because the limited issue that emerges in the present case is to

see the Parliamentary Standing Committee reports. Thus,

looking at the report for arriving at the truth by the Court in its

expansive jurisdiction under Article 32 of the Constitution

remotely touches the concept of privilege under Article 105 of the

Constitution. It is further canvassed that the facts that have been

arrived at by the Parliamentary Committee are of immense

assistance for the adjudication of the controversy in question and

in such a situation, it is crystal clear that the purpose of the

petitioners is not to file a civil or criminal case against any

member of the Parliament or any member of the Standing

Committee. Therefore, the violation of parliamentary privilege

does not arise.

9. Learned counsel for the petitioners would contend that this

Court is neither called upon to comment expressly or otherwise 12

on the report nor a writ of mandamus has been sought for

enforcement of the recommendations in the report. It is brought

on record so that the Court can look at the facts stated therein

and arrive at a just conclusion in support of other facts.

D. Contentions of the respondents

10. Both the facets of the arguments advanced by the learned

counsel appearing for the petitioners have been seriously

opposed by Mr. K.K. Venugopal, learned Attorney General for

India, Mr. Harish N. Salve, Mr. Gourab Banerji and Mr. Shyam

Divan, learned senior counsel appearing for the contesting

respondents. Their basic propositions are grounded, first on

constitutional provisions which prescribe the privilege of the

Parliament and how the report of a PSC is not amenable to

contest and the limited reliance that has been placed by this

Court on the report of PSC or the speech of a Minister on the

floor of the legislature only to understand the provisions of a

statute in certain context and second, the limited interpretation

that is required to be placed on the words ―judicial notice‖ as

used in Section 57(4) of the Evidence Act regard being had to the

context. It is urged by them that allowing contest and criticism of 13

the report would definitely create a stir in the constitutional

balance.

11. It is also highlighted that in a public interest litigation, the

Court has relaxed the principle of locus standi, encouraged

epistolary jurisdiction, treated the petitioner as a relator, required

the parties on certain occasions not to take an adversarial

position and also not allowed technicalities to create any kind of

impediment in the dispensation of justice but the said category of

cases cannot be put on a high pedestal to create a concavity in

the federal structure of the Constitution or allow to place a

different kind of interpretation on a constitutional provision

which will usher in a crack in the healthy spirit of the

Constitution.

12. We shall refer to the arguments and the authorities cited by

both sides in the course of our deliberation. Suffice it to mention,

the fundamental analysis has to be done on the base of the

constitutional provisions, the constitutional values and the

precedents. To address the issue singularly from the prism of

Section 57(4) of the Evidence Act, we are afraid, will tantamount

to over simplification of the issue. Therefore, the said aspect shall

be addressed to at the appropriate stage.

14

E. Supremacy of the Constitution

13. The Constitution of India is the supreme fundamental law

and all laws have to be in consonance or in accord with the

Constitution. The constitutional provisions postulate the

conditions for the functioning of the legislature and the executive

and prescribe that the Supreme Court is the final interpreter of

the Constitution. All statutory laws are required to conform to

the fundamental law, that is, the Constitution. The functionaries

of the three wings, namely, the legislature, the executive and the

judiciary, as has been stated in His Holiness Kesavananda

Bharati Sripadagalvaru v. State of Kerala and another 2,

derive their authority and jurisdiction from the Constitution. The

Parliament has the exclusive authority to make laws and that is

how the supremacy of the Parliament in the field of legislation is

understood. There is a distinction between parliamentary

supremacy in the field of legislation and constitutional

supremacy. The Constitution is the fundamental document that

provides for constitutionalism, constitutional governance and

also sets out morality, norms and values which are inhered in

various articles and sometimes are decipherable from the

2 AIR 1973 SC 1461 : (1973) 4 SCC 225 15

constitutional silence. Its inherent dynamism makes it organic

and, therefore, the concept of ―constitutional sovereignty‖ is

sacrosanct. It is extremely sacred and, as stated earlier, the

authorities get their powers from the Constitution. It is ―the

source‖. Sometimes, the constitutional sovereignty is described

as the supremacy of the Constitution.

14. In State of Rajasthan and others v. Union of India and

others 3 , Bhagwati, J. (as his Lordship then was), in his

concurring opinion, stated that the Constitution is suprema lex,

the paramount law of the land and there is no department or

branch of government above or beyond it. The learned Judge,

proceeding further, observed that every organ of the government,

be it the executive or the legislature or the judiciary, derives its

authority from the Constitution and it has to act within the limits

of its authority. Observing about the power of this Court, he

ruled that this Court is the ultimate interpreter of the

Constitution and to this Court is assigned the delicate task of

determining what is the power conferred on each branch of the

Government, whether it is limited, and if so, what are the limits

and whether any action of that branch transgresses such limits.

3 (1977) 3 SCC 592 16

He further observed that it is for this Court to uphold the

constitutional values and to enforce the constitutional

limitations, for it is the essence of the rule of law. Elaborating the

said concept, Sabharwal, C.J. in I.R. Coelho (Dead) by LRs. v.

State of T.N.4, speaking for the nine-Judge Bench, held that the

supremacy of the Constitution embodies that constitutional

bodies are required to comply with the provisions of the

Constitution. It also mandates a mechanism for testing the

validity of legislative acts through an independent organ, viz., the

judiciary.

15. Be it noted, in the aforesaid case, a distinction was drawn

between parliamentary and constitutional sovereignty. Speaking

on the same, the Bench opined that our Constitution was framed

by a Constituent Assembly which was not Parliament. It is in the

exercise of law-making power by the Constituent Assembly that

we have a controlled Constitution. Articles 14, 19 and 21

represent the foundational values which form the bedrock of the

rule of law. These are the principles of constitutionality which

form the basis of judicial review apart from the rule of law and

separation of powers.

4 (2007) 2 SCC 1 17

16. Thus, the three wings of the State are bound by the doctrine

of constitutional sovereignty and all are governed by the

framework of the Constitution. The Constitution does not accept

transgression of constitutional supremacy and that is how the

boundary is set.

F. Constitutional limitations upon the legislature

17. The law making power of the Parliament or State legislature

is bound by the concept of constitutional limitation. It is

necessary to appreciate what precisely is meant by constitutional

limitation. In State of West Bengal v. Anwar Ali Sarkar5, this

Court, in the context of freedom of speech and expression

conferred by Article 19(1)(a) of the Constitution, applied the

principle of constitutional limitation and opined that where a law

purports to authorise the imposition of restrictions on a

fundamental right in a language wide enough to cover

restrictions both within and without the limits of constitutionally

permissible legislative action affecting such right, it is not

possible to uphold it even so far as it may be applied within the

constitutional limits, as it is not severable. So long as the

possibility of its being applied for purposes not sanctioned by the

5 1952 SCR 284 : AIR 1952 SC 75 18

Constitution cannot be ruled out, it must be held to be wholly

unconstitutional and void. The emphasis was laid on

constitutional limitation. In K.C. Gajapati Narayan Deo v.

State of Orissa 6 , the Court adverted to the real purpose of

legislation and colourable legislation and, in that context,

expressed that when a scrutiny is made, it may appear that the

real purpose of a legislation is different from what appears on the

face of it. It would be a colourable legislation only if it is shown

that the real object is different as a consequence of which it lies

within the exclusive field of another legislature.

18. Dwelling upon the legal effect of a constitutional limitation

of legislative power with respect to a law made in derogation of

that limitation, the Court in Deep Chand v. State of Uttar

Pradesh and others7 reproduced a passage from Cooley‘s book

on ―Constitutional Limitation‖ (Eighth Edition, Volume I) which is

to the following effect:-

―From what examination has been given to this subject, it appears that whether a statute is constitutional or not is always a question of power; that is, a question whether the legislature in the particular case, in respect to the subject-matter of the act, the manner in which its object is to be accomplished, and the mode of enacting it, has kept

6 1954 SCR 1 : AIR 1953 SC 375 7 1959 Supp. (2) SCR 8 : AIR 1959 SC 648 19

within the constitutional limits and observed the constitutional conditions.‖

Thereafter, the Constitution Bench referred to the

observations of the Judicial Committee in Queen v. Burah 8

wherein it was observed that whenever a question as to whether

the legislature has exceeded its prescribed limits arises, the

courts of justice determine the said question by looking into the

terms of the instrument which created the legislative powers

affirmatively and which restricted the said powers negatively.

The Constitution Bench also referred to the observations of the

Judicial Committee in Attorney-General for Ontario v.

Attorney-General for Canada 9 which were later on lucidly

explained by Mukherjea, J., (as he then was) in K.C. Gajapati

Narayan Deo (supra) to the effect that if the Constitution

distributes the legislative powers amongst different bodies which

have to act within their respective spheres marked out by specific

legislative entries or if there are limitations on the legislature in

the form of fundamental rights, the question will arise as to

whether, in a particular case, the legislature has transgressed the

8 (1878) LR 5 I.A. 178 9 (1912) AC 571 20

limits of its constitutional power in respect of the subject matter

of the statute or in the method of making it.

19. Recently, in Binoy Viswam v. Union of India and others10

this Court, while dealing with the exercise of sovereign power of

the Centre and the States in the context of levy of taxes, duties

and fees, observed that the said exercise of power is subject to

constitutional limitation. It is imperative to remember that our

Constitution has, with the avowed purpose, laid down the powers

exercised by the three wings of the State and in exercise of the

said power, the authorities are constitutionally required to act

within their spheres having mutual institutional respect to realize

the constitutional goal and to see that there is no constitutional

transgression. The grammar of constitutional limitation has to be

perceived as the constitutional fulcrum where control operates

among the several power holders, that is, legislature, executive

and judiciary. It is because the Constitution has created the

three organs of the State.

20. Under the Constitution, the Parliament and the State

legislatures have been entrusted with the power of law making.

Needless to say, if there is a transgression of the constitutional

10 (2017) 7 SCC 59 21

limitation, the law made by the legislature has to be declared

ultra vires by the Constitutional Courts. That power has been

conferred on the Courts under the Constitution and that is why,

we have used the terminology ―constitutional sovereignty‖. It is

an accepted principle that the rule of law constitutes the core of

our Constitution and it is the essence of the rule of law that the

exercise of the power by the State, whether it be the legislature or

the executive or any other authority, should be within the

constitutional limitations.

G. Doctrine of separation of powers

21. Having stated about constitutional sovereignty and

constitutional limitation, we may presently address the issue as

to how the Constitution of India has been understood in the

context of division of functions of the State. In Smt. Indira

Nehru Gandhi v. Shri Raj Narain and another11, Beg, J., in

his concurring opinion, quoted what M.C. Setalvad, a

distinguished jurist of India, had said in ―The Common Law in

India‖ (The Hamlyn Lectures), 12th Series, 1960. We think it

appropriate to reproduce the paragraph in entirety:-

―The Constitution divides the functions of the Union into the three categories of executive, legislative and

11 1975 Supp. SCC 1 22

judicial functions following the pattern of the British North America Act and the Commonwealth of Australia Act. Though this division of functions is not based on the doctrine of separation of powers as in the United States yet there is a broad division of functions between the appropriate authorities so that, for example, the legislature will not be entitled to arrogate to itself the judicial function of adjudication. ‗The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.‘ (See: Rai Saheb Ram Jawaya Kapur v. State of Punjab 12 ). This will no doubt strike one accustomed to the established supremacy of Parliament in England as unusual. In the course of its historical development Parliament has performed and in a way still performs judicial functions. Indeed the expression ‗Court of Parliament‘ is not unfamiliar to English lawyers. However, a differentiation of the functions of different departments is an invariable feature of all written Constitutions. The very purpose of a written Constitution is the demarcation of the powers of different departments of Government so that the exercise of their powers may be limited to their particular fields. In countries governed by a written Constitution, as India is, the supreme authority is not Parliament but the Constitution. Contrasting it with the supremacy of Parliament, Dicey has characterised it as the supremacy of the Constitution.‖ [Emphasis added]

12 AIR 1955 SC 549 : (1955) 2 SCR 225 23

22. The doctrine of separation of powers has become concrete in

the Indian context when the Court in Kesavananda Bharati’s

case treated the same as a basic feature of the Constitution of

India. In State of Himachal Pradesh v. A Parent of a Student

of Medical College, Simla and others13, this Court ruled that it

is entirely a matter for the executive branch of the Government to

decide whether or not to introduce any particular legislation. Of

course, any member of the legislature can also introduce

legislation but the Court certainly cannot mandate the executive

or any member of the legislature to initiate legislation, howsoever

necessary or desirable the Court may consider it to be. That is

not a matter which is within the sphere of the functions and

duties allocated to the judiciary under the Constitution. The

Court further observed that it cannot usurp the functions

assigned to the legislature under the Constitution and it cannot

even indirectly require the executive to introduce a particular

legislation or the legislature to pass it or assume to itself a

supervisory role over the law-making activities of the executive

and the legislature. In State of Tamil Nadu v. State of Kerala

and another 14 , this Court, laying down the principle of

13 (1985) 3 SCC 169 14 (2014) 12 SCC 696 24

separation of powers, stated that even without express provision

of the separation of powers, the doctrine of separation of powers

is an entrenched principle in the Constitution of India. The

doctrine of separation of powers informs the Indian constitutional

structure and it is an essential constituent of the rule of law.

23. In Bhim Singh v. Union of India and others15, the Court,

for understanding the concept of separation of powers, observed

that two aspects must be borne in mind. One, that separation of

powers is an essential feature of the Constitution and secondly,

that in modern governance, a strict separation is neither possible

nor desirable. Nevertheless, till this principle of accountability is

preserved, there is no violation of separation of powers and the

same is founded on keen scrutiny of the constitutional text. The

Constitution does not strictly prohibit overlap of functions and, in

fact, provides for some overlap in a parliamentary democracy.

What it prohibits is such exercise of function of the other branch

which results in wresting away of the regime of constitutional

accountability.

24. In Mansukhlal Vithaldas Chauhan v. State of Gujarat16,

Federation of Railway Officers Association and others v.

15 (2010) 5 SCC 538 16 AIR 1997 SC 3400 : (1997) 7 SCC 622 25

Union of India 17 and State of Maharashtra and others v.

Raghunath Gajanan Waingankar 18 , the Court applied the

principle of restraint, acknowledging and respecting the

constitutional limitation upon the judiciary to recognize the

doctrine of separation of powers and restrain itself from entering

into the domain of the legislature. Elaborating further, this Court

in Divisional Manager, Aravali Golf Club and another v.

Chander Hass and another 19 observed that under our

constitutional scheme, the Legislature, Executive and Judiciary

have their own broad spheres of operation and each organ must

have respect for the others and must not encroach into each

others‘ domain, otherwise the delicate balance in the Constitution

will be upset, and there will be a reaction.

25. In Asif Hameed and others v. State of Jammu and

Kashmir and others20, the Court observed that the Constitution

makers have meticulously defined the functions of various organs

of the State. The Legislature, Executive and Judiciary have to

function within their own spheres demarcated under the

Constitution. It further ruled that the Constitution trusts the

17 (2003) 4 SCC 289 : AIR 2003 SC 1344 18 AIR 2004 SC 4264 19 (2008) 1 SCC 683 20 AIR 1989 SC 1899 26

judgment of these organs to function and exercise their discretion

by strictly following the procedure prescribed therein. The

functioning of democracy depends upon the strength and

independence of each of its organs. The Legislature and the

Executive, the two facets of people's will, have all the powers

including that of finance. The judiciary has no power over the

sword or the purse. Nonetheless, it has power to ensure that the

aforesaid two main organs of the State function within the

constitutional limits. It is the sentinel of democracy. Judicial

review is a powerful weapon to restrain unconstitutional exercise

of power by the legislature and the executive. The expanding

horizon of judicial review has taken in its fold the concept of

social and economic justice. The exercise of powers by the

legislature and executive is subject to judicial restraint and the

only check on the exercise of power by the judiciary is the self

imposed discipline of judicial restraint.

26. In I.R. Coelho (supra), adverting to the issue of separation

of powers, the nine-Judge Bench referred to the basic structure

doctrine laid down in Kesavananda Bharati (supra) by the

majority and the reiteration thereof in Indira Nehru Gandhi 27

(supra) and reproduced a passage from Alexander Hamilton‘s

book ―The Federalist‖ and eventually held:-

―67. The Supreme Court has long held that the separation of powers is part of the basic structure of the Constitution. Even before the basic structure doctrine became part of constitutional law, the importance of the separation of powers on our system of governance was recognised by this Court in Special Reference No. 1 of 1964.‖

27. From the above authorities, it is quite vivid that the concept

of constitutional limitation is a facet of the doctrine of separation

of powers. At this stage, we may clearly state that there can really

be no strait-jacket approach in the sphere of separation of powers

when issues involve democracy, the essential morality that flows

from the Constitution, interest of the citizens in certain spheres

like environment, sustenance of social interest, etc. and

empowering the populace with the right to information or right to

know in matters relating to candidates contesting election. There

can be many an example where this Court has issued directions

to the executive and also formulated guidelines for facilitation

and in furtherance of fundamental rights and sometimes for the

actualization and fructification of statutory rights. 28

H. Power of judicial review

28. While focussing on the exercise of the power of judicial

review, it has to be borne in mind that the source of authority is

the Constitution of India. The Court has the adjudicating

authority to scrutinize the limits of the power and transgression

of such limits. The nature and scope of judicial review has been

succinctly stated in Union of India and another v. Raghubir

Singh (Dead) by LRs. etc.21 by R.S. Pathak, C.J. thus:-

―….. The range of judicial review recognised in the superior judiciary of India is perhaps the widest and the most extensive known to the world of law. … With this impressive expanse of judicial power, it is only right that the superior courts in India should be conscious of the enormous responsibility which rest on them. This is specially true of the Supreme Court, for as the highest Court in the entire judicial system the law declared by it is, by Article 141 of the Constitution, binding on all courts within the territory of India.

And again:-

―Legal compulsions cannot be limited by existing legal propositions, because there will always be, beyond the frontiers of the existing law, new areas inviting judicial scrutiny and judicial choice-making which could well affect the validity of existing legal dogma. The search for solutions responsive to a changed social era involves a search not only among competing propositions of law, or competing versions of a legal proposition, or the modalities of an indeterminacy such as ‗fairness‘ or

21 (1989) 2 SCC 754 29

‗reasonableness‘, but also among propositions from outside the ruling law, corresponding to the empirical knowledge or accepted values of present time and place, relevant to the dispensing of justice within the new parameters.‖

The aforesaid two passages lay immense responsibility on

the Court pertaining to the exercise of the power keeping in view

the accepted values of the present. An organic instrument

requires the Court to draw strength from the spirit of the

Constitution. The propelling element of the Constitution

commands the realization of the values. The aspiring dynamism

of the interpretative process also expects the same.

29. This Court has the constitutional power and the authority

to interpret the constitutional provisions as well as the statutory

provisions. The conferment of the power of judicial review has a

great sanctity as the Constitutional Court has the power to

declare any law as unconstitutional if there is lack of competence

of the legislature keeping in view the field of legislation as

provided in the Constitution or if a provision contravenes or runs

counter to any of the fundamental rights or any constitutional

provision or if a provision is manifestly arbitrary.

30. When we speak about judicial review, it is also necessary to

be alive to the concept of judicial restraint. The duty of judicial 30

review which the Constitution has bestowed upon the judiciary is

not unfettered; it comes within the conception of judicial

restraint. The principle of judicial restraint requires that judges

ought to decide cases while being within their defined limits of

power. Judges are expected to interpret any law or any provision

of the Constitution as per the limits laid down by the

Constitution.

31. In S.C. Chandra and others v. State of Jharkhand and

others 22 , it has been ruled that the judiciary should exercise

restraint and ordinarily should not encroach into the legislative

domain. In this regard, a reference to a three-Judge Bench

decision in Suresh Seth v. Commr., Indore Municipal Corpn.

and others23 is quite instructive. In the said case, a prayer was

made before this Court to issue directions for appropriate

amendment in the M.P. Municipal Corporation Act, 1956.

Repelling the submission, the Court held that it is purely a

matter of policy which is for the elected representatives of the

people to decide and no directions can be issued by the Court in

this regard. The Court further observed that this Court cannot

issue directions to the legislature to make any particular kind of

22 (2007) 8 SCC 279 23 (2005) 13 SCC 287 31

enactment. In this context, the Court held that under our

constitutional scheme, the Parliament and legislative assemblies

exercise sovereign power to enact law and no outside power or

authority can issue a direction to enact a particular kind of

legislation. While so holding, the Court referred to the decision in

Supreme Court Employees’ Welfare Association v. Union of

India and another24 wherein it was held that no court can direct

a legislature to enact a particular law and similarly when an

executive authority exercises a legislative power by way of a

subordinate legislation pursuant to the delegated authority of a

legislature, such executive authority cannot be asked to enact a

law which it has been empowered to do under the delegated

authority.

32. Recently, in Census Commissioner and others v. R.

Krishnamurthy 25 , the Court, after referring to Premium

Granites and another v. State of T.N. and others26, M.P. Oil

Extraction and another v. State of M.P. and others27, State

of Madhya Pradesh v. Narmada Bachao Andolan and

24 (1989) 4 SCC 187 25 (2015) 2 SCC 796 26 (1994) 2 SCC 691 27 (1997) 7 SCC 592 32

another 28 and State of Punjab and others v. Ram Lubhaya

Bagga and others29, held:-

―From the aforesaid pronouncement of law, it is clear as noon day that it is not within the domain of the courts to embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether a better policy could be evolved. The court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded ipse dixit offending the basic requirement of Article 14 of the Constitution. In certain matters, as often said, there can be opinions and opinions but the court is not expected to sit as an appellate authority on an opinion.‖

33. At this juncture, we think it apt to clearly state that the

judicial restraint cannot and should not be such that it amounts

to judicial abdication and judicial passivism. The Judiciary

cannot abdicate the solemn duty which the Constitution has

placed on its shoulders, i.e., to protect the fundamental rights of

the citizens guaranteed under Part III of the Constitution. The

Constitutional Courts cannot sit in oblivion when fundamental

rights of individuals are at stake. Our Constitution has conceived

the Constitutional Courts to act as defenders against illegal

intrusion of the fundamental rights of individuals. The

Constitution, under its aegis, has armed the Constitutional

28 (2011) 7 SCC 639 29 (1998) 4 SCC 117 33

Courts with wide powers which the Courts should exercise,

without an iota of hesitation or apprehension, when the

fundamental rights of individuals are in jeopardy. Elucidating on

the said aspect, this Court in Virendra Singh and others v.

The State of Uttar Pradesh30 has observed:-

"32. We have upon us the whole armour of the Constitution and walk from henceforth in its enlightened ways, wearing the breastplate of its protecting provisions and flashing the flaming sword of its inspiration."

34. While interpreting fundamental rights, the Constitutional

Courts should remember that whenever an occasion arises, the

Courts have to adopt a liberal approach with the object to infuse

lively spirit and vigour so that the fundamental rights do not

suffer. When we say so, it may not be understood that while

interpreting fundamental rights, the Constitutional Courts

should altogether depart from the doctrine of precedents but it is

the obligation of the Constitutional Courts to act as sentinel on

the qui vive to ardently guard the fundamental rights of

individuals bestowed upon by the Constitution. The duty of this

30 AIR 1954 SC 447 34

Court, in this context, has been aptly described in the case of

K.S. Srinivasan v. Union of India31 wherein it was stated:-

"... All I can see is a man who has been wronged and I can see a plain way out. I would take it."

35. Such an approach applies with more zeal in case of

Article 32 of the Constitution which has been described by

Dr. B.R. Ambedkar as "the very soul of the Constitution - the very

heart of it - the most important Article." Article 32 enjoys special

status and, therefore, it is incumbent upon this Court, in matters

under Article 32, to adopt a progressive attitude. This would be in

consonance with the duty of this Court under the Constitution,

that is, to secure the inalienable fundamental rights of

individuals.

I. Interpretation of the Constitution – The nature of duty cast upon this Court

36. Having stated about the supremacy of the Constitution and

the principles of constitutional limitation, separation of powers

and the spheres of judicial review, it is necessary to dwell upon

the concept of constitutional interpretation. In S.R. Bommai and

others v. Union of India and others32, it has been said that for

maintaining democratic process and to avoid political friction, it

31 AIR 1958 SC 419 32 (1994) 3 SCC 1 35

is necessary to direct the political parties within the purview of

the constitutional umbrella to strongly adhere to constitutional

values. There is no denial of the fact that the judiciary takes note

of the obtaining empirical facts and the aspirations of the

generation that are telescoped into the future. If constitutional

provisions have to be perceived from the prism of growth and

development in the context of time so as to actualize the social

and political will of the people that was put to in words, they have

to be understood in their life and spirit with the further

potentiality to change.

37. A five-Judge Bench in GVK Industries Limited and another

v. Income Tax Officer and another33 has lucidly expressed that

our Constitution charges the various organs of the State with

affirmative responsibilities of protecting the welfare and the

security of the nation. Legislative powers are granted to enable

the accomplishment of the goals of the nation. The powers of

judicial review are granted in order to ensure that legislative and

executive powers are used within the bounds specified by the

Constitution. The powers referred by the Constitution and

implied and borne by the constitutional text have to be perforce

33 (2011) 4 SCC 36 36

admitted. Nevertheless, the very essence of constitutionalism is

also that no organ of the State may arrogate to itself powers

beyond what is specified by the Constitution. Speaking on the

duty of the judiciary, the Court has opined that judicial restraint

is necessary in dealing with the powers of another coordinate

branch of the Government; but restraint cannot imply abdication

of the responsibility of walking on that edge. Stressing on the

facet of interpreting any law, including the Constitution, the

Court observed that the text of the provision under consideration

would be the primary source for discerning the meanings that

inhere in the enactment. It has also been laid down that in the

light of the serious issues, it would always be prudent, as a

matter of constitutional necessity, to widen the search for the

true meaning, purport and ambit of the provision under

consideration. No provision, and indeed no word or expression, of

the Constitution exists in isolation—they are necessarily related

to, transforming and, in turn, being transformed by other

provisions, words and phrases in the Constitution. Therefore, the

Court went on to say:-

―38. Our Constitution is both long and also an intricate matrix of meanings, purposes and structures. It is only by locating a particular constitutional provision under consideration within 37

that constitutional matrix could one hope to be able to discern its true meaning, purport and ambit. As Prof. Laurence Tribe points out:

―[T]o understand the Constitution as a legal text, it is essential to recognize the … sort of text it is: a constitutive text that purports, in the name of the people…, to bring into being a number of distinct but inter-related institutions and practices, at once legal and political, and to define the rules governing those institutions and practices.‖ (See Reflections on Free-Form Method in Constitutional Interpretation.34)‖

38. The Constitution being an organic document, its ongoing

interpretation is permissible. The supremacy of the Constitution

is essential to bring social changes in the national polity evolved

with the passage of time. The interpretation of the Constitution is

a difficult task. While doing so, the Constitutional Courts are not

only required to take into consideration their own experience over

time, the international treaties and covenants but also keep the

doctrine of flexibility in mind. It has been so stated in Union of

India v. Naveen Jindal and another35. In S.R. Bommai (supra)

the Court ruled that correct interpretation in proper perspective

would be in the defence of democracy and in order to maintain

the democratic process on an even keel even in the face of

possible friction, it is but the duty of the Court to interpret the

34 108 Harv L Rev 1221, 1235 (1995) 35 (2004) 2 SCC 510 38

Constitution to bring the political parties within the purview of

the constitutional parameters for accountability and to abide by

the Constitution and the laws for their strict adherence. With the

passage of time, the interpretative process has become expansive.

It has been built brick by brick to broaden the sphere of rights

and to assert the constitutional supremacy to meet the legitimate

expectations of the citizens. The words of the Constitution have

been injected life to express connotative meaning.

39. Recently, in K.S. Puttaswamy and another v. Union of

India and others36, one of us (Dr. D.Y. Chandrachud, J.) has

opined that constitutional developments have taken place as the

words of the Constitution have been interpreted to deal with new

exigencies requiring an expansive reading of liberties and

freedoms to preserve human rights under the Rule of Law. It has

been further observed that the interpretation of the Constitution

cannot be frozen by its original understanding, for the

Constitution has evolved and must continuously evolve to meet

the aspirations and challenges of the present and the future. The

duty of the Constitutional Courts to interpret the Constitution

opened the path for succeeding generations to meet the

36 (2017) 10 SCC 1 39

challenges. Be it stated, the Court was dealing with privacy as a

matter of fundamental right.

40. In Supreme Court Advocates-on-Record Association and

others v. Union of India 37 , the Court exposited that the

Constitution has not only to be read in the light of contemporary

circumstances and values but also in such a way that the

circumstances and values of the present generation are given

expression in its provisions. The Court has observed that

constitutional interpretation is as much a process of creation as

one of discovery. Thus viewed, the process of interpretation ought

to meet the values and aspirations of the present generation and

it has two facets, namely, process of creation and discovery. It

has to be remembered that while interpreting a constitutional

provision, one has to be guided by the letter, spirit and purpose

of the language employed therein and also the constitutional

silences or abeyances that are discoverable. The scope and

discovery has a connection with the theory of constitutional

implication. Additionally, the interpretative process of a provision

of a Constitution is also required to accentuate the purpose and

37 (1993) 4 SCC 441 40

convey the message of the Constitution which is intrinsic to the

Constitution.

I.1 Interpretation of fundamental rights

41. While adverting to the concept of the duty of the Court, we

shall focus on the interpretative process adopted by this Court in

respect of fundamental rights. In the initial years, after the

Constitution came into force, the Court viewed each fundamental

right as separate and distinct. That apart, the rule of restrictive

interpretation was applied. The contours were narrow and

limited. It is noticeable from the decision in A.K. Gopalan v.

State of Madras 38 . The perception changed when the Court

focussed on the actual impairment caused by the law rather than

the literal validity of the law as has been observed in I.R. Coelho

(supra). I.R. Coelho referred to Rustom Cavasjee Cooper v.

Union of India39 and understood that the view rendered therein

disapproved the view point in A.K. Gopalan and reflected upon

the concept of impact doctrine in Sakal Papers (P) Ltd. v. Union

of India40. The Court, after referring to Sambhu Nath Sarkar

v. State of West Bengal and others41, Haradhan Saha v. The

38 AIR 1950 SC 27 : 1950 SCR 88 39 (1970) 1 SCC 248 40 (1962) 3 SCR 842 : AIR 1962 SC 305 41 (1974) 1 SCR 1 : (1973) 1 SCC 856 41

State of West Bengal and others 42 and Khudiram Das v.

State of West Bengal and others43, reproduced a passage from

Maneka Gandhi v. Union of India and another44 which reads

thus:-

―The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of ‗personal liberty‘ and there is consequently no infringement of the fundamental right conferred by Article 21, such law, insofar as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article.‖

42. The Court reproduced a passage from the opinion expressed

by Krishna Iyer, J. which stated that the proposition is

indubitable that Article 21 does not, in a given situation, exclude

Article 19 if both the rights are breached.

43. In I.R. Coelho (supra), the Court clearly spelt out that post-

Maneka Gandhi, it is clear that the development of fundamental

rights had been such that it no longer involves the interpretation

of rights as isolated protections which directly arise but they

collectively form a comprehensive test against the arbitrary

exercise of powers in any area that occurs as an inevitable

consequence. The Court observed that the protection of

42 (1975) 3 SCC 198 : (1975) 1 SCR 778 43 (1975) 2 SCR 832 : (1975) 2 SCC 81 44 (1978) 1 SCC 248 42

fundamental rights has been considerably widened. In that

context, reference had been made to M. Nagaraj and others v.

Union of India and others 45 wherein it has been held that a

fundamental right becomes fundamental because it has

foundational value. That apart, one has also to see the structure

of the article in which the fundamental value is incorporated.

Fundamental right is a limitation on the power of the State. A

Constitution and, in particular, that of it which protects and

which entrenches fundamental rights and freedoms to which all

persons in the State are to be entitled is to be given a generous

and purposive construction. The Court must interpret the

Constitution in a manner which would enable the citizens to

enjoy the rights guaranteed by it in the fullest measure.

I.2 Interpretation of other constitutional provisions

44. In this regard, we may note how the Constitution Benches

have applied the principles of interpretation in relation to other

constitutional provisions which are fundamental to constitutional

governance and democracy. In B.R. Kapur v. State of T.N. and

another 46 , while deciding a writ of quo warranto, the majority

ruled that if a non-legislator could be sworn in as the Chief

45 (2006) 8 SCC 212 46 (2001) 7 SCC 231 43

Minister under Article 164 of the Constitution, then he must

satisfy the qualification of membership of a legislator as

postulated under Article 173. I.R. Coelho (supra), while deciding

the doctrine of implied limitation and referring to various

opinions stated in Kesavananda Bharati (supra) and Minerva

Mills Ltd. and others v. Union of India and others47, ruled

that the principle of implied limitation is attracted to the sphere

of constitutional interpretation.

45. In Manoj Narula v. Union of India 48 , the Court, while

interpreting Article 75(1) of the Constitution, opined that reading

of implied limitation to the said provision would tantamount to

prohibition or adding a disqualification which is neither expressly

stated nor impliedly discernible from the provision. Eventually,

the majority expressed that when there is no disqualification for a

person against whom charges have been framed in respect of

heinous or serious offences or offences relating to corruption to

contest the election, it is difficult to read the prohibition into

Article 75(1) by interpretative process or, for that matter, into

Article 164(1) to the powers of the Prime Minister or the Chief

Minister in such a manner. That would come within the criterion

47 (1980) 3 SCC 625 48 (2014) 9 SCC 1 44

of eligibility and would amount to prescribing an eligibility

qualification and adding a disqualification which has not been

stipulated in the Constitution. In the absence of any

constitutional prohibition or statutory embargo, such

disqualification cannot be read into Article 75(1) or Article 164(1)

of the Constitution.

46. Another aspect that was highlighted in Manoj Narula

(supra) pertained to constitutional implication and it was

observed that the said principle of implication is fundamentally

founded on rational inference of an idea from the words used in

the text. The concept of legitimate deduction is always

recognised. In Melbourne Corporation v. Commonwealth 49 ,

Dixon, J. opined that constitutional implication should be based

on considerations which are compelling. Mason, C.J., in

Australian Capital Television Pty. Limited and others and

the State of New South Wales v. The Commonwealth of

Australia and another 50 [Political Advertising case], has

ruled that there can be structural implications which are

―logically or practically necessary for the preservation of the

integrity of that structure‖. Any proposition that is arrived at

49 [1947] 74 CLR 31 (Aust) 50 [1992] 177 CLR 106 (Aust) 45

taking this route of interpretation must find some resting pillar or

strength on the basis of certain words in the text or the scheme

of the text. In the absence of the same, it may not be permissible

for a Court to deduce any proposition as that would defeat the

legitimacy of reasoning. A proposition can be established by

reading a number of articles cohesively, for that will be in the

domain of substantive legitimacy. Elaborating further, the Court

proceeded to state that the said process has its own limitation for

the Court cannot rewrite a constitutional provision. To justify the

adoption of the said method of interpretation, there has to be a

constitutional foundation.

47. In Kuldip Nayar and others v. Union of India and

others51, a Constitution Bench, while interpreting Article 80 of

the Constitution of India, relied upon a passage from G.

Narayanaswami v. G. Pannerselvam and others52. The said

authority clearly lays down that Courts should interpret in a

broad and generous spirit the document which contains the

fundamental law of the land. The Court observed that it may be

desirable to give a broad and generous construction to the

constitutional provisions, but while doing so, the rule of ―plain

51 (2006) 7 SCC 1 52 (1972) 3 SCC 717 46

meaning‖ or ―literal‖ interpretation, which remains ―the primary

rule‖, has also to be kept in mind. In the context of Article 80(4)

of the Constitution in the context of ―the representatives of each

State‖, the Court repelled the argument that it is inherent in the

expression ―representative‖ that he/she must first necessarily be

an elector in the State. It ruled that the ―representative‖ of the

State is the person chosen by the electors who can be any person

who, in the opinion of the electors, is fit to represent them.

48. The Court, in Union of India v. Sankalchand Himatlal

Sheth and another 53 , ruled that it is to be remembered that

when the Court interprets a constitutional provision, it breathes

life into the inert words used in the founding document. The

problem before the Constitutional Court is not a mere verbal

problem. ―Literalness‖, observed Frankfurter, J., ―may strangle

meaning‖ and he went on to add in Massachusetts Bonding &

Insurance Co. v. United States54 that ―there is no surer way to

misread a document than to read it literally.‖ The Court cannot

interpret a provision of the Constitution by making ―a fortress out

of the dictionary‖. The significance of a constitutional problem is

vital, not formal: it has to be gathered not simply by taking the

53 (1977) 4 SCC 193 54 352 U.S. 128 (1956) 47

words and a dictionary, but by considering the purpose and

intendment of the framers as gathered from the context and the

setting in which the words occur. The difficulty of gathering the

true intent of the law giver from the words used in the statute

was expressed by Holmes, J. in a striking and epigrammatic

fashion when he said: ―Ideas are not often hard but the words are

the devil55‖ and this difficulty is all the greater when the words to

be construed occur in a constitutional provision, for, as pointed

out by Cardozo, J., ―the process of constitutional interpretation is

in the ultimate analysis one of reading values into its clauses.‖

49. In this backdrop, it is necessary to state that the Court has

an enormous responsibility when it functions as the final arbiter

of the interpretation of the constitutional provision.

50. We have discussed the concepts of supremacy of the

Constitution and constitutional limitation, separation of powers,

the ambit and scope of judicial review, judicial restraint, the

progressive method adopted by the Court while interpreting

fundamental rights and the expansive conception of such

inherent rights. We have also deliberated upon the interpretation

of other constitutional provisions that really do not touch the

55 R.E. Megarry, ‗A Second Miscellany-at-Law‘ (Stevens, London, 1973), p.152 48

area of fundamental rights but are fundamental for constitutional

governance and the duty of the Court is not to transgress the

constitutional boundaries. We may immediately add that in the

case at hand, we are not concerned with the interpretation of

such constitutional provisions which have impact on the

fundamental rights of the citizens. We are concerned with the

interpretation of certain provisions that relate to parliamentary

privilege and what is protected by the Constitution in certain

articles. This situation has emerged in the context of the Court‘s

role to rely upon the reports of Parliamentary Standing

Committees in the context of the constitutional provisions

contained in Articles 105 and 122.

J. A perspective on the role of Parliamentary Committees

51. It is necessary to understand the role of the parliamentary

standing Committees or ad hoc committees. They are constituted

with certain purposes. The formation of committee has history.

"Committees have been described as a primary organizational

device whereby legislatures can accommodate an increase in the

number of bills being introduced, while continuing to scrutinize

legislation; handle the greater complexity and technical nature of

bills under review without an exponential growth in size; develop 49

"division of labours" among members for considering

legislation...."56.

52. Woodrow Wilson, the 28th President of the United States,

was quoted as saying in 1885 that ―it is not far from the truth to

say that Congress in session is Congress on public exhibition,

whilst Congress in its Committee rooms is Congress at work57‖.

This is because most of the work of Congress was referred to

committees for detailed review to inform debate on the floor of the

House.

53. Former U.S. Representative James Shannon commented

during a 1995 conference on the role of committees in Malawi's

legislature:-

"Around the world there is a trend to move toward more reliance on committees to conduct the work of parliament, and the greatest reason for this trend is a concern for efficiency. The demands on a modern parliament are numerous and it is not possible for the whole house to consider all the details necessary for performing the proper function of a legislature.58"

56 Source – Entering the Committee System: State Committee Assignments, Ronald D. Hedlund, Political; Research Quarterly, Vol. 42, Issue 4, pp.597-625 57 Woodrow Wilson, ―Congressional Government‖, 1885, quoted in the JCOC Final Report,

(Baltimore, the Johns Hopkins University Press, 1981) p.69 58 National Democratic Institute for International Affairs, Parliament‘s Orgainzation: The

Role of Committees and Party Whips – NDI Workshop in Mangochi, Malawi, June 1995 (Washington : National Democratic Institute for International Affairs, 1995) 50

54. Lord Campion in his book59 has explained the dual sense in

which the word "Committee" was used in old parliamentary

language:-

"In early days it is not the body as a whole but each single member that is meant by the term, 'the body is described as the committee' to whom the bill is committed. The formation of the terms is the same as that of any other English word which denotes the recipient in a bilateral relation of obligation, such as trustee, lessee, nominee, appointee. The body is usually referred to in the old authorities as 'committee'. But it was not long before it became usual to describe the totality of those to whom a bill was referred as a 'committee' in an abstract sense. In both the English word emphasis the idea of delegation and not that of representation in which the German word aussehuss expresses."

55. The utility of a Committee has been succinctly expressed by

Lord Beaconsfield60:-

"I do not think there is anyone who more values the labour of parliamentary committees than myself. They obtain for the country an extraordinary mass of valuable information, which probably would not otherwise be had or available, and formed, as they necessarily are, of chosen men their reports are pregnant with prudent and sagacious suggestion for the improvements of the administration of affairs."

56. The importance of Committees in today's democracy has

further been detailed thus61:-

59 "An Introduction to the Procedure of House of Commons"

60 Lord Beaconsfield in Hansard, 3rd Series, Vol.235 (1877) p. 1478 51

"Committees may not be of much service in the more spectacular aspect of these democratic institutions, and they might not be of much use in shaping fundamental policy, or laying down basic principles of government. But they are absolutely indispensable for the detailed work of supervision and control of the administration. Not infrequently, do they carry out great pieces of constructive legislation of public economy. Investigation of a complicated social problem, prior to legislation, maybe and is frequently carried out by such legislative committees, the value of whose service cannot be exaggerated. They are useful for obtaining expert advice when the problem is a technical one involving several branches within an organization, or when experts are required to advise upon a highly technical problem definable within narrow limits. The provision of advice based on an inquiry involving the examination of witnesses is also a task suitable for a committee. The employment of small committees, chosen from the members of the House, for dealing with some of the items of the business of the House is not only convenience but is also in accordance with the established convention of Parliament. This procedure is particularly helpful in dealing with matters which, because of their special or technical nature, are better considered in detail by a committee of House. Besides expediting legislative business, committees serve other useful services. Service on these committees keeps the members adequately supplied with information, deepens their insight into affairs and steady their judgment, providing invaluable training to aspirants to office, and the general level of knowledge and ability in the legislature rises. Committees properly attuned to the spirit and forms parliamentary government can serve the country well as the eyes and ears and to some extent the brain of the legislature, the more so since the functions and

61 "Growth of Committee System in the Central Legislature of India 1920-1947"

52 fields of interest of the government increase day by day."

57. Also, in the said book, the following observations have been

made with respect to the functions of Committees:-

"As the committee system developed in the course of time the various functions of these bodies were differentiated into a few fixed types and a standard of size appropriate to each of these functions was also arrived at. These committees are appointed for a variety of purposes. One of the major purposes for which committees are appointed is the public investigation of problems out of the report upon which legislation can be built up. Secondly, committees are appointed to legislate. Bills referred to such committees are thoroughly discussed and drafted before they become laws. Example of such committees are the select committees in the Indian Legislature. Thirdly, committees are appointed to scrutinize and control. These committees are entrusted with the task of seeing whether or how a process is being performed, and by their conduct of this task they serve to provide the means of some sort of control over the carrying out of the process."

58. Today parliamentary committee systems have emerged as a

creative way of parliaments to perform their basic functions. They

serve as the focal point for legislation and oversight. In a number

of parliaments, bills, resolutions and matters on specific issues

are referred to specific committees for debate and

recommendations are made to the House for further debate.

Parliamentary committees have emerged as vibrant and central 53

institutions of democratic parliaments of today's world.

Parliaments across the globe set up their own rules on how

committees are established, the composition, the mandate and

how chairpersons are to be selected but they do have certain

characteristics in common. They are usually a small group of

MPs brought together to critically review issues related to a

particular subject matter or to review a specific bill. They are

often expected to present their observations and

recommendations to the Chamber for final debate.

59. Often committees have a multi-party composition. They

examine specific matters of policy or government administration

or performance. Effective committees have developed a degree of

expertise in a given policy area, often through continuing

involvement and stable memberships. This expertise is both

recognized and valued by their colleagues. They are able to

represent diversity as also reconcile enough differences to sustain

recommendations for action. Also, they are important enough so

that people inside and outside the legislature seek to influence

outcomes by providing information about what they want and

what they will accept. Furthermore, they provide a means for a 54

legislative body to consider a wide range of topics in-depth and to

identify politically and technically feasible alternatives.

K. International position of Parliamentary Committees

60. Before we proceed to dwell upon the said aspect in the

Indian context, we think it apt to have a holistic view of the role

of Parliamentary Standing Committees in a parliamentary

democracy.

61. History divulges that Parliamentary Standing Committees

have been very vital institutions in most of the eminent

democracies such as USA, United Kingdom, Canada, Australia,

etc. Over the years, the committee system has come to occupy

importance in the field of governance.

K.1 Parliamentary Committees in England

62. British parliamentary history validates that parliamentary

committees have existed in some form or the other since

the 14th century. Perhaps the committee system originated with

the ‗triers and examiners of petitions‘ – they were individual

members selected for drawing up legislations to carry into effect

citizens‘ prayers that were expressed through petitions. By the

middle of the 16th century, a stable committee system came

into existence. These Parliamentary committees are sub- 55

legislative organizations each consisting of small number of

Members of Parliament from the House of Commons,

or peers from the House of Lords, or a mix of both appointed to

deal with particular areas or issues; most are made up of

members of the Commons. 62 The majority of parliamentary

committees are Select Committees which are designed to:-

1. Superintend the work of departments and agencies;

2. Examine topical issues affecting the country or individual regions; and

3. Review and advise on the procedures, workings and rules of the House.

63. The other committees such as ―Departmental Select

Committees‖ are designed to oversee and examine the work

of individual government departments, ―Topical Select

Committee‖ examines contemporary issues of significance and

―Internal Select Committees‖ have responsibility with respect to

the day-to-day running of Parliament.63 It helps the Parliament to

have a very powerful network of committees to ensure executive

accountability.

K.2 Parliamentary Committees in United States of America

64. Parliamentary Committees are essential to the effective

operation of the Parliament in United States. Due to the high 62 See http://www.parliament.uk/business/committees/ 63 Id.

56

volume and complexity of its work, the Senate divides its tasks

among 20 permanent committees, 4 joint committees and

occasionally temporary committees. Although the Senate

committee system is similar to that of the House of

Representatives, it has its own guidelines within which each

committee adopts its own rules. This creates considerable

variation among the panels. The chair of each committee and a

majority of its members represent the majority party. The chair

primarily controls a committee‘s business. Each party assigns its

own members to committees, and each committee distributes its

members among its sub-committees.64 The Senate places limits

on the number and types of panels any one senator may serve on

and chair. Committees receive varying levels of operating funds

and employ varying numbers of aides. Each hires its own

staff. The majority party controls most committee staff and

resources, but a portion is shared with the minority.

65. The role and responsibilities of Parliamentary committees in

the United States of America are as follows:-

(i) As “little legislatures,” committees monitor on-going

governmental operations, identify issues suitable for legislative

64 See https://www.britannica.com/topic/Congress-of-the-United-States for details.

57 review, gather and evaluate information and recommend courses

of action to their parent body.

(ii) The Committee membership enables members to develop

specialized knowledge of the matters under their jurisdiction.

(iii) Standing committees generally have legislative

jurisdiction. Sub-committees handle specific areas of the

committee‘s work. Select and joint committees generally handle

oversight or housekeeping responsibilities.65

(iv) Several thousand bills and resolutions are referred to

committees during each 2-year Congress. Committees select a

small percentage for consideration, and those not addressed

often receive no further action. The bills that committees report

help to set the Senate‘s agenda.

66. When a committee or sub-committee favours a measure, it

usually takes four actions: first it asks relevant executive

agencies for written comments on the measure; second, it holds

hearings to gather information and views from non-committee

experts and at committee hearings, these witnesses summarize

submitted statements and then respond to questions from the

65 Other types of committees deal with the confirmation or rejection of presidential nominees. Committee hearings that focus on the implementation and investigation of programs are known as oversight hearings, whereas committee investigations examine allegations of wrongdoing.

58

senators; third, a committee meets to perfect the measure

through amendments, and non-committee members sometimes

attempt to influence the language; and fourth, when the language

is agreed upon, the committee sends the measure back to the full

Senate, usually along with a written report describing its

purposes and provisions. A committee‘s influence extends to its

enactment of bills into law. A committee that considers a

measure will manage the full Senate‘s deliberation on it. Also, its

members will be appointed to any conference committee created

to reconcile its version of a bill with the version passed by the

House of Representatives.

K.3 Parliamentary Committees in Canada

67. The Parliament in Canada also functions through various

standing committees established by Standing Orders of

the House of Commons or the Senate. It studies matters referred

to it by special order or, within its area of responsibility in the

Standing Orders, may undertake studies on its own initiative.

There are presently 23 standing committees (including two

standing joint committees) in the House and 20 in the Canadian 59

Senate. 66 They, in general, examine the administration, policy

developments and budgetary estimates of government

departments and agencies. Certain standing committees are also

given mandates to examine matters that have implications such

as official languages policy and multiculturalism policy.

K.4 Parliamentary Committees in Australia

68. The primary object of parliamentary committees in Australia

is to perform functions which the Houses themselves are not well

fitted to perform, i.e., finding out the facts of a case, examining

witnesses, sifting evidence, and drawing up reasoned

conclusions. Because of their composition and method of

procedure, which is structured but generally informal compared

with the Houses, committees are well suited to the gathering of

evidence from expert groups or individuals. 67 In a sense, they

'take Parliament to the people' and allow organisations and

individuals to participate in policy making and to have their views

placed on the public record and considered as part of the

decision-making process. Not only do committee inquiries enable

66 Special committees (sometimes called select committees), e. g., the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, are sometimes established by the House to study specific issues or to investigate public opinion on policy decisions. They are sometimes called task forces but should not be confused with government TASK FORCES. See http://www.thecanadianencyclopedia.ca/en/article/committees/ 67 See https://www.aph.gov.au/Parliamentary_Business/Committees 60

Members to be better informed about community views but in

simply undertaking an inquiry, the committee may promote

public debate on the subject at issue. The all-party composition

of most committees and their propensity to operate across party

lines are important features.68 This bipartisan approach generally

manifests itself throughout the conduct of inquiries and the

drawing up of conclusions. Committees oversee and scrutinise

the Executive and contribute towards a better-informed

administration and government policy-making process. 69 In

respect of their formal proceedings, committees are microcosms

and extensions of the Houses themselves, limited in their power

of inquiry by the extent of the authority delegated to them and

governed for the most part in their proceedings by procedures

and practices which reflect those which prevail in the House by

which they were appointed.

L. Parliamentary Committees in India

69. Having reflected upon the parliamentary committees and

their role in other democracies, we may now proceed to deal

with the parliamentary committees in India. The long freedom

struggle in India was not just a movement to achieve freedom

68 Id.

69 Id.

61

from British rule. It was as much a movement to free ourselves

from the various social evils and socio-economic inequities and

discriminations, to lift the deprived and the downtrodden from

the sludge of poverty and to give them a stake in the overall

transformation of the country. It was with this larger national

objective that a democratic polity based on parliamentary

system was conceived and formally declared in 1936 as ―the

establishment of a democratic state,‖ a sovereign state which

would promote and foster ―full democracy‖ and usher in a new

social and economic order.

70. The founding fathers of the Constitution perceived that

such a system would respond effectively to the problems arising

from our diversity as also to the myriad socio-economic factors

that the nation was faced with. With that objective, in the

political system that we established, prominence was given to

the Parliament, the organ that directly represents the people

and as such accountable to them.

71. At this juncture, we may look at the origin and working of

the Parliamentary Committee. The committee system in India, as

has been stated in ―The Committee System in India : 62

Effectiveness in Enforcing Executive Accountability‖, Hanoi

Session, March 2015, is as follows:-

―The origin of the committee system in India can be traced back to the Constitutional Reforms of 1919. The Standing Orders of the Central Legislative Assembly provided for a Committee on Petitions relating to Bills, Select Committee on Amendments of Standing Orders, and Select Committee on Bills. There was also a provision for a Public Accounts Committee and a Joint Committee on a Bill. Apart from Committees of the Legislative Assembly, Members of both Houses of the Central Legislature also served on the Standing Advisory Committees attached to various Departments of the Government of India. All these committees were purely advisory in character and functioned under the control of the Government with the Minister in charge of the Department acting as the Chairman of the Committee.

After the Constitution came into force, the position of the Central Legislative Assembly changed altogether and the committee system underwent transformation. Not only did the number of committees increase, but their functions and powers were also enlarged.

By their nature, Parliamentary Committees are of two kinds: Standing Committees and Ad hoc Committees. Standing Committees are permanent and regular committees which are constituted from time to time in pursuance of the provisions of an Act of Parliament or Rules of Procedure and Conduct of Business in Lok Sabha. The work of these Committees is of continuous nature. The Financial Committees, Departmentally Related Standing Committees (DRSCs) and some other Committees come under the category of Standing Committees. Ad hoc Committees are appointed for a 63

specific purpose and they cease to exist when they finish the task assigned to them and submit a report. The principal Ad hoc Committees are the Select and Joint Committees on Bills. Railway Convention Committee, Joint Committee on Food Management in Parliament House Complex, etc. also come under the category of Ad hoc Committees.‖

72. In the said document, it has been observed thus in respect

of the Standing Committees of Parliament:-

―Standing Committees are those which are periodically elected by the House or nominated by the Speaker, Lok Sabha, or the Chairman, Rajya Sabha, singly or jointly and are permanent in nature. In terms of their functions, Standing Committees may be classified into two categories. One category of Committees like the Departmentally Related Standing Committees (DRSCs), Financial Committees, etc., scrutinise the functioning of the Government as per their respective mandate. The other category of Committees like the Rules Committee, House Committee, Joint Committee on Salaries and Allowances, etc. deal with matters relating to the Houses and members.‖

73. The functions of the Parliament in modern times are not

only diverse and complex in nature but also considerable in

volume and the time at its disposal is limited. It cannot,

therefore, give close consideration to all the legislative and other

matters that come up before it. A good deal of its business is,

therefore, transacted in the Committees of the House known as

Parliamentary Committees. Parliamentary Committee means a 64

Committee which is appointed or elected by the House or

nominated by the Speaker and which works under the direction

of the Speaker and presents its report to the House or to the

Speaker.

74. Founded on English traditions, the Indian Parliament‘s

committee system has a vital role in the parliamentary

democracy. Generally speaking, the Parliamentary committees

are of two kinds; standing committees and ad hoc committees.

Standing Committees are permanent and regular committees

which are constituted from time to time in pursuance of the

provisions of an Act of Parliament or Rules of Procedure and

Conduct of Business in Lok Sabha. The work of these

Committees is of continuous nature. The Financial Committees,

Department Related Standing Committees (DRSCs) and some

other Committees too come under the category of Standing

Committees. The ad hoc Committees are appointed for specific

purposes as and when the need arises and they cease to exist as

soon as they complete the work assigned to them. 70 The

parliamentary committees are invariably larger in size and are

recommendatory in nature. Be it stated, there are 24 Department

70The principal Ad hoc Committees are the Select and Joint Committees on Bills. Railway Convention Committee, Joint Committee on Food Management in Parliament House Complex etc also come under the category of ad hoc Committees. 65

Related Standing Committees covering under their jurisdiction all

the Ministries/Departments of the Government of India. Each of

these Committees consists of 31 Members - 21 from Lok Sabha

and 10 from Rajya Sabha to be nominated by the Speaker, Lok

Sabha and the Chairman, Rajya Sabha, respectively. The term of

office of these Committees does not exceed one year.

L.1 Rules of Procedure and Conduct of Business in Lok Sabha

75. A close look at the functioning of these committees

discloses the fact that the committee system is designed to

enlighten Members of Parliament (MPs) on the whole range of

governmental action including defence, external affairs,

industry and commerce, agriculture, health and finance. They

offer opportunities to the members of the Parliament to realize

and comprehend the dynamics of democracy. The members of

Parliament receive information about parliamentary workings as

well as perspective on India‘s strengths and weaknesses

through the detailed studies undertaken by standing

committees. Indian parliamentary committees are a huge basin

of information which are made available to the Members of

Parliament in order to educate themselves and contribute ideas

to strengthen the parliamentary system and improve 66

governance. The committee system is designed to enhance

the capabilities of Members of Parliament to shoulder

greater responsibilities and broaden their horizons.

76. As has been stated in the referral judgment with regard to

the Parliamentary Committee, we may usefully refer to the Rules

of Procedure and Conduct of Business in Lok Sabha (for short

‗the Rules‘). Rule 2 of the Rules defines ―Parliamentary

Committee‖. It reads as follows:-

―2. (1) … ―Parliamentary Committee‖ means a Committee which is appointed or elected by the House or nominated by the Speaker and which works under the direction of the Speaker and presents its report to the House or to the Speaker and the Secretariat for which is provided by the Lok Sabha Secretariat.‖

77. From the referral judgment, we may reproduce the

following paragraphs dealing with the relevant Rules:-

―33. Chapter 26 of the Rules deals with Parliamentary Committees and the matters regarding appointment, quorum, decisions of the committee, etc. There are two kinds of Parliamentary Committees: (i) Standing Committees, and (ii) Ad hoc Committees. The Standing Committees are categorised by their nature of functions. The Standing Committees of the Lok Sabha are as follows:

(a) Financial Committees;

(b) Subject Committees or departmentally related Standing Committees of the two houses;

67 (c) Houses Committee i.e. the committees relating to the day to day business of the House;

(d) Enquiry Committee;

(e) Scrutiny Committees;

(f) Service Committees;

34. A list of Standing Committees of Lok Sabha along with its membership is reproduced as under:

Name of Committee Number of Members Business Advisory Committee 15 Committee of Privileges 15 Committee on Absence of Members 15 from the Sittings of the House of Committee on Empowerment of Women Committee on Estimates 30 Committee on Government 15 Assurances Committee on Papers Laid on the 15 Table Committee on Petitions 15 Committee on Private Members Bills 15 and Resolutions Committee on Public Accounts 22 Committee on Public Undertakings 22 Committee on Subordinate 15 Legislation Committee on the Welfare of 30 Scheduled Castes and Scheduled Tribes House Committee 12 Joint Committee on Offices of Profit 15 Joint Committee on Salaries and 15 Allowances of Members of Parliament Library Committee 9 Rules Committee 15 68

Apart from the above, there are various

departmentally related Standing Committees under various Ministries.‖

78. Rules 77 and 78 of the Rules read as under:-

―77. (1) After the presentation of the final report of a Select Committee of the House or a Joint Committee of the Houses, as the case may be, on a Bill, the member in charge may move—

(a) that the Bill as reported by the Select Committee of the House or the Joint Committee of the Houses, as the case may be, be taken into consideration; or

(b) that the Bill as reported by the Select Committee of the House or the Joint Committee of the Houses, as the case may be, be re-

committed to the same Select Committee or to a new Select Committee, or to the same Joint Committee or to a new Joint Committee with the concurrence of the Council, either—

(i) without limitation, or

(ii) with respect to particular clauses or amendments only, or

(iii) with instructions to the Committee to make some particular or additional provision in the Bill, or

(c) that the Bill as reported by the Select Committee of the House or the Joint Committee of the Houses, be circulated or recirculated, as the case may be, for the purpose of eliciting opinion or further opinion thereon:

Provided that any member may object to any such motion being made if a copy of the report has not been made available for the use of members for two days before the day on which the motion is made and such objection shall 69

prevail, unless the Speaker allows the motion to be made.

(2) If the member in charge moves that the Bill as reported by the Select Committee of the House or the Joint Committee of the Houses, as the case may be, be taken into consideration, any member may move Motions after presentation of Select/ Joint Committee reports. 39 as an amendment that the Bill be re-committed or be circulated or recirculated for the purpose of eliciting opinion or further opinion thereon.

78. The debate on a motion that the Bill as reported by the Select Committee of the House or the Joint Committee of the Houses, as the case may be, be taken into consideration shall be confined to consideration of the report of the Committee and the matters referred to in that report or any alternative suggestions consistent with the principle of the Bill.‖

79. Rule 270 of the Rules, which deals with the functions of the

Parliamentary Committee meant for Committees of the Rajya

Sabha, is relevant. It reads as follows:-

―270. Functions.— Each of the Standing Committees shall have the following functions, namely—

(a) to consider the Demands for Grants of the related Ministries/Departments and report thereon.

The report shall not suggest anything of the nature of cut motions;

(b) to examine Bills, pertaining to the related Ministries/Departments, referred to the Committee by the Chairman or the Speaker, as the case may be, and report thereon;

(c) to consider the annual reports of the Ministries/Departments and report thereon; and 70

(d) to consider national basic long-term policy documents presented to the Houses, if referred to the Committee by the Chairman or the Speaker, as the case may be, and report thereon:

Provided that the Standing Committees shall not consider matters of day-to-day administration of the related Ministries/Departments.‖

80. Rule 271 provides for the applicability of provisions relating

to functions. Rule 274 deals with the report of the Committee.

The said Rule reads as follows:-

―274. Report of the Committee.— (1) The report of the Standing Committee shall be based on broad consensus.

(2) Any member of the Committee may record a minute of dissent on the report of the Committee. (3) The report of the Committee, together with the minutes of dissent, if any, shall be presented to the Houses.‖

81. Rule 274(3) is extremely significant, for it provides that the

report of the Committee together with the minutes of the dissent,

if any, is to be presented to the House. Rule 277 stipulates that

the report is to have persuasive value. In this context, Rule 277 is

worth quoting:-

―277. Reports to have persuasive value.— The report of a Standing Committee shall have persuasive value and shall be treated as considered advice given by the Committee.‖‖ 71

The aforesaid rule makes it quite vivid that the report of the

Committee is treated as an advice given by the Committee and it

is meant for the Parliament.

M. Parliamentary privilege

82. Black's Law Dictionary, 6th Ed., 1990, p. 1197, defines

―privilege‖ as "a particular and peculiar benefit or advantage

enjoyed by a person, company, or class, beyond the common

advantages of other citizens. An exceptional or extraordinary

power or exemption. A peculiar right, advantage, exemption,

power, franchise, or immunity held by a person or class, not

generally possessed by others."

83. Parliamentary privilege is defined by author Erskine May in

Erskine May's Treatise on the Law, Privileges, Proceedings and

Usage of Parliament:-

―Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively... and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law.‖71

84. The concept of Parliamentary Privilege has its origin in

Westminster, Britain in the 17th century with the passage of the

71 May, 22nd ed., p. 65. For other definitions of privilege, see Maingot, 2nd ed., pp. 12-3.

72 Bill of Rights in 1689. Article IX of the Bill of Rights, which laid

down the concept of Parliamentary Privilege, reads as under:-

―That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.‖

85. Parliamentary Privilege was introduced to prevent any

undue interference in the working of the Parliament and thereby

enable the members of the Parliament to function effectively and

efficiently without unreasonable impediment. Till date,

Parliamentary Privilege remains an important feature in any

parliamentary democracy. The concept of Parliamentary Privilege

requires a balancing act of two opposite arguments as noted by

Thomas Erskine May:-

―On the one hand, the privileges of Parliament are rights 'absolutely necessary for the due execution of its powers'; and on the other, the privilege of Parliament granted in regard of public service 'must not be used for the danger of the commonwealth.‖72

M.1 Parliamentary privilege under the Indian Constitution

86. Having dealt with the role of the Parliamentary Standing

Committee or Parliamentary Committees, it is necessary to

understand the status of Parliamentary Committee and the

privileges it enjoys in the Indian context. Article 105 of the 72 Erskine May 24th Edition Pg. 209 73

Constitution of India, being relevant in this context, is

reproduced below:-

“Article 105. Powers, privileges, etc of the Houses of Parliament and of the members and committees thereof (1) Subject to the provisions of this constitution and the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament (2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings (3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined shall be those of that House and of its members and committees immediately before the coming into force of Section 15 of the Constitution (Forty fourth Amendment) Act 1978 (4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.‖

87. Sub-article (2) of the aforesaid Article clearly lays the

postulate that no member of Parliament shall be made liable to

any proceedings in any court in respect of anything he has said 74

in the committee. Freedom of speech that is available to the

members on the floor of the legislature is quite distinct from the

freedom which is available to the citizens under Article 19(1)(a) of

the Constitution. Members of the Parliament enjoy full freedom in

respect of what they speak inside the House. Article 105(4)

categorically stipulates that the provisions of clauses (1), (2)

and (3) shall apply in relation to persons, who by virtue of this

Constitution, have the right to speak in, and otherwise to take

part in the proceedings of, a House of the Parliament or any

committee thereof as they apply in relation to the members of the

Parliament. Thus, there is complete constitutional protection. It

is worthy to note that Article 118 provides that each House of the

Parliament may make rules for regulating, subject to the

provisions of this Constitution, its procedure and the conduct of

its business. Condignly analysed, the Parliament has been

enabled by the Constitution to regulate its procedure apart from

what has been stated directly in the Constitution.

88. Article 105 of the Constitution is read mutatis mutandis

with Article 194 of the Constitution as the language in both the

articles is identical, except that Article 105 employs the word

―Parliament‖ whereas Article 194 uses the words ―Legislature of a 75

State‖. Therefore, the interpretation of one of these articles would

invariably apply to the other and vice versa.

89. In U.P. Assembly case [Special Reference No. 1 of 1964]73,

the controversy pertained to the privileges of the House in

relation to the fundamental rights of the citizens. The decision

expressly started that the Court was not dealing with the internal

proceedings of the House. We may profitably reproduce two

passages from the said judgment:-

―108. … The obvious answer to this contention is that we are not dealing with any matter relating to the internal management of the House in the present proceedings. We are dealing with the power of the House to punish citizens for contempt alleged to have been committed by them outside, the four walls of the House, and that essentially raises different considerations.

x x x x x

141. In conclusion, we ought to add that throughout our discussion we have consistently attempted to make it clear that the main point which we are discussing is the right of the House to claim that a general warrant issued by it in respect of its contempt alleged to have been committed by a citizen who is not a Member of the House outside the four walls of the House, is conclusive, for it is on that claim that the House has chosen to take the view that the Judges, the Advocate, and the party have committed contempt by reference to their conduct in the habeas corpus petition pending

73 AIR 1965 SC 745 76

before the Lucknow Bench of the Allahabad High Court. …‖

90. The Court further observed:-

―43. … In this connection it is necessary to remember that the status, dignity and importance of these two respective institutions, the Legislatures and the Judicature, are derived primarily from 'the status dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two august bodies as well as the Executive which is another important constituent of a democratic State, must function not in antinovel nor in a spirit of hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working of the three constituents of the democratic State alone will help the peaceful development, growth and stabilization of the democratic way of life in this country.‖

91. In the said case, the Court was interpreting Article 194 of

the Constitution and, in that context, it held:-

―31. … While interpreting this clause, it is necessary to emphasis that the provisions of the Constitution subject to which freedom of speech has been conferred on the legislators, are not the general provisions of the Constitution but only such of them as relate to the regulation of the procedure of the Legislature. The rules and standing orders may regulate the procedure of the Legislature and some of the provisions of the Constitution may also purport to regulate it; these are, for instance, Articles 208 and 211. The adjectival clause "regulating the procedure of the Legislature" governs both the preceding clauses relating to "the provisions of the Constitution" and "the rules and standing orders." Therefore, clause (1) confers on the legislators specifically the right of freedom of 77

speech subject to the limitation prescribed by its first part. It would thus appear that by making this clause subject only to the specified provisions of the Constitution, the Constitution-makers wanted to make it clear that they thought it necessary to confer on the legislators freedom of speech separately and, in a sense, independently of Art. 19(1)(a). If all that the legislators were entitled to claim was the freedom of speech and expression enshrined in Art. 19(1)(a), it would have been unnecessary to confer the same right specifically in the manner adopted by Art. 194(1); and so, it would be legitimate to conclude that Art. 19(1)(a) is not one of the provisions of the Constitution which controls the first part of clause (1) of Art. 194.‖

Proceeding further, the Court went on to say that clause (2)

emphasises the fact that the said freedom is intended to be

absolute and unfettered. Similar freedom is guaranteed to the

legislators in respect of the votes they may give in the Legislature

or any committee thereof. Interpreting clause (3), the Court ruled

that the first part of this clause empowers the Legislatures of the

States to make laws prescribing their powers, privileges and

immunities; the latter part provides that until such laws are

made, the Legislatures in question shall enjoy the same powers,

privileges and immunities which the House of Commons enjoyed

at the commencement of the Constitution. The Constitution-

makers, the Court observed, must have thought that the

Legislatures would take some time to make laws in respect of 78

their powers, privileges and immunities. During the interval, it

was clearly necessary to confer on them the necessary powers,

privileges and immunities. There can be little doubt that the

powers, privileges and immunities which are contemplated by

clause (3) are incidental powers, privileges and immunities which

every Legislature must possess in order that it may be able to

function effectively, and that explains the purpose of the latter

part of clause (3). The Court stated that all the four clauses of

Article 194 are not in terms made subject to the provisions

contained in Part III. In fact, clause (2) is couched in such wide

terms that in exercising the rights conferred on them by clause

(1), if the legislators by their speeches contravene any of the

fundamental rights guaranteed by Part III, they would not be

liable for any action in any court. It further said:-

―36. … In dealing with the effect of the provisions contained in clause (3) of Article 194, wherever it appears that there is a conflict between the said provisions and the provisions pertaining to fundamental rights, an attempt win have to be made to resolve the said conflict by the adoption of the rule of harmonious construction. …‖

92. Dealing with the plenary powers of the legislature, the Court

ruled that these powers are controlled by the basic concepts of

the written Constitution itself and can be exercised within the 79

legislative fields allotted to their jurisdiction by the three Lists

under the Seventh Schedule; but beyond the Lists, the

Legislatures cannot travel. They can no doubt exercise their

plenary legislative authority and discharge their legislative

functions by virtue of the powers conferred on them by the

relevant provisions of the Constitution; but the basis of the power

is the Constitution itself. Besides, the legislative supremacy of

our Legislatures including the Parliament is normally controlled

by the provisions contained in Part III of the Constitution. If the

Legislatures step beyond the legislative fields assigned to them,

or while acting within their respective fields, they trespass on the

fundamental rights of the citizens in a manner not justified by

the relevant articles dealing with the said fundamental rights,

their legislative actions are liable to be struck down by the Courts

in India. Therefore, it is necessary to remember that though our

Legislatures have plenary powers, yet they function within the

limits prescribed by the material and relevant provisions of the

Constitution.

93. Adverting to Article 212(1) of the Constitution, the Court

held that the said Article seems to make it possible for a citizen to

call in question in the appropriate court of law the validity of any 80

proceedings inside the legislative chamber if his case is that the

said proceedings suffer not from mere irregularity of procedure,

but from an illegality. If the impugned procedure is illegal and

unconstitutional, it would be open to be scrutinised in a court of

law, though such scrutiny is prohibited if the complaint against

the procedure is no more than this that the procedure was

irregular. That again is another indication which may afford some

assistance in construing the scope and extent of the powers

conferred on the House by Article 194(3).

94. In Raja Ram Pal v. Hon’ble Speaker, Lok Sabha and

others 74 , the Court, after referring to U.P. Assembly case

(Special Reference No. 1 of 1964), observed that the privileges

of the Parliament are rights which are ―absolutely necessary for

the due execution of its powers‖ which are enjoyed by individual

members as the House would not be able to perform its functions

without unimpeded use of the services of its members and also

for the protection of its members and the vindication of its own

authority and dignity. The Court, for the said purpose, referred

to May‘s Parliamentary Practice. Parliamentary privilege

conceptually protects the members of Parliament from undue

74 (2007) 3 SCC 184 81

pressure and allows them freedom to function within their

domain regard being had to the idea of sustenance of legislative

functionalism. The aforesaid protection is absolute.

M.2 Judicial review of parliamentary proceedings and its privilege

95. Commenting upon the effect of parliamentary privilege, the

House of Lords in the case of Hamilton v. Al Fayed75 pointed

out that the normal impact of parliamentary privilege is to

prevent the Court from entertaining any evidence, cross-

examination or submissions which challenge the veracity or

propriety of anything done in the course of parliamentary

proceedings.

96. With regard to the role of the Court in the context of

parliamentary privileges, Lord Brougham, in the case of

Wellesley v. Duke of Beaufort 76 , has opined that it is

incumbent upon the Courts of law to defend their high and

sacred duty of guarding themselves, the liberties and the

properties of the subject, and protecting the respectability and

the very existence of the Houses of Parliament themselves,

against wild and extravagant and groundless and inconsistent

notions of privilege.

75 [2001] 1 AC 395 at 407 76 [1831] Eng R 809 : (1831) 2 Russ & My 639: (1831) 39 ER 538 82

97. The 1999 UK Joint Committee report offers a useful

analysis of the respective roles to be played by the Parliament

and the Courts in advancing the law of parliamentary privilege:-

"There may be good sense sometimes in leaving well alone when problems have not arisen in practice. Seeking to clarify and define boundaries may stir up disputes where currently none exists. But Parliament is not always well advised to adopt a passive stance. There is merit, in the particularly important areas of parliamentary privilege, in making the boundaries reasonably clear before difficulties arise. Nowadays people are increasingly vigorous in their efforts to obtain redress for perceived wrongs. In their court cases they press expansively in areas where the limits of the courts' jurisdiction are not clear. Faced with demarcation problems in this jurisdictional no-man's land, the judges perforce must determine the position of the boundary. If Parliament does not act, the courts may find themselves compelled to do so."

98. With respect to the position of parliamentary privileges and

the role of the Courts in Canada, the Supreme Court of Canada

in the case of New Brunswick Broadcasting Co. v. Nova Scotia

(Speaker of the House of Assembly)77 opined that the Canadian

legislative bodies possess such inherent privileges as may be

necessary to their proper functioning and that the said privileges

are part of the fundamental law of the land and are, hence,

constitutional. Further, the Court observed that the Courts have

77 [1993] 1 SCR 319 83

the power to determine if the privilege claimed is necessary to the

capacity of the legislature to function, but have no power to

review the correctness of a particular decision made pursuant to

the privilege. In the case of Harvey v. New Brunswick (Attorney

General)78, the Court has held that in order to prevent abuses in

the guise of privilege from trumping legitimate Charter interests,

the Courts must inquire into the legitimacy of a claim of

parliamentary privilege.

99. With respect to the review of parliamentary privilege, Lord

Coleridge, C.J., in the case of Bradlaugh v. Gossett79, observed

that the question as to whether in all cases and under all

circumstances the Houses are the sole judges of their own

privileges is not necessary to be determined in this case and that

to allow any review of parliamentary privilege by a court of law

may lead and has led to very grave complications. However, the

Law Lord remarked that to hold the resolutions of either House

absolutely beyond any inquiry in any court of law may land in

conclusion not free from grave complications and it is enough to

say that in theory the question is extremely hard to solve.

78 [1996] 2 SCR 876 79 (1884) 12 QBD 271 (D) 84

100. Sir William Holdsworth in his book 80 has also made the

following observations with regard to review of Parliamentary

privileges:-

'There are two maxims or principles which govern this subject. The first tells us that 'Privilege of Parliament is part of the law of the land;' the second that 'Each House is the judge of its own privileges'. Now at first sight it may seem that these maxims are contradictory. If privilege of Parliament is part of the law of the land its meaning and extent must be interpreted by the courts, just like any other part of the law; and therefore, neither House can add to its privileges by its own resolution, any more than it can add to any other part of the law by such a resolution.

On the other hand if it is true that each House is the sole judge of its own privileges, it might seem that each House was the sole judge as to whether or no it had got a privilege, and so could add to its privileges by its own resolution. This apparent contradiction is solved if the proper application of these two maxims is attended to. The first maxim applies to cases like Ashby v. White and Stockdale v. Hansard (A), in which the question al issue was the existence of a privilege claimed by the House.

This is a matter of law which the courts must decide, without paying any attention to a resolution of the House on the subject. The second maxim applies to cases like that of the Sheriff of Middlesex (B), and Bradlaugh v. Gosset (D), in which an attempt was made to question, not the existence but the mode of user of an undoubted privilege. On this matter the courts will not interfere because each House is the sole judge of the question whether,

80 "A History of English Law"

85 when or how it will use one of its undoubted privileges."

101. At this juncture, it is fruitful to refer to Articles 121 and 122

of the Constitution. They read as follows:-

“121. Restriction on discussion in Parliament:

No discussions shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties expect upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided.

122. Courts not to inquire into proceedings of Parliament:-

(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.

(2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.‖

102. As we perceive, the aforesaid Articles are extremely

significant as they are really meant to state the restrictions

imposed by the Constitution on both the institutions.

103. In Raja Ram Pal (supra), a Constitution Bench, after

referring to U.P. Assembly case [Special Reference No. 1 of

1964] (supra), opined:-

―267. Indeed, the thrust of the decision was on the examination of the power to issue unspeaking warrants immune from the review of the courts, and 86

not on the power to deal with contempt itself. A close reading of the case demonstrates that the Court treated the power to punish for contempt as a privilege of the House. Speaking of the legislatures in India, it was stated: [U.P. Assembly case (Special Reference No. 1 of 1964),

―125. There is no doubt that the House has the power to punish for contempt committed outside its chamber, and from that point of view it may claim one of the rights possessed by a court of record.‖ (Emphasis supplied)

268. Speaking of the Judges‘ power to punish for contempt, the Court observed: [U.P. Assembly case (Special Reference No. 1 of 1964),]

―We ought never to forget that the power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct. We venture to think that what is true of the judicature is equally true of the legislatures.‖

And again:-

―269. It is evident, therefore, that in the opinion of the Court in U.P. Assembly case (Special Reference No. 1 of 1964), legislatures in India do enjoy the power to punish for contempt. It is equally clear that while the fact that the House of Commons 87

enjoyed the power to issue unspeaking warrants in its capacity of a court of record was one concern, what actually worried the Court was not the source of the power per se, but the ―judicial‖ nature of power to issue unspeaking warrant insofar as it was directly in conflict with the scheme of the Constitution whereby citizens were guaranteed fundamental rights and the power to enforce the fundamental rights is vested in the courts. It was not the power to punish for contempt about which the Court had reservations. Rather, the abovequoted passage shows that such power had been accepted by the Court. The issue decided concerned the non-reviewability of the warrant issued by the legislature, in the light of various constitutional provisions.‖

104. After referring to various other decisions, the Court

summarized the principles relating to the parameters of judicial

review in relation to exercise of parliamentary provisions. Some of

the conclusions being relevant for the present purpose are

reproduced below:-

―(a) Parliament is a coordinate organ and its views do deserve deference even while its acts are amenable to judicial scrutiny;

(b) The constitutional system of government abhors absolutism and it being the cardinal principle of our Constitution that no one, howsoever lofty, can claim to be the sole judge of the power given under the Constitution, mere coordinate constitutional status, or even the status of an exalted constitutional functionaries, does not disentitle this Court from exercising its jurisdiction of judicial review of actions which partake the character of judicial or quasi-judicial decision;

(c) The expediency and necessity of exercise of power or privilege by the legislature are for the 88

determination of the legislative authority and not for determination by the courts;

(d) The judicial review of the manner of exercise of power of contempt or privilege does not mean the said jurisdiction is being usurped by the judicature;

x x x x

(f) The fact that Parliament is an august body of coordinate constitutional position does not mean that there can be no judicially manageable standards to review exercise of its power;

(g) While the area of powers, privileges and immunities of the legislature being exceptional and extraordinary its acts, particularly relating to exercise thereof, ought not to be tested on the traditional parameters of judicial review in the same manner as an ordinary administrative action would be tested, and the Court would confine itself to the acknowledged parameters of judicial review and within the judicially discoverable and manageable standards, there is no foundation to the plea that a legislative body cannot be attributed jurisdictional error;

(h) The judicature is not prevented from scrutinising the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens;

(i) The broad contention that the exercise of privileges by legislatures cannot be decided against the touchstone of fundamental rights or the constitutional provisions is not correct;

(j) If a citizen, whether a non-Member or a Member of the legislature, complains that his fundamental rights under Article 20 or 21 had been contravened, it is the duty of this Court to examine the merits of the said contention, especially when the impugned action entails civil consequences;

(k) There is no basis to the claim of bar of exclusive cognizance or absolute immunity to the parliamentary proceedings in Article 105(3) of the Constitution;

89 (l) The manner of enforcement of privilege by the legislature can result in judicial scrutiny, though subject to the restrictions contained in the other constitutional provisions, for example Article 122 or 212;

(m) Article 122(1) and Article 212(1) displace the broad doctrine of exclusive cognizance of the legislature in England of exclusive cognizance of internal proceedings of the House rendering irrelevant the case-law that emanated from courts in that jurisdiction; inasmuch as the same has no application to the system of governance provided by the Constitution of India;

(n) Article 122(1) and Article 212(1) prohibit the validity of any proceedings in legislature from being called in question in a court merely on the ground of irregularity of procedure;

x x x x

(r) Mere availability of the Rules of Procedure and Conduct of Business, as made by the legislature in exercise of enabling powers under the Constitution, is never a guarantee that they have been duly followed;

(s) The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny;

(t) Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action;

(u) An ouster clause attaching finality to a determination does ordinarily oust the power of the court to review the decision but not on grounds of lack of jurisdiction or it being a nullity for some reason such as gross illegality, irrationality, violation of constitutional mandate, mala fides, non-

compliance with rules of natural justice and perversity.‖ [Emphasis supplied] 90

105. The aforesaid summarization succinctly deals with the

judicial review in the sense that the Constitutional Courts are not

prevented from scrutinizing the validity of the action of the

legislature trespassing on the fundamental rights conferred on

the citizens; that there is no absolute immunity to the

parliamentary proceeding under Article 105(3) of the

Constitution; that the enforcement of privilege by the legislature

can result in judicial scrutiny though subject to the restrictions

contained in other constitutional provisions such as Articles 122

and 212; that Article 122(1) and Article 212(1) prohibit the

validity of any proceedings in the legislature from being called in

question in a court merely on the ground of irregularity of

procedure, and the proceedings which may be tainted on account

of substantive or gross illegality or unconstitutionality are not

protected from judicial scrutiny.

106. We are presently concerned with the interpretation of two

constitutional provisions, namely, Articles 122 and 105. It has

been submitted by the learned counsel on behalf of the

petitioners that the reports of parliamentary committees have

various facets, namely, statement of fact made to the committee,

statement of policy made to the committee, statements of fact 91

made by Members of Parliament in Parliament and inference

drawn from facts and findings of fact and law and, therefore, the

Court is required to pose the question as to which of the above

aspects of the Parliamentary Committee Reports can be placed

reliance upon. The contention is structured on the foundation

that committee reports are admissible in evidence and in public

interest litigation in exercise of power under Article 32 for

interpreting the legislation and directing the implementation of

constitutional or statutory obligation by the executive.

N. Reliance on parliamentary proceedings as external aids

107. A Constitution Bench in R.S. Nayak v. A.R. Antulay81,

after referring to various decisions of this Court and development

in the law, opined that the exclusionary rule is flickering in its

dying embers in its native land of birth and has been given a

decent burial by this Court. The Constitution Bench further

observed that the basic purpose of all canons of the Constitution

is to ascertain with reasonable certainty the intention of the

Parliament and for the said purpose, external aids such as

reports of special committee preceding the enactment, the

existing state of law, the environment necessitating enactment of

81 (1984) 2 SCC 183 92

a legislation and the object sought to be achieved, etc. which the

Parliament held the luxury of availing should not be denied to the

Court whose primary function is to give effect to the real

intention of the legislature in enacting a statute. The Court was

of the view that such a denial would deprive the Court of a

substantial and illuminating aid to construction and, therefore,

the Court decided to depart from the earlier decisions and held

that reports of committees which preceded the enactment of a

law, reports of Joint Parliamentary Committees and a report of a

commission set up for collecting information can be referred to as

external aids of construction.

108. In this regard, we may also usefully state that the speeches

of Ministers in Parliament are referred to on certain occasions for

limited purposes. A Constitution Bench in State of West Bengal

v. Union of India82 has opined that it is, however, well settled

that the Statement of Objects and Reasons accompanying a Bill,

when introduced in Parliament, cannot be used to determine the

true meaning and effect of the substantive provisions of the

statute. They cannot be used except for the limited purpose of

understanding the background and the antecedent state of

82 AIR 1963 SC 1241 93

affairs leading up to the legislation. The same cannot be used as

an aid to the construction of the enactment or to show that the

legislature did not intend to acquire the proprietary rights vested

in the State or, in any way, to affect the State Governments‘

rights as owners of minerals. A statute, as passed by the

Parliament, is the expression of the collective intention of the

legislature as a whole, and any statement made by an individual,

albeit a Minister, of the intention and objects of the Act cannot be

used to cut down the generality of the words used in the statute.

109. In K.P. Varghese v. Income Tax Officer, Ernakulam and

another83, the Court, while referring to the budget speech of the

Minister, ruled that speeches made by members of legislatures on

the floor of the House where a Bill for enacting a statutory

provision is being debated are inadmissible for the purpose of

interpreting the statutory provision. But the Court made it clear

that the speech made by the mover of the Bill explaining the

reasons for introducing the Bill can certainly be referred to for

ascertaining the mischief sought to be remedied and the object

and the purpose of the legislation in question. Such a view, as

per the Court, was in consonance with the juristic thought not

83 (1981) 4 SCC 173 94

only in the western countries but also in India as in the exercise

of interpretation of a statute, everything which is logically

relevant should be admitted. Thereafter, the Court acknowledged

a few decisions of this Court where speeches made by the

Finance Minister were relied upon by the Court for the purpose of

ascertaining the reason for introducing a particular clause. Similar references have also been made in Dr. Ramesh

Yeshwant Prabhoo v. Prabhakar Kashinath Kunte and

others 84 . That apart, parliamentary debates have also been

referred to appreciate the context relating to the construction of a

statute in Novartis AG v. Union of India and others85, State of

Madhya Pradesh and another v. Dadabhoy’s New Chirimiri

Ponri Hill Colliery Co. Pvt. Ltd. 86 , Union of India v. Steel

Stock Holders Syndicate, Poona 87 , K.P. Varghese (supra),

and Surana Steels Pvt. Ltd. v. Dy. Commissioner of Income

Tax and others88.

110. In Ashoka Kumar Thakur v. Union of India and

others 89 , this Court, after referring to Crawford on Statutory

Construction, observed that the Rule of Exclusion followed in the

84 (1996) 1 SCC 130 85 (2013) 6 SCC 1 86 (1972) 1 SCC 298 87 (1976) 3 SCC 108 88 (1999) 4 SCC 306 89 (2008) 6 SCC 1 95

British Courts has been criticized by jurists as artificial and there

is a strong case for whittling down the said rule. The Court was of

the view that the trend of academic opinion and practice in the

European system suggests that the interpretation of a statute

being an exercise in the ascertainment of meaning, everything

which is logically relevant should be admissible which implies

that although such extrinsic materials shall not be decisive, yet

they should at least be admissible. Further, the Court took note

of the fact that there is authority to suggest that resort should be

had to these extrinsic materials only in case of incongruities and

ambiguities. Where the meaning of the words in a statute is

plain, then the language prevails, but in case of obscurity or lack

of harmony with other provisions and in other special

circumstances, it may be legitimate to take external assistance to

determine the object of the provisions, the mischief sought to be

remedied, the social context, the words of the authors and other

allied matters.

111. In Additional Commissioner of Income Tax, Gujarat v.

Surat Art Silk Cloth Manufacturers’ Association, Surat 90 ,

this Court held:-

90 (1980) 2 SCC 31 96

"It is legitimate to look at the state of law prevailing leading to the legislation so as to see what was the mischief at which the Act was directed. This Court has on many occasions taken judicial notice of such matters as the reports of parliamentary committees, and of such other facts as must be assumed to have been within the contemplation of the legislature when the Acts in question were passed.‖

112. We have referred to these authorities to highlight that the

reports or speeches have been referred to or not referred to for

the purposes indicated therein and when the meaning of a

statute is not clear or ambiguous, the circumstances that led to

the passing of the legislation can be looked into in order to

ascertain the intention of the legislature. It is because the reports

assume significance and become relevant because they precede

the formative process of a legislation.

113. In Pepper v. Hart91, Lord Browne-Wilkinson, delivering the

main speech, set out the test as follows:-

―I therefore reach the conclusion, subject to any question of Parliamentary privilege, that the exclusionary rule should be relaxed so as to permit reference to Parliamentary materials where (a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied upon are clear.‖

91 [1992] UKHL 3 : [1993] AC 593 : [1992] 3 WLR 1032 97

114. The Supreme Court of Canada in R. v. Vasil 92 relied on

parliamentary materials to interpret the phrase ―unlawful object‖

in Section 212(c) of the Canadian Criminal Code. Speaking for

the majority, Justice Lamer (as he then was) said:-

―Reference to Hansard is not usually advisable. However, as Canada has, at the time of codification, subject to few changes, adopted the English Draft Code of 1878, it is relevant to know whether Canada did so in relation to the various sections for the reasons advanced by the English Commissioners or for reasons of its own.

Indeed, a reading of Sir John Thompson's comments in Hansard of April 12, 1892, (House of Commons Debates, Dominion of Canada, Session 1892, vol. I, at pp. 1378-85) very clearly confirms that all that relates to murder was taken directly from the English Draft Code of 1878. Sir John Thompson explained the proposed murder sections by frequently quoting verbatim the reasons given by the Royal Commissioners in Great Britain, and it is evident that Canada adopted not only the British Commissioners' proposed sections but also their reasons.‖

The Canadian authorities, as is noticeable from Re Anti-

Inflation Act (Canada)93, have relaxed the exclusionary rule.

115. In Dharam Dutt and others v. Union of India and

others94, the Court took note of the three Parliamentary Standing

Committees appointed at different points of time which had

92 [1981] 1 SCR 469, 121 D.L.R. (3d) 41 93 [1976] 2 SCR 373, 68 D.L.R. (3d) 452 94 (2004) 1 SCC 712 98

recommended the taking over of Sapru House on the ground of

declining standard of the Institution. Further, this Court took

note that it had already pointed out in an earlier part of this

judgment that in the present case, successive parliamentary

committees had found substance in the complaints received that

an institution of national importance was suffering from

mismanagement and maladministration and in pursuance of

such PSC report, the Central Government acted on such findings.

116. In Kuldip Nayar (supra), certain amendments in the

Representation of the People Act, 1951 were challenged which

had the effect of adopting an open ballot system instead of a

secret ballot system for elections to the Rajya Sabha. Defending

the amendment, the Union of India submitted a copy of a Report

of the Ethics Committee of the Parliament which recommended

the open ballot system for the aforesaid purpose. The Committee

had noted the emerging trends of cross voting in elections for

Rajya Sabha and Legislative Councils in the State. It also made a

reference to rampant allegations that large sums of money and

other considerations encourage the electorate to vote in a

particular manner sometimes leading to defeat of official

candidates belonging to their own political party. In this context, 99

the Court took note of the recommendations of the Committee

Report while testing the vires of the impugned amendment.

117. From the aforesaid, it clear as day that the Court can take

aid of the report of the parliamentary committee for the purpose

of appreciating the historical background of the statutory

provisions and it can also refer to committee report or the speech

of the Minister on the floor of the House of the Parliament if there

is any kind of ambiguity or incongruity in a provision of an

enactment. Further, it is quite vivid on what occasions and

situations the Parliamentary Standing Committee Reports or the

reports of other Parliamentary Committees can be taken note of

by the Court and for what purpose. Relying on the same for the

purpose of interpreting the meaning of the statutory provision

where it is ambiguous and unclear or, for that matter, to

appreciate the background of the enacted law is quite different

from referring to it for the purpose of arriving at a factual finding.

That may invite a contest, a challenge, a dispute and, if a contest

arises, the Court, in such circumstances, will be called upon to

rule on the same.

118. In the case at hand, what is urged by the learned counsel

for the petitioners is that though no interpretation is involved, yet 100

they can refer to the report of the Parliamentary Standing

Committee to establish a fact which they have pleaded and

asserted in the writ petition. According to them, the committees

are constituted to make the executive accountable and when the

public interest litigation is preferred to safeguard the public

interest, the report assumes great significance and it is extremely

necessary to refer to the same to arrive at the truth of the

controversy. In such a situation, they would contend that the

question of aid does not relate to any kind of parliamentary

privilege. It is the stand of the petitioners that they do not intend

to seek liberty from the Parliament or the Parliamentary

Committee to be questioned or cross examined. In fact, reliance

of the report has nothing to do with what is protected by the

Constitution under Article 105. The court proceedings are

independent of the Parliament and based on multiple inputs,

materials and evidence and in such a situation, the parties are at

liberty to persuade the Court to come to a determination of facts

and form an opinion in law at variance with the parliamentary

committee report. The learned counsel for the petitioners would

further submit that advancing submissions relying on the report

would not come within the scope of parliamentary privilege. 101

O. Section 57(4) of the Indian Evidence Act

119. The learned counsel for the petitioners propound that under

Section 57(4) of the Evidence Act, the parliamentary standing

committee report can be judicially taken note of as such report

comes within the ambit of the said provision.

120. To appreciate the stand, it is necessary to scan the relevant

sub-section (4) of Section 57 of the Evidence Act. It reads as

follows:-

“57. Facts of which Court must take judicial notice:- The Court shall take judicial notice of the following facts:

x x x x x x x x x x x x x x x x x x x x x x x x

(4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the legislatures established under any law for the time being in force in a Province or in the State;‖

121. Section 57 is a part of Chapter III of the Evidence Act which

deals with "Facts which need not be proved". Section 57 rests on

the assumption that the facts scripted in the thirteen sub-

sections are relevant under any one or more Sections of

Chapter II which deals with "relevancy of facts". Thus, Section 57,

by employing the words "shall", casts an obligation upon the 102

Courts to take judicial notice of the said facts. Section 57, sub-

section (4) of the Evidence Act casts an obligation on the Courts

to take judicial notice of the course of proceedings of Parliament.

122. This Court, in Sole Trustee Lok Shikshana Trust v.

Commissioner of Income Tax, Mysore 95 , has observed that

Section 57, sub-section (4) enjoins upon the Courts to take

judicial notice of the course of proceedings of Parliament on the

assumption that it is relevant.

123. There can be no dispute that parliamentary standing

committee report being in the public domain is a public

document. Therefore, it is admissible under Section 74 of the

Evidence Act and judicial notice can be taken of such a

document as envisaged under Section 57(4) of the Evidence Act.

There can be no scintilla of doubt that the said document can be

taken on record. As stated earlier, it can be taken aid of to

understand and appreciate a statutory provision if it is unclear,

ambiguous or incongruous. It can also be taken aid of to

appreciate what mischief the legislative enactment intended to

avoid. Additionally, it can be stated with certitude that there can

be a fair comment on the report and a citizen in his own manner

95 (1976) 1 SCC 254 103

can advance a criticism in respect of what the report has stated.

Needless to emphasise that the right to fair comment is

guaranteed to the citizens. It is because freedom of speech, as

permissible within constitutional parameters, is essential for all

democratic institutions. Fair comments show public concern and,

therefore, such comments cannot be taken exception to. That is

left to public opinion and perception on which the grand pillar of

democracy is further strengthened. And, in all such

circumstances, the question of parliamentary privilege would not

arise.

124. In the case at hand, the controversy does not end there

inasmuch as the petitioners have placed reliance upon the

contents of the parliamentary standing committee report and the

respondents submit that they are forced to controvert the same.

Be it clearly stated, the petitioners intend to rely on the contents

of the report and invite a contest. In such a situation, the Court

would be duty bound to afford the respondents an opportunity of

being heard in consonance with the principles of natural justice.

This, in turn, would give rise to a very peculiar situation as the

respondents would invariably be left with the option either to: (i)

accept, without contest, the opinion expressed in the 104

parliamentary standing committee report and the facts stated

therein; or (ii) contest the correctness of the opinion of the

parliamentary standing committee report and the facts stated

therein. In the former scenario, the respondents at the very least

would be put in an inequitable and disadvantageous position. It

is in the latter scenario that the Court would be called upon to

adjudicate the contentious facts stated in the report. Ergo,

whenever a contest to a factual finding in a PSC Report is likely

and probable, the Court should refrain from doing so. It is one

thing to say that the report being a public document is

admissible in evidence, but it is quite different to allow a

challenge.

125. It is worthy to note here that there is an intrinsic difference

between parliamentary proceedings which are in the nature of

statement of a Minister or of a Mover of a bill made in the

Parliament for highlighting the purpose of an enactment or, for

that matter, a parliamentary committee report that had come into

existence prior to the enactment of a law and a

contestable/conflicting matter of ―fact‖ stated in the

parliamentary committee report. It is the parliamentary

proceedings falling within the former category of which Courts 105

are enjoined under Section 57, sub-section (4) to take judicial

notice of, whereas, for the latter category of parliamentary

proceedings, the truthfulness of the contestable matter of fact

stated during such proceedings has to be proved in the manner

known to law.

126. This again brings us to the hazardous zone wherein taking

judicial notice of parliamentary standing committee reports for a

factual finding will obviously be required to be proved for

ascertaining the truth of a contestable matter of fact stated in the

said report.

127. Taking judicial notice of the Parliamentary Standing

Committee report can only be to the extent that such a report

exists. As already stated, the said report can be taken aid of for

understanding the statutory provision wherever it is felt so

necessary or to take cognizance of a historical fact that is

different from a contest. The word ―contest‖, according to Black‘s

Law Dictionary, means to make defence to an adverse claim in a

Court of law; to oppose, resist or dispute; to strive to win or hold;

to controvert, litigate, call in question, challenge to defend. This

being the meaning of the word ―contest‖, the submission to 106

adjudge the lis on the factual score of the report is to be

negatived.

P. The decisions in which parliamentary standing committee report/s have been referred to

128. Before we proceed to record our conclusions, it is necessary

to allude to various authorities cited by the petitioners herein

highlighting the occasions where this Court has referred to and

taken note of various Parliamentary Committee reports. In

Catering Cleaners of Southern Railway v. Union of India

and another 96 , the catering cleaners of the Southern Railway

filed a writ petition praying for abolition of the contract labour

system and their absorption as direct employees of the principal

employer, viz., the Southern Railway. This Court referred to the

Parliamentary Committee Report under the Chairmanship of K.P.

Tewari which had dealt with the question of abolishing the

contract labour system and regularizing the services of the

catering cleaners. The Committee had, inter alia, recommended

that the government should consider direct employment of

catering cleaners by the Railway Administration to avoid their

exploitation.

96 (1987) 1 SCC 700 107

129. In State of Maharashtra v. Milind and others 97 , the

issue was whether the tribe of 'Halba-Koshtis' were treated as

'Halbas' in the specified areas of Vidarbha. This Court, in the said

case, referred to the report of Joint Parliamentary Committee

which did not make any recommendation to include 'Halba-

Koshti' in the Scheduled Tribes Order. Again, in Federation of

Railway Officers Association (supra), this Court alluded to the

reports and recommendations of several committees such as the

Railways Reforms Committee in 1984 which recommended the

formation of new four Zones; the Standing Committee Report of

Parliament on Railway which recommended for creation of new

zones on the basis of work load, efficiency and effective

management and the Rakesh Mohan Committee Report which

had suggested that the formation of additional zones would be of

dubious merit and would add substantial cost and be of little

value to the system.

130. In Ms. Aruna Roy and Others v. Union of India and

others98, the education policy framed by NCERT was challenged

by the petitioners. This Court while dealing with the said issue,

referred, in extensio, to the Parliamentary committee report which

97 (2001) 1 SCC 4 98 (2002) 7 SCC 368 108

had made several recommendations in this regard. After so

referring to the report, the Court was of the view that if the

recommendations made by the Parliamentary Committee are

accepted by the NCERT and are sought to be implemented, it

cannot be stated that its action is arbitrary or unjustified.

131. In M.C. Mehta v. Union of India and others99, this Court

referred to the report of the Standing Committee of Parliament on

Petroleum & Natural Gas which expressed concern over the

phenomenal rise of air pollution and made some

recommendations. The Court, in this case, made it clear that it

had mentioned the report only for indicating that the Government

was and is proactively supporting the reduction of vehicular

pollution by controlling the emission norms and complying with

the Bharat Stage standards.

132. In Lal Babu Priyadarshi v. Amritpal Singh 100 , while

dealing with a Trade Mark case under various sections of the

Trade and Merchandise Marks Act, 1958 [repealed by the Trade

Marks Act, 1999 (47 of 1999), this Court referred to the Eighth

Report on the Trade Marks Bill, 1993 submitted by the

Parliamentary Standing Committee which was of the opinion that

99 (2017) 7 SCC 243 100 (2015) 16 SCC 795 109

any symbol relating to Gods, Goddesses or places of worship

should not ordinarily be registered as a trade mark.

133. The petitioners have also referred to other cases such as

Gujarat Electricity Board v. Hind Mazdoor Sabha and

others101, Modern Dental College and Research Centre and

others v. State of Madhya Pradesh and others 102 and

Krishan Lal Gera v. State of Haryana and others103 wherein

also this Court has made a passing reference to reports of the

Parliament Standing Committees.

134. We have, for the sake of completeness, noted the decisions

relied upon by the petitioners to advance their stand. But it is

condign to mention here that in the abovereferred cases, the

question of contest/challenge never emerged. In all the cases, the

situation never arose that warranted any contest amongst the

competing parties for arriving at a particular factual finding.

That being the position, the said judgments, in our considered

opinion, do not render any assistance to the controversy in

question.

135. We have distinguished the said decisions, as we are

disposed to think that a party can always establish his case on

101 (1995) 5 SCC 27 102 (2016) 7 SCC 353 103 (2011) 10 SCC 529 110

the materials on record and the Court can independently

adjudicate the controversy without allowing a challenge to

Parliamentary Standing Committee report. We think so as the

Court has a constitutional duty to strike a delicate balance

between the legislature and judiciary. It is more so when the

issue does not involve a fundamental right that is affected by

parliamentary action. In such a situation, we may deal with the

concept of jurisprudential foundational principle having due

regard to constitutional conscience. The perception of self-evolved

judicial restraint and the idea of jurisprudential progression has

to be juxtaposed for a seemly balance. There is no strait-jacket

formula for determining what constitutes judicial restraint and

judicial progressionism. Sometimes, there is necessity for the

Courts to conceptualise a path that can be a wise middle path.

The middle course between these two views is the concept of

judicial engagement so that the concept of judicial restraint does

not take the colour of judicial abdication or judicial passivism.

Judicial engagement requires that the Courts maintain their

constitutional obligation to remain the sentinel on qui vive. It

requires a vigilant progressive judiciary for the rights and

liberties of the citizens to be sustained. Thus, as long as a 111

decision of a Court is progressive being in accord with the theory

of judicial engagement, the approach would be to ensure the

proper discharge of duty by the Constitutional Courts so as to

secure the inalienable rights of the citizens recognized by the

Constitution. A Constitutional Court cannot abdicate its duty to

allow injustice to get any space or not allow real space to a

principle that has certain range of acceptability. Stradford C.J.,

speaking the tone and tenor in Jajbhay v Cassim 104 , has

observed:-

"Now the Roman-Dutch law, which we must apply, is a living system capable of growth and development to allow adaptation to the increasing complexities and activities of modern civilised life. The instruments of that development are our own Courts of law. In saying that, of course, I do not mean that it is permissible for a Court of law to alter the law; its function is to elucidate, expound and apply the law. But it would be idle to deny that in the process of the exercise of those functions rules of law are slowly and beneficially evolved."

136. In Miranda v. Arizona105, the Supreme Court of United

States observed:-

'That the Court's holding today is neither compelled nor even strongly suggested by the language of the Fifth Amendment, is at odds with American and English legal history, and involves a departure from a long line of precedent does not prove either that

104 1939 AD 537 at p 542 105 384 U.S. 436 (1966) 112

the Court has exceeded its powers or that the Court is wrong or unwise in its present reinterpretation of the Fifth Amendment. It does, however, underscore the obvious -- that the Court has not discovered or found the law in making today's decision, nor has it derived it from some irrefutable sources; what it has done is to make new law and new public policy in much the same way that it has in the course of interpreting other great clauses of the Constitution.

This is what the Court historically has done. Indeed, it is what it must do, and will continue to do until and unless there is some fundamental change in the constitutional distribution of governmental powers."

137. In the Indian context, this Court has recognized the

comprehensive, progressive and engaging role of Constitutional

Courts in a catena of judgments starting from Lakshmi Kant

Pandey v. Union of India106, Vishaka and others v. State of

Rajasthan and others107, Prakash Singh and others v. Union

of India and others108, Common Cause (A Regd. Society) v.

Union of India109 and Shakti Vahini v. Union of India and

others110. In all these judgments, the dynamic and spirited duty

of the Supreme Court has been recognized and it has been

highlighted that this Court ought not to shy away from its

primary responsibility of interpreting the Constitution and other

106 (1984) 2 SCC 244 107 (1997) 6 SCC 241 108 (2006) 8 SCC 1 109 2018 (4) SCALE 1 110 2018 (5) SCALE 51 113

statutes in a manner that is not only legally tenable but also

facilitates the progress and development of the avowed purpose of

the rights-oriented Constitution. The Constitution itself being a

dynamic, lively and ever changing document adapts to the

paradigm of epochs. That being the situation, it is also for this

Court to take a fresh look and mould the existing precepts to suit

the new emerging situations. Therefore, the Constitutional Courts

should always adopt a progressive approach and display a

dynamic and spirited discharge of duties regard being had to the

concepts of judicial statesmanship and judicial engagement, for

they subserve the larger public interest. In the case at hand, the

constitutional obligation persuades us to take the view that the

Parliamentary Standing Committee Report or any Parliamentary

Committee Report can be taken judicial notice of and regarded as

admissible in evidence, but it can neither be impinged nor

challenged nor its validity can be called in question.

Q. Conclusions

138. In view of the aforesaid analysis, we answer the referred

questions in the following manner:-

114

(i) Parliamentary Standing Committee report can be

taken aid of for the purpose of interpretation of a

statutory provision wherever it is so necessary and

also it can be taken note of as existence of a

historical fact.

(ii) Judicial notice can be taken of the Parliamentary

Standing Committee report under Section 57(4) of

the Evidence Act and it is admissible under

Section 74 of the said Act.

(iii) In a litigation filed either under Article 32 or

Article 136 of the Constitution of India, this Court

can take on record the report of the Parliamentary

Standing Committee. However, the report cannot

be impinged or challenged in a court of law.

(iv) Where the fact is contentious, the petitioner can

always collect the facts from many a source and

produce such facts by way of affidavits, and the

Court can render its verdict by way of independent

adjudication.

(v) The Parliamentary Standing Committee report

being in the public domain can invite fair comments 115

and criticism from the citizens as in such a

situation, the citizens do not really comment upon

any member of the Parliament to invite the hazard

of violation of parliamentary privilege.

139. The reference is answered accordingly.

140. Let the Writ Petitions be listed before the appropriate Bench

for hearing.

…..………………………CJI (Dipak Misra)

….…..…...…….………….J. (A.M. Khanwilkar) New Delhi;

May 09, 2018 REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 558 OF 2012

KALPANA MEHTA & ORS .... PETITIONERS

VERSUS

UNION OF INDIA & ORS ....RESPONDENTS

WITH

WRIT PETITION (CIVIL) No. 921 OF 2013

J U D G M E N T

Dr D Y CHANDRACHUD, J

This judgment has been divided into sections to facilitate analysis. They are:

A Reference to the Constitution Bench B Submissions C The Constitution D Parliamentary Standing Committees E Parliamentary privilege

1 PART A

E.1 UK Decisions E.2 India F Separation of powers : a nuanced modern doctrine G A functional relationship H Conclusion

A Reference to the Constitution Bench

1 Two public interest petitions instituted before this Court under Article 32

of the Constitution in 2012 and 2013 have placed into focus the process

adopted for licensing vaccines1 to prevent cervical cancer. The petitioners

allege that the process of licensing was not preceded by adequate clinical trials

to ensure the safety and efficacy of the vaccines. Nearly twenty four thousand

adolescent girls are alleged to have been vaccinated in Gujarat and before its

bifurcation, in Andhra Pradesh without following safeguards. The trials are

alleged to have been conducted under the auspices of a project initiated by the

Sixth respondent. The drugs are manufactured and marketed by the Seventh

and Eighth respondents. Each of them produces pharmaceuticals. The petition

calls into question the role of the Drugs Controller General of India and the

Indian Council of Medical Research. The administration of the vaccine is alleged

to have resulted in serious health disorders. Deaths were reported.

1 Human Papillomavirus (HPV)

2 PART A

2 On 12 August 2014, a Bench of two judges formulated the questions

which would have to be addressed in the course of the proceedings.2 They are:

“(i) Whether before the drug was accepted to be used as a vaccine in India, the Drugs Controller General of India and the ICMR had followed the procedure for said introduction?

(ii) What is the action taken after the Parliamentary Committee had submitted the 72nd Report on 30.8.2013?

(iii) What are the reasons for choosing certain places in Gujarat and Andhra Pradesh?

(iv) What has actually caused the deaths and other ailments who had been administered the said vaccine?

(v) Assuming this vaccine has been administered, regard being had to the nature of the vaccine, being not an ordinary one, what steps have been taken for monitoring the same by the competent authorities of the Union of India, who are concerned with the health of the nation as well as the State Governments who have an equal role in this regard?

(vi) The girls who were administered the vaccine, whether proper consent has been taken from their parents/guardians, as we have been apprised at the Bar that the young girls had not reached the age of majority?

(vii) What protocol is required to be observed/followed, assuming this kind of vaccination is required to be carried out?”

3 At the hearing, the petitioners relied upon the 81st Report of the

Parliamentary Standing Committee dated 22 December 2014. The petitioners

sought to place reliance on the Report so as to enable the Court to be apprised

of the facts and to facilitate its conclusions and directions. This was objected to.

4 The issue which arose before the Court was whether a report of a

Parliamentary Standing Committee can be relied upon in a public interest

2 Writ Petition (Civil) No. 558 of 2012

3 PART A

litigation under Article 32 or Article 226. If it could be adverted to, then an allied

issue was the extent to which reliance could be placed upon it and its probative

value. The then Attorney General for India, in response to a request for

assistance, submitted that reports of Parliamentary Standing Committees are

at best an external aid to construction, to determine the surrounding

circumstances or historical facts for understanding the mischief sought to be

remedied by legislation. The Union government urged that reports of

Parliamentary Standing Committees are meant to guide the functioning of its

departments and are a precursor to debates in Parliament. However, those

reports (it was urged) cannot be utilized in court nor can they be subject to a

contest between litigating parties.

5 In an order dated 5 April 2017, a two judge Bench of this Court adverted

to Articles 105 and 122 of the Constitution and observed thus:

“69. The purpose of referring to the aforesaid Articles is that while exercising the power of judicial review or to place reliance on the report of the Parliamentary Standing Committee, the doctrine of restraint has to be applied by this Court as required under the Constitution. What is argued by the learned counsel for the petitioners is that there is no question of any kind of judicial review from this Court or attributing anything on the conduct of any of the members of the Committee, but to look at the report for understanding the controversy before us. The submission “looking at the report,” as we perceive, is nothing but placing reliance thereupon. The view of a member of Parliament or a member of the Parliamentary Standing Committee who enjoys freedom of speech and expression within the constitutional parameters and the rules or regulations framed by Parliament inside Parliament or the Committee is not to be adverted to by the court in a lis.”3

3 Id, at pages 320-321

4 PART A

6 The referring order notes that when a mandamus is sought, the Court has

to address the facts which are the foundation of the case and the opposition, in

response. If a Court were to be called upon to peruse the report of a

Parliamentary Standing Committee, a contestant to the litigation may well seek

to challenge it. Such a challenge, according to the Court, in the form of “an

invitation to contest” the report of a Parliamentary Committee “is likely to disturb

the delicate balance that the Constitution provides between the constitutional

institutions”. Such a contest and adjudication would (in that view) be contrary to

the privileges of Parliament which the Constitution protects. Hence according

to the Court:

“73…we are prima facie of the view that the Parliamentary Standing Committee report may not be tendered as a document to augment the stance on the factual score that a particular activity is unacceptable or erroneous. “

A substantial question involving the interpretation of the Constitution having

arisen, two questions have been referred to the Constitution Bench under Article

145(3):

“(i) Whether in a litigation filed before this Court either under Article 32 or Article 136 of the Constitution of India, the Court can refer to and place reliance upon the report of the Parliamentary Standing Committee; and

(ii) Whether such a report can be looked at for the purpose of reference and, if so, can there be restrictions for the purpose of reference regard being had to the concept of parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive?.”4

4 Id, at page 322

5 PART B

B Submissions

7 Leading the submissions on behalf of the petitioners, Mr Harish Salve,

learned Senior Counsel underscored the importance of three constitutional

principles:

(i) Privileges of Parliament; (ii) Comity of institutions; and (iii) Separation of powers.

Based on them, the submission is that reference to what transpires in a

co-equal constitutional institution must be circumspect and consistent with due

deference to and comity between institutions. Freedom of speech and

expression is implicit in the working of every institution and it is that institution

alone which can regulate its own processes. In Parliament, what speakers state

is controlled by the House or, as the case may be, by its Committee and a

falsehood in Parliament is punishable by that institution alone. It has been urged

that if what is stated in a report of a Parliamentary Standing Committee were to

be impeached in a court of law, that would affect the control of the Committee

and of Parliament itself. The functions performed by Parliament and by the

judiciary as two co-equal branches are, it is urged, completely different.

Parliamentary business is either for the purpose of enforcing accountability of

the government or to enact legislation. The function of judicial institutions is

adjudicatory. Courts resolve a lis on objective satisfaction and have a duty to

6 PART B

act judicially. Courts would not, it has been urged, receive as evidence of facts

any material whose truth or integrity cannot be assailed in court.

8 On the above conceptual foundation, Mr Salve urged that the report of a

Parliamentary Standing Committee can be relied upon in a judicial proceeding

in two exceptional situations:

(i) Where it becomes necessary for the court to examine the legislative history

of a statutory provision;

(ii) As a source from which the policy of the government, as reflected in the

statements made by a Minister before the House can be discerned; and

(iii) Reports of Parliamentary Standing Committees are meant for

consideration before Parliament and can only be regarded as “considered

advice” to the House.

Except in the two situations enumerated above, no petition seeking a

mandamus can be brought before the court on the basis of such a report for the

reason that (i) No right can be founded on the recommendation of a House

Committee; and (ii) Relying on such a report may result in a challenge before

the court, impinging upon Parliamentary privileges.

9 Mr K K Venugopal, the learned Attorney General for India has supported

the adoption of a rule of exclusion, based on the privileges of the legislature,

7 PART B

separation of powers and as a matter of textual interpretation of the

Constitution. In his submission:

I Committees of Parliament being an essential adjunct to Parliament, and

their reports being for the purpose of advising and guiding Parliament in

framing laws and the executive for framing policies, it would be a breach

of privilege of Parliament to judicially scrutinize and/or review these

reports for any purpose whatsoever;

II The broad separation of powers, which is a part of the basic structure of

the Constitution of India, would prevent Courts from subjecting the reports

of Parliamentary Standing Committees to scrutiny or judicial review; and

III A conjoint reading of Articles 105 and 122 of the Constitution would

establish that, expressly or by necessary implication, there is a bar on the

Courts from scrutinizing or judicially reviewing the functioning or reports of

the Committees of Parliament.

10 Refuting the submissions which have been urged by the Attorney General

and on behalf of the pharmaceutical companies, Mr. Colin Gonsalves, learned

Senior Counsel urges that there can be no objection to reliance being placed

on the Report of a Parliamentary Standing Committee where (as in the present

case) there is no attempt

(i) to criticize Parliament;

(ii) to summon a witness; or

8 PART B

(iii) to breach a privilege of the legislating body.

The Report of a Parliamentary Standing Committee is (it is urged) relied upon

only for the court to seek guidance from it. The court may derive such support

in whichever manner it may best regard in the interest of justice, to advance a

cause which has been brought in a social action litigation. According to Mr

Gonsalves, the core of the submission (urged by Mr Salve) is that because his

clients object to the findings in the Report, it becomes a contentious issue. Mr

Gonsalves submits that this Court should not allow what in substance is an

argument for a black out against the highest court taking notice of the report in

its PIL jurisdiction. The submission is that the Court need not treat any of the

facts contained in the Report as conclusive except those that are permitted by

Section 57 of the Indian Evidence Act 1872. No mandamus is sought that the

recommendations of the Parliamentary Committee be enforced. The Court, it

has been urged, will not be invited to comment upon the Report even if it were

not to agree with the contents of the Report. Learned Counsel urged that the

legislative function of Parliament is distinct from the oversight which it exercises

over government departments. An issue of parliamentary privileges arises when

the court makes a member of Parliament or of a Parliamentary Committee liable

in a civil or criminal action for what is stated in Parliament. Such is not the

position here. Mr Gonsalves submitted that in significant respects, our

Constitution marks a historical break from the English Parliamentary tradition.

India has adopted the doctrine of constitutional supremacy and not

9 PART B

Parliamentary sovereignty, as in the UK. Hence, cases decided under the

English Common Law cannot be transplanted, without regard to context, in

Indian jurisprudence on the subject. The unrestrained use of parliamentary

privileges, it has been urged, stands modified in the Indian context, which is

governed by constitutional supremacy. In matters involving public interest or

issues of a national character, both the institutions – Parliament and the courts

– must act together. As a matter of fact, Parliament has placed the Report of its

Standing Committee in the public domain. It is ironical, Mr Gonsalves urges,

that in the present case, it is the executive which seeks to protect itself from

disclosure in the guise of parliamentary privileges. Finally, it has been urged

that the public interest jurisdiction is not adversarial and constitutes a distinctly

Indian phenomenon. Where the fulfilment and pursuit of a constitutional goal,

national purpose or public interest is in issue, both Parliament and the judiciary

will act in comity. No issue arises here in relation to the separation of powers or

breach of Parliamentary privilege. On the contrary, it has been submitted that

the approach of the respondents is not in accordance with the march of

transparency in our law.

11 Mr Anand Grover, learned Senior Counsel submitted that if there is no

dispute that a certain statement was made before Parliament or, as the case

may be, a Parliamentary Standing Committee, such a statement can be relied

upon as a fact of it being stated in Parliament. The truth of the statement is, in

the submission of the learned Senior Counsel, another and distinct issue. The

10 PART C

Report is uncontentious not as regards the truth of its contents but of it having

been made. The court in the exercise of its power of judicial review will not hold

that an inference drawn by a Parliamentary Committee is wrong. But the court

can certainly look at a statement where there is no dispute of it having been

made.

12 Mr Shyam Divan and Mr Gourab Banerji, learned Senior Counsel have

broadly pursued the same line of argument as the learned Attorney General for

India and Mr Harish Salve.

C The Constitution

13 Articles 105, 118, 119 and 121 are comprised in Part V of the Constitution

which deals with the Union and form a part of Chapter II, which deals with

Parliament. Article 105 is extracted below:

“105.(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.

(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.

(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, [shall be those of that House and of its members and

11 PART C

committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.]

(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.”

14 The first major principle which emerges from Article 105 is that it expects,

recognizes and protects the freedom of speech in Parliament. Stated in a

sentence, the principle enunciates a vital norm for the existence of democracy.

Parliament represents collectively, through the representative character of its

members, the voice and aspirations of the people. Free speech within the

Parliament is crucial for democratic governance. It is through the fearless

expression of their views that Parliamentarians pursue their commitment to

those who elect them. The power of speech exacts democratic accountability

from elected governments. The free flow of dialogue ensures that in framing

legislation and overseeing government policies, Parliament reflects the diverse

views of the electorate which an elected institution represents.

15 The Constitution recognizes free speech as a fundamental right in Article

19(1)(a). A separate articulation of that right in Article 105(1) shows how

important the debates and expression of view in Parliament have been viewed

by the draftspersons. Article 105(1) is not a simple reiteration or for that matter,

a surplusage. It embodies the fundamental value that the free and fearless

exposition of critique in Parliament is the essence of democracy. Elected

12 PART C

members of Parliament represent the voices of the citizens. In giving expression

to the concerns of citizens, Parliamentary speech enhances democracy. Article

105(1) emphasizes free speech as an institutional value, apart from it being a

part of individual rights. Elected members of the legislature continue to wield

that fundamental right in their individual capacity. Collectively, their expression

of opinion has an institutional protection since the words which they speak are

spoken within the portals of Parliament. This articulated major premise is

however subject to the provisions of the Constitution and is conditioned by the

procedure of Parliament embodied in its rules and standing orders. The

recognition in clause (1) that there shall be freedom of speech in Parliament is

effectuated by the immunity conferred on Members of Parliament against being

liable in a court of law for anything said or for any vote given in Parliament or a

committee. Similarly, a person who publishes a report, paper, votes or

proceedings under the authority of Parliament is protected against liability in

any court. In other respects – that is to say, on matters other than those falling

under clause (1) and (2), Parliament has been empowered to define the powers,

privileges and immunities of each of its Houses and of its members and

committees. Until Parliament does so, those powers, privileges and immunities

are such as existed immediately before the enforcement of the 44th amendment

to the Constitution5. Clause (4) of Article 105 widens the scope of the protection

by making it applicable “in relation to persons” who have a right to speak in or

to take part in the proceedings before the House or its committees. The

5 The Constitution (44th amendment) Act, 1978 came into force from 20 June, 1979.

13 PART C

protection afforded to Members of Parliament is extended to all such persons

as well. Committees of the Houses of Parliament are established by and under

the authority of Parliament. They represent Parliament. They are comprised

within Parliament and are as much, Parliament.

16 Article 118 deals with the Rules of Procedure of Parliament:

“118.(1) Each House of Parliament may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business.

(2) Until rules are made under clause (1), the rules of procedure and standing orders in force immediately before the commencement of this Constitution with respect to the Legislature of the Dominion of India shall have effect in relation to Parliament subject to such modifications and adaptations as may be made therein by the Chairman of the Council of States or the Speaker of the House of the People, as the case may be.

(3) The President, after consultation with the Chairman of the Council of States and the Speaker of the House of the People, may make rules as to the procedure with respect to joint sittings of, and communications between, the two Houses.

(4) At a joint sitting of the two Houses the Speaker of the House of the People, or in his absence such person as may be determined by rules of procedure made under clause (3), shall preside.”

The procedure and conduct of business of Parliament are governed by the rules

made by each House. The rule making authority is subject only to the provisions

of the Constitution. Until rules are framed, the procedure of Parliament was to

be governed by the rules of procedure and Standing Orders which applied to

the legislature of the Dominion of India immediately before the commencement

of the Constitution (subject to adaptations and modifications). Rules of

14 PART C

procedure for joint sittings of the two Houses of Parliament and in regard to

communications between them are to be framed by the President in

consultation with the Chairman of the Rajya Sabha and the Speaker of the Lok

Sabha.

17 Article 119 provides for regulation by law of the procedure in Parliament

in relation to financial business. Article 119 provides thus:

“119.Parliament may, for the purpose of the timely completion of financial business, regulate by law the procedure of, and the conduct of business in, each House of Parliament in relation to any financial matter or to any Bill for the appropriation of moneys out of the Consolidated Fund of India, and, if and so far as any provision of any law so made is inconsistent with any rule made by a House of Parliament under clause (1) of article 118 or with any rule or standing order having effect in relation to Parliament under clause (2) of that article, such provision shall prevail.”

Article 119 thus embodies a special provision which enables Parliament to

regulate the procedure for and conduct of business in each House in relation to

financial matters or for appropriation of monies from the Consolidated Fund.

18 Article 122 contains a bar on courts inquiring into the validity of any

proceedings of Parliament on the ground of an irregularity of procedure:

“122.(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.

(2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the

15 PART C

jurisdiction of any court in respect of the exercise by him of those powers.”

Article 122 protects the proceedings in Parliament being questioned on the

ground of an irregularity or procedure. In a similar vein, a Member of Parliament

or an officer vested with authority under the Constitution to regulate the

procedure or the conduct of business (or to maintain order) in Parliament is

immune from being subject to the jurisdiction of any Court for the exercise of

those powers. Those who perform the task – sometimes unenviable – of

maintaining order in Parliament are also protected, to enable them to discharge

their functions dispassionately.

19 The provisions contained in Chapter II of Part V are mirrored, in the case

of the State Legislatures, in Chapter III of Part VI. The corresponding provisions

in regard to State Legislatures are contained in Articles 194, 208, 209 and 212.

20 The fundamental principle which the Constitution embodies is in terms of

its recognition of and protection to the freedom of speech in Parliament.

Freedom of speech has been entrenched by conferring an immunity against

holding a Member of Parliament liable for what has been spoken in Parliament

or for a vote which has been tendered. The freedom to speak is extended to

other persons who have a right to speak in or take part in the proceedings of

Parliament. Parliament is vested with the authority to regulate its procedures

and to define its powers, privileges and immunities. The same protection which

16 PART D

extends to Parliamentary proceedings is extended to proceedings in or before

the Committees constituted by each House. Parliament has been vested with a

complete and exclusive authority to regulate its own procedure and the conduct

of its business.

21 While making the above provisions, the Constitution has carefully

engrafted provisions to ensure institutional comity between Parliament and the

judiciary. Under Article 121, the conduct of a Judge of the Supreme Court or of

a High Court in the discharge of duties cannot be discussed in Parliament

(except upon a motion for removal). Article 211 makes a similar provision in

regard to the state legislatures.

D Parliamentary Standing Committees

22 Parliamentary Committees exist both in the Westminster form of

government in the United Kingdom as well in the Houses of Parliament in India.

In the UK, Select Committees have emerged as instruments through which

Parliament scrutinizes the policies and actions of government and enforces

accountability of government and its officers. Select committees are composed

of specifically nominated members of Parliament and exercise the authority

which the House delegates to them. The role of select committees has been set

17 PART D

forth in Erskine May’s Treatise on The Law, Privileges, Proceedings and

Usage of Parliament6 :

“Select committees are appointed by the House to perform a wide range of functions on the House’s behalf. Most notably they have become over recent years the principal mechanism by which the House discharges its responsibilities for the scrutiny of government policy and actions. Increasingly this scrutiny work has become the most widely recognized and public means by which Parliament holds government Ministers and their departments to account.”

The scope of deliberations or inquiries before a Select Committee is defined in

the order by which the committee is appointed. When a Bill is referred to a

Select Committee, the Bill constitutes the order of reference7. Select

committees are a microcosm of the House. During the course of their work,

Select Committees rely upon documentary and oral evidence8:

“Once received by the committee as evidence, papers prepared for a committee become its property and may not be published without the express authority of the committee. Some committees have agreed to a resolution at the beginning of an inquiry authorizing witnesses to publish their own evidence.”

Evidence which has been collected during the course of an inquiry is published

with the report of the committee9:

“It is usual practice of committees to publish the evidence which they have taken during the course of an inquiry with the report to which the evidence is relevant. In the case of longer inquiries, the evidence may be separately published during the course of the inquiry. In such cases, however, that evidence may be published again with the report. Additionally,

6 Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, (Lexis Nexis, 24 th edn., 2011), 37.

7 Id, at pages 805-806.

8 Erskine May, at page 818.

9 Erskine May, at page 825.

18 PART D

committees may take evidence with no intention of producing a subsequent report and publish it without comment.”

A Select committee decides when to publish any report which it has agreed10.

Article 105 of the Indian Constitution recognizes committees of the Houses of

Parliament. Rules of Procedure of the Lok Sabha and the Rajya Sabha framed

under Article 118(1) of the Constitution inter alia provide for the organization

and working of these committees11.

23 The rules governing procedure and the conduct of business in the Rajya

Sabha provide for the constitution of the committees of the House. Chapter IX

of the Rules contains provisions relating to legislation. Provisions have been

made for Bills which originate in the Rajya Sabha and for those which originate

in the Lok Sabha and are transmitted to the Rajya Sabha. Under Rule 72,

members of a Select Committee for a Bill are appointed by the Rajya Sabha

when a motion that the Bill be referred to a Select Committee is made. Rule 84

empowers the Select Committee to require the attendance of witnesses or the

production of papers or records. The Select Committee can hear expert

evidence and representatives of special interests affected by the measure.

Documents submitted to the Committee cannot be withdrawn or altered without

its knowledge and approval. The Select Committee, under Rule 85, is

empowered to decide upon its procedure and the nature of questions which it

10 Erskine May, at page 838 11Rules of Procedure and Conduct of Business in Lok Sabha, (Lok Sabha Secretariat, 15 th edn., April 2014). Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha), (published by the Secretary General, 9th edn., August 2016).

19 PART D

may address to a witness called before it. Rule 86 provides for the printing and

publication of evidence and empowers the Committee to direct that the

evidence or a summary be laid on the table. Evidence tendered before the

Select Committee can only be published after it has been laid on the table. The

Select Committee prepares its report on the Bill referred to it, under Rule 90.

Under Rule 91, the report of the Select Committee on a Bill, together with

minutes of dissent, is presented to the Rajya Sabha by the Chairperson of the

Committee. Under Rule 92, the Secretary General must print every report of a

Select Committee. The report together with the Bill proposed by the Select

Committee has to be published in the Gazette. The rules contemplate the

procedure to be followed in the Rajya Sabha for debating and discussing the

report and for considering amendments, leading up to the eventual passage of

the Bill. In a manner similar to reference of Bills originating in the Rajya Sabha

to Select Committees, Bills which are transmitted from the Lok Sabha to the

Rajya Sabha may be referred to a Select Committee under Rule 125, if a motion

for that purpose is carried.

24 Chapter XXII of the Rules contains provisions in regard to Department

related Parliamentary Standing Committees. Rule 268 stipulates that there shall

be Parliamentary Standing Committees related to Ministries/Departments. The

Third schedule elucidates the name of each Committee and the

Ministries/Departments which fall within its purview. Under Rule 269, each such

Committee is to consist of not more than 31 members: 10 to be nominated by

20 PART D

the Chairperson from the Members of the Rajya Sabha and 21 to be nominated

by the Speaker from the Members of the Lok Sabha. Rule 270 specifies the

functions of the Standing Committees:

“270. Functions

Each of the Standing Committees shall have the following functions, namely:-

(a) to consider the Demands for Grants of the related Ministries/Departments and report thereon. The report shall not suggest anything of the nature of cut motions;

(b) to examine Bills, pertaining to the related Ministries/ Departments, referred to the Committee by the Chairman or the Speaker, as the case may be, and report thereon;

(c) to consider the annual reports of the Ministries/Departments and report thereon; and

(d) to consider national basic long-term policy documents presented to the Houses, if referred to the Committee by the Chairman or the Speaker, as the case may be, and report thereon:

Provided that the Standing Committees shall not consider matters of day-to-day administration of the related Ministries/Departments.”

Rule 274 envisages that the report of the Standing Committee “shall be based

on broad consensus” though a member may record a dissent. The report of the

Committee is presented to the Houses of Parliament. Under Rule 275,

provisions applicable to Select Committees on Bills apply mutatis mutandis to

the Standing Committees. Rule 277 indicates that the report of a Standing

Committee is to have persuasive value and is treated as advice to the House:

“277. Reports to have persuasive value

The report of a Standing Committee shall have persuasive value and shall be treated as considered advice given by the Committee.”

21 PART D

Department related Parliamentary Standing Committees are Committees of the

Houses of Parliament. The Committees can regulate their procedure for

requiring the attendance of persons and for the production of documents. The

Committees can hear experts or special interests. These Committees ensure

parliamentary oversight of the work of the ministries/departments of

government. As a part of that function, each Committee considers demands for

grants, examines Bills which are referred to it, considers the annual reports of

the ministry/department and submits reports on national long-term policy

documents, when they have been referred for consideration. The reports of

these Committees are published and presented to the Houses of Parliament.

They have a persuasive value and are advice given by the Committee to

Parliament.

25 Besides the Department related Standing Committees, there is a General

Purposes Committee (Chapter XXIII) whose function is to consider and advise

on matters governing the affairs of the House, referred by the Chairperson.

Chapter XXIV provides for the constitution of a Committee on Ethics to oversee

“the moral and ethical conduct” of members, prepare a code of conduct,

examine cases of alleged breach and to tender advise to members on questions

involving ethical standards.

22 PART E

E Parliamentary privilege

E.1 UK Decisions

26 In the UK, a body of law has evolved around the immunity which is

afforded to conduct within or in relation to statements made to Parliament

against civil or criminal liability in a court of law. The common law also affords

protection against the validity of a report of a Select Committee being

challenged in a court.

27 Article 9 of the Bill of Rights, 1689 declares that:

“..That the freedom of speech and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament…”

Construed strictly, the expression “out of Parliament” will effectively squelch any

discussion of the proceedings of Parliament, outside it. This would compromise

to the need for debate and discussion on matters of governance in a

democracy. Hence, there has been an effort to bring a sense of balance: a

balance which will ensure free speech within Parliament but will allow a free

expression of views among citizens. Both are essential to the health of

democracy.

23 PART E

Article 9 has provided the foundation for a line of judicial precedent in the

English Courts. In 1884, the principle was formulated In Bradlaugh v

Gossett12:

“The House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the Statute law which has relation to its internal procedure only. What is said or done within its walls cannot be inquired into a court of law. A resolution of the House of Commons cannot change the law of the land. But a court of law has no right to inquire into the propriety of a resolution of the House restraining a member from doing within the walls of the House itself something which by the general law of the land he had a right to do.”

In Dingle v Associated Newspapers Ltd13, the above formulation was held to

constitute “a clear affirmation of the exclusive right of Parliament to regulate its

own internal proceedings”. Applying that principle, the Queen’s Bench Division

ruled that the report of a Select Committee of the House of Commons could not

be impugned outside Parliament. This principle was applied in Church of

Scientology of California v Johnson-Smith14, when an action for libel was

brought against a Member of Parliament for a statement made during the

course of a television interview. In order to refute the defendants’ plea of fair

comment, the plaintiff sought to prove malice by leading evidence of what had

taken place in Parliament. Rejecting such an attempt, the court adverted to the

following statement of principle in Blackstone:

“The whole of the law and custom of Parliament has its origin from this one maxim, “that whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.”

12 (1884) 12 Q.B.D. 271 13 (1960) 2 Q.B. 405 14 (1972) 1 Q.B. 522

24 PART E

Reiterating that principle, the court held:

“…what is said or done in the House in the course of any proceedings there cannot be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arises out of something done outside the House.”

The decision involved a libel action brought against a Member of Parliament for

a statement made outside. The court rejected an attempt to rely upon what was

stated in Parliament to establish a case of malice against the defendant.

28 In Pepper (Inspector of Taxes) v Hart15, Lord Browne-Wilkinson held

for the House of Lords that there was a valid reason to relax the conventional

rule of exclusion under which reference to Parliamentary material, as an aid to

statutory construction, was not permissible. The learned Law Lord held:

“In my judgment, subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words.”

Holding that such a relaxation would not involve the court criticizing what has

been said in Parliament since the court was only giving effect to the words used

by the Minister, the court held that the exclusionary rule should be relaxed to

permit reference to Parliamentary materials where:

“(a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more

15 (1992) 3 W.L.R. 1032

25 PART E

statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied upon are clear.”

29 The decision of the Privy Council in Richard William Prebble v

Television New Zealand (“Prebble”)16 arose from a case where, in a

television programme transmitted by the defendant, allegations were levelled

against the Government of New Zealand, involving the sale of state owned

assets to the private sector while the plaintiff was the Minister of the department.

In his justification, the defendant alleged that the plaintiff had made statements

in the House calculated to mislead. Lord Browne-Wilkinson held that the

defendant was precluded from questioning a statement made by the plaintiff

before the House of Parliament. The principle was formulated thus:

“In addition to article 9 itself, there is a long line of authority which supports a wider principle, of which article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognize their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges: Burdett v. Abbot (1811) 14 East 1; Stockdale v. Hansard (1839) 9 Ad. & EI. 1;

Bradlaugh v. Gossett (1884) 12 Q.B.D. 271; Pickin v. British Railways Board (1974) A.C. 765; Pepper v. Hart (1993) A.C.

593. As Blackstone said in his Commentaries on the Laws of England, 17th ed. (1830), vol. 1, p.163:

‘the whole of the law and custom of Parliament has its origin from this one maxim, ‘that whatever matter arises concerning either House of Parliament, ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.”

16 (1994) 3 W.L.R. 970

26 PART E

The Privy Council held that cross-examination based on the Hansard was

impermissible.

In the course of its decision in Prebble, the Privy Council adverted to an

Australian judgment of the New South Wales Supreme Court in Reg. v

Murphy (“Murphy”)17 which had allowed a witness to be cross examined on

the basis of evidence given to a Select Committee on the ground that Article 9

did not prohibit cross-examination to show that the statement of the witness

before the committee was false. In order to overcome the situation created by

the decision, the Australian legislature enacted the Parliamentary Privileges,

Act 1987. Section 16(3) introduced the following provisions:

“(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of: (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.”

In Prebble, the Privy Council held that Section 16(3) contains “what, in the

opinion of their lordships, is the true principle to be applied”. The Privy Council

held that the Australian view in Murphy was not correct, so far as the rest of the

Commonwealth is concerned, because it was in conflict with a long line of

17(1986) 64 A.L.R. 498

27 PART E

authority that courts will not allow any challenge to what is said or done in

Parliament.

The Defamation Act, 1996 (UK) contained a provision in Section 13 under which

an individual litigant in a defamation case could waive Parliamentary privilege.

The report of the Joint Committee observed that the provision “undermined the

basis of privilege: freedom of speech was the privilege of the House as a whole

and not of the individual Member in his or her own right, although an individual

Member could assert and rely on it.” The waiver provision was deleted on the

ground that the privilege belongs to the House and not to an individual member.

The impact of the provisions of Section 13 of the Defamation Act, 1996 was

dealt with in a 2011 decision of the House of Lords in Hamilton v AI Fayed

(“Hamilton”)18. The defendant had alleged that as a Member of Parliament, the

plaintiff had accepted cash from him for asking questions on his behalf in the

House of Commons. The plaintiff commenced an action for defamation against

the defendant, waiving his parliamentary privileges pursuant to Section 13 of

the Defamation Act, 1996. Lord Browne-Wilkinson dwelt on parliamentary

privileges, which prohibit the court from questioning whether a witness before

Parliament had misled it. The House of Lords held that any attempt to cross-

examine the defendant to the effect that he had lied to a Parliamentary

committee when he had stated that he had paid money for questions would

have infringed parliamentary privileges. However, under Section 13, the plaintiff

18 (2001) 1 A.C. 395

28 PART E

could waive his own protection from Parliamentary privilege. The consequence

was thus:

“The privileges of the House are just that. They all belong to the House and not to the individual. They exist to enable the House to perform its functions. Thus section 13(1) accurately refers, not to the privileges of the individual MP, but to “the protection of any enactment or rule of law” which prevents the questioning of procedures in Parliament. The individual MP enjoys the protection of parliamentary privileges. If he waives such protection, then under section 13(2) any questioning of parliamentary proceedings (even by challenging “findings…made about his conduct”) is not to be treated as a breach of the privileges of Parliament.”

The effect of Section 13 was that if a Member of Parliament waived the

protection, an assail of proceedings before Parliament would not be regarded

as a breach of privilege.

30 The decision in Hamilton is significant for explaining precisely the

relationship between parliamentary privilege and proceedings in a Court which

seek to challenge the truth or propriety of anything done in parliamentary

proceedings. As the Court holds:

“The normal impact of parliamentary privilege is to prevent the court from entertaining any evidence, cross-examination or submissions which challenge the veracity or propriety of anything done in the course of parliamentary proceedings. Thus, it is not permissible to challenge by cross-examination in a later action the veracity of evidence given to a parliamentary committee.”

But for the provisions of Section 13, evidence by Hamilton that he had not

received money for questions would come into conflict with the evidence

tendered by AI Fayed which was accepted by the Parliamentary Committees.

29 PART E

Hence it would have been impermissible to cross-examine Al Fayed to the effect

that he had falsely stated before the Parliamentary Committees that he had paid

money for questions. Such a consequence was obviated by the waiver

provisions of Section 13.

31 In Toussaint v Attorney General of Saint Vincent and the Grenadines

(“Toussaint”)19, the Privy Council dealt with a case where a claim was brought

against the government by an individual claiming that the acquisition of his land

was unlawful. In support, he referred to a speech of the Prime Minister in

Parliament and a transcript taken from the video-tape of a televised debate. The

submission was that the true reason for the acquisition of the land, as evident

from the speech of the Prime Minister, was political. Adverting to Prebble, Lord

Mance, speaking for the Privy Council, noted that there were three principles

involved: the need to ensure the free exercise of powers by the legislature on

behalf of the electors; the need to protect the interest of justice; and the interest

of justice in ensuring that all relevant evidence is available to the courts. The

Privy Council held that it was permissible to rely upon the speech of the Prime

Minister though the attempt was to demonstrate an improper exercise of power

for extraneous purposes. As Lord Mance observed:

“In such cases, the minister’s statement is relied upon to explain the conduct occurring outside Parliament, and the policy and motivation leading to it. This is unobjectionable although the aim and effect is to show that such conduct involved the improper exercise of a power “for an alien purpose or in a wholly unreasonable manner”: Pepper v Hart, per Lord

19 (2007) 1 W.L.R. 2825

30 PART E

Browne-Wilkinson at p 639 A. The Joint Committee expressed the view that Parliament should welcome this development, on the basis that “Both parliamentary scrutiny and judicial review have important roles, separate and distinct, in a modern democratic society” (para 50) and on the basis that “The contrary view would have bizarre consequences”, hampering challenges to the “legality of executive decisions… by ring-

fencing what ministers said in Parliament, and making “ministerial decisions announced in Parliament…less readily open to examination than other ministerial decisions”: para 51. The Joint Committee observed, pertinently, that

“That would be an ironic consequence of article 9. Intended to protect the integrity of the legislature from the executive and the courts, article 9 would become a source of protection of the executive from the courts.””

The Prime Minister’s statement in the House was “relied on for what it says,

rather than questioned or challenged”. This was permissible.

32 Toussaint is an important stage in the development of the law. A

statement made in Parliament by a Minister could be relied upon, not just to

explain the history of a law. Where there is a challenge to the exercise of

governmental authority on the ground that it is actuated by extraneous reasons,

a statement by a Minister in Parliament could be used in court in regard to

conduct outside Parliament. The challenge is not to a statement made in

Parliament but to governmental action outside. The statement would be relevant

to question an abuse of power by government.

31 PART E

33 In Regina (Bradley and Others) v Secretary of State for Work and

Pensions (Attorney General intervening)20, the Court of Appeal visited the

statement in Prebble that Section 16(3) of the Parliamentary Privileges Act,

1987 in Australia declared the true effect of Article 9 of the Bill of Rights and

that Section 16(3) contained “the true principle to be applied” in the case.

Holding that the dictum in Prebble appears to be too wide, it was held:

“…But paragraph (c), if read literally, is extremely wide. It would seem to rule out reliance on or a challenge to a ministerial statement itself on judicial review of the decision embodied in that statement (which was permitted in R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, and to which no objection has been raised in the present case), or to resolve an ambiguity in legislation (Pepper v Hart [1993] AC

593), or to assist in establishing the policy objectives of an enactment (Wilson v First County Trust Ltd (No 2) [2004] 1 AC

816). It would also prohibit reliance on report of the Joint Committee on Human Rights, which, as Mr Lewis’s submissions rightly state, have been cited in a number of appellate cases in this jurisdiction: a very recent example is R v F [2007] QB 960 para 11. As Lord Nicholls of Birkenhead observed in Wilson’s case [2004] 1 AC 816, para 60:

“there are occasions when courts may properly have regard to ministerial and other statements made in Parliament without in any way ‘questioning’ what has been said in Parliament, without giving rise to difficulties inherent in treating such statements as indicative of the will of Parliament, and without in any other way encroaching upon parliamentary privilege by interfering in matters properly for consideration and regulation by Parliament alone.”

I therefore do not treat the text of paragraph(c) of the Australian statute as being a rule of English law.”

The report of a Select Committee, it was observed, is a written document

published after a draft report has been placed before and approved by the

20(2007) EWHC 242 (Admin)

32 PART E

Committee. Hence, it was unlikely that the use of such a report in the

submissions of a party in civil litigation would have inhibited the Committee from

expressing its view. The freedom of speech in Parliament principle would not

be affected, since there would be no inhibition of that freedom.

34 The decision of the Administrative Court in the UK in Office of

Government Commerce v Information Commissioner (Attorney General

intervening)21 involved a case where a department of government had carried

out reviews into an identity card programme. The case involved a claim for the

disclosure of information. The Court observed that the law of parliamentary

privilege is based on two principles: the need for free speech in Parliament and

separation of powers between the legislature and the judiciary:

“...the law of parliamentary privilege is essentially based on two principles. The first is the need to avoid any risk of interference with free speech in Parliament. The second is the principle of the separation of powers, which in our constitution is restricted to the judicial function of government and requires the executive and the legislature to abstain from interference with the judicial function, and conversely requires the judiciary not to interfere with or to criticise the proceedings of the legislature. These basic principles lead to the requirement of mutual respect by the courts for the proceedings and decisions of the legislature and by the legislature (and the executive) for the proceedings and decisions of the courts.

Conflicts between Parliament and the courts are to be avoided. The above principles lead to the conclusion that the courts cannot consider allegations of impropriety or inadequacy or lack of accuracy in the proceedings of Parliament. Such allegations are for Parliament to address, if it thinks fit, and if an allegation is well founded any sanction is for Parliament to determine. The proceedings of Parliament include

21(2009) 3 W.L.R. 627

33 PART E

parliamentary questions and answers. These are not matters for the courts to consider.”

Yet, the Court also noticed the limitation of the above principles, when

proceedings in Parliament are relied upon simply as relevant historical facts or

to determine whether the legislation is incompatible with the European

Convention for the Protection of Human Rights which was embodied in the

Human Rights Act 1998 (“HRA”) in the UK. In that context the Court observed:

“However, it is also important to recognise the limitations of these principles. There is no reason why the courts should not receive evidence of the proceedings of Parliament when they are simply relevant historical facts or events; no “questioning” arises in such a case… Similarly, it is of the essence of the judicial function that the courts should determine issues of law arising from legislation and delegated legislation. Thus, there can be no suggestion of a breach of parliamentary privilege if the courts decide that legislation is incompatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms: by enacting the Human Rights Act 1998…”

The Court held that the conclusions of the report of a Committee that had led to

legislation could well be relied upon since the purpose of the reference is either

historical or made with a view to ascertaining the mischief at which the

legislation was aimed. If the evidence given to a Committee is uncontentious –

the parties being in agreement that it is true and accurate - there could be no

objection to it being taken into account. What the Tribunal could not do was to

refer to contentious evidence given to a Parliamentary Committee or the finding

of the Committee on an issue which the Tribunal had to determine.

34 PART E

35 The decision indicates a calibrated approach to Parliamentary privilege

consistent with the enactment of the HRA. The doctrine of incompatibility

envisages a role for courts in the UK to assess the consistency of the provisions

of law with reference to the standards of the European Convention.

Parliamentary supremacy does not allow the court to strike down legislation.

Yet the emergence of standards under the HRA has allowed for a distinct

adjudicatory role: to determine the compatibility of domestic law with reference

to European Convention standards, adopted by the HRA. To hold that this has

not altered the role of courts vis-à-vis Parliamentary legislation would be to miss

a significant constitutional development.

Wheeler v The Office of the Prime Minister22 was a case where there was a

challenge to a decision brought by the government to give notice of the intention

of the UK to participate in the Council Framework Decision on the European

arrest warrants. It was claimed that the government was precluded from issuing

a notification of its intention without holding a referendum. Holding that the plea

would breach Parliamentary privilege the Court held:

“…In substance, however, the claim is that, unless the House of Commons organises its business in a particular way, and arranges for a vote in a particular form, the courts must intervene and either grant a declaration or issue an order prohibiting the government from taking certain steps unless and until there is such a vote. In my judgment, that would involve the courts impermissibly straying from the legal into the political realm.”

22(2014) EWHC 3815 (Admin)

35 PART E

The plea, the Court ruled, would amount to the Court questioning things done

in Parliament and instead of facilitating the role of Parliament, the Court would

be usurping it.

In Wilson v First County Trust Ltd23 the House of Lords observed that the

Human Rights Act 1998 had obligated the Court to exercise a new role in

respect of primary legislation. Courts were required to evaluate the effect of

domestic legislation upon rights conferred by the European Convention and

where necessary; to make a declaration of incompatibility. While doing so, the

Court would primarily construe the legislation in question. Yet, the practical

effect of a statutory provision may require the court to look outside the statute.

The court would be justified in looking at additional background information to

understand the practical impact of a statutory measure on a Convention right

and decide upon the proportionality of a statutory provision. In that context, the

Court held:

“This additional background material may be found in published documents, such as a government white paper. If relevant information is provided by a minister or, indeed, any other member of either House in the course of a debate on a Bill, the courts must also be able to take this into account. The courts, similarly, must be able to have regard to information contained in explanatory notes prepared by the relevant government department and published with a Bill. The courts would be failing in the due discharge of the new role assigned to them by Parliament if they were to exclude from consideration relevant background information whose only source was a ministerial statement in Parliament or an explanatory note prepared by his department while the Bill was proceeding through Parliament. By having regard to such material, the court would not be “questioning” proceedings in

23(2004) 1 AC 816

36 PART E

Parliament or intruding improperly into the legislative process or ascribing to Parliament the views expressed by a minister. The court would merely be placing itself in a better position to understand the legislation.

To that limited extent there may be occasion for the courts, when conducting the statutory “compatibility” exercise, to have regard to matters stated in Parliament. It is a consequence flowing from the Human Rights Act. The constitutionally unexceptionable nature of this consequence receives some confirmation from the view expressed in the unanimous report of the parliamentary Joint Committee on Parliamentary Privilege (1999) (HL Paper 43-I, HC 214-I), p 28, para 86, that it is difficult to see how there could be any objection to the court taking account of something said in Parliament when there is no suggestion the statement was inspired by improper motives or was untrue or misleading and there is no question of legal liability.”

Recourse to such background information would enable the court to better

understand the law and would not amount to a breach of parliamentary

privilege.

36 The decision of the Privy Council in Owen Robert Jennings v Roger

Edward Wyndham Buchanan24 arose from the Court of Appeal in New

Zealand. The judgment recognises that while the protection conferred by Article

9 of the Bill of Rights should not be whittled away, yet as the Joint Committee

on Parliamentary privileges (Chaired by Lord Nicholls of Birkenhead) observed,

freedom to discuss parliamentary proceedings is necessary in a democracy:

“Freedom for the public and the media to discuss parliamentary proceedings outside Parliament is as essential to a healthy democracy as the freedom of members to discuss what they choose within Parliament.”

24(2004) UKPC 36

37 PART E

Media reporting of Parliamentary proceedings, the Court held, has been an

important instrument of public debate. Hence the freedom of the Members of

Parliament to discuss freely within its portals must be weighed with the freedom

of the public to discuss and debate matters of concern to them:

“As it is, parliamentary proceedings are televised and recorded. They are transcribed in Hansard. They are reported in the press, sometimes less fully than parliamentarians would wish. They form a staple of current affairs and news programmes on the radio and television. They inform and stimulate public debate. All this is highly desirable, since the legislature is representative of the whole nation. Thus, as the Joint Committee observed in its executive summary (page 1):

“This legal immunity is comprehensive and absolute. Article 9 should therefore be confined to activities justifying such a high degree of protection, and its boundaries should be clear.””

These observations reflect a concern to define the boundaries of the immunities

under Article 9 in clear terms. While recognizing the absolute nature of the

immunity, its boundaries must “be confined to activities justifying such a high

degree of protection”. The right of Members of Parliament to speak their minds

in Parliament without incurring a liability is absolute. However, that right is not

infringed if a member, having spoken and in so doing defamed another person,

thereafter chooses to repeat his statement outside Parliament. In such

circumstances, the privilege may be qualified. While it is necessary that the

legislature and the courts do not intrude into the spheres reserved to the other,

a reference to Parliamentary records to prove that certain words were in fact

uttered is not prohibited.

“In a case such as the present, however, reference is made to the parliamentary record only to prove the historical fact that

38 PART E

certain words were uttered. The claim is founded on the later extra-parliamentary statement. The propriety of the member’s behaviour as a parliamentarian will not be in issue. Nor will his state of mind, motive or intention when saying what he did in Parliament.”

37 The evolution of the law in the UK indicates the manner in which the

protection under Article 9 of the Bill of Rights has been transformed. There are

essentially three principles which underlie the debate. The first is the importance

of the freedom of speech in Parliament. The absolute protection which is

afforded to what is done or spoken by a Member of Parliament in Parliament is

an emanation of the need to protect freedom of speech in Parliament. The

second principle which is at work is the separation of powers between

Parliament and the courts. This principle recognizes that liability for a falsehood

spoken in Parliament lies within the exclusive control of Parliament. A Member

of Parliament cannot be held to account in a court of law for anything which is

said or spoken in Parliament. A speech in Parliament would not attract either a

civil or criminal liability enforceable in a court of law. The third principle

emphasises that debates in Parliament have a public element. Public debate is

the essence of and a barometer to the health of democracy. Though the

privilege which attaches to a speech in Parliament is absolute, the immunity

extends to those activities within Parliament, which justify a high degree of

protection. As Parliamentary proceedings have come to be widely reported,

published and televised, the common law has come to recognize that a mere

reference to or production of a record of what has been stated in Parliament

does not infringe Article 9 of the Bill of Rights. In other words, a reference to

39 PART E

Parliamentary record to prove a historical fact that certain words were spoken

is not prohibited. What is impermissible is to question the truthfulness or veracity

of what was stated before Parliament in any forum including a court, outside

Parliament. Nor can a Member of Parliament be cross-examined in a

proceeding before the court with reference to what was stated in Parliament.

The validity of an Act of Parliament or of the proceedings of a Parliamentary

Committee cannot be questioned in a court in the UK. The enactment of the

Human Rights Act has led to a recognition that in testing whether a statutory

provision is incompatible with a Convention right, it may become necessary for

the court to adjudge the practical effects of a law. To do so, the court may

legitimately have reference to background material which elucidates the

rationale for the law, the social purpose which it has sought to achieve and the

proportionality of its imposition. In order to understand the facets of the law

which bear upon rights protected under the European Convention, the court

may justifiably seek recourse to statements of ministers, policy documents and

white papers to find meaning in the words of the statute. The law in the UK has

hence developed to recognize that free speech in Parliament and separation of

powers must be placed in a scale of interpretation that is cognizant of the need

to protect the democratic rights of citizens.

E.2 India

38 The law in India has witnessed a marked degree of evolution. Indian

jurisprudence on the subject has recognized the importance of the freedom of

40 PART E

speech in Parliament, the principle of separation of powers and the concomitant

protection afforded to members from being held liable for what is spoken in

Parliament. Principles grounded in the common law in the UK have not

remained just in the realm of common law. The Constitution, in recognizing

many of those principles imparts sanctity to them in a manner which only the

text of a fundamental written charter for governance can provide. Separation

of powers is part of the basic structure. Our precedent on the subject notices

the qualitative difference between Parliamentary democracy in the UK and in

India. The fundamental difference arises from the supremacy of the Indian

Constitution which subjects all constitutional authorities to the mandate of a

written Constitution.

39 The locus classicus on the subject of parliamentary privileges is the

seven-judge Bench decision in Re: Powers, Privileges and Immunities of

State Legislatures25. It was argued before this Court that the privilege of the

House to construe Article 194(3) and to determine the width of the privileges,

powers and immunities enables the House to determine questions relating to

the existence and extent of its powers and privileges, unfettered by the views

of the Supreme Court. Chief Justice Gajendragadkar, held that it was necessary

to determine whether even in the matter of privileges, the Constitution confers

on the House a sole and exclusive jurisdiction. The decision recognizes that

while in the UK, Parliament is sovereign, the Indian Constitution creates a

25Special Reference No. 1 of 1964: (1965) 1 SCR 413

41 PART E

federal structure and the supremacy of the Constitution is fundamental to

preserving the delicate balance of power between constituent units:

“38. …it is necessary to bear in mind one fundamental feature of a federal constitution. In England, Parliament is sovereign; and in the words of Dicey, the three distinguishing features of the principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law whatever; that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament, and that the right or power of Parliament extends to every part of the Queen’s dominions. On the other hand, the essential characteristic of federalism is “the distribution of limited executive, legislative and judicial authority among bodies which are co-ordinate with and independent of each other”. The supremacy of the Constitution is fundamental to the existence of a federal State in order to prevent either the legislatures of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfied the particular requirements of States which are desirous of union, but not prepared to merge their individuality in a unity. This supremacy of the constitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers. Nor is any change possible in the constitution by the ordinary process of federal or State legislation. Thus the dominant characteristic of the British Constitution cannot be claimed by a federal constitution like ours”.

While the legislatures in our country have plenary powers, they function within

the limits of a written Constitution. As a result, the sovereignty which Parliament

can claim in the UK cannot be claimed by any legislature in India “in the literal

absolute sense”.

40 The immunity conferred on Members of Parliament from liability to “any

proceedings in any court in respect of anything said or any vote given by him in

Parliament” (Article 105(2)) was deliberated upon in a judgment of the

42 PART E

Constitution Bench in P V Narasimha Rao v State (CBI/SPE)26. Justice G N

Ray agreed with the view of Justice S P Bharucha on the scope of the immunity

under clauses (2) and (3) of Article 105. The judgment of Justice Bharucha (for

himself and Justice S Rajendra Babu) thus represents the view of the majority.

The minority view was of Justices S C Agrawal and Dr A S Anand. In construing

the scope of the immunity conferred by Article 105(2), Justice Bharucha

adverted to judgments delivered by courts in the United Kingdom (including

those of the Privy Council noted earlier27). Interpreting Article 105(2), Justice

Bharucha observed thus:

“133. Broadly interpreted, as we think it should be, Article 105(2) protects a Member of Parliament against proceedings in court that relate to, or concern, or have a connection or nexus with anything said, or a vote given, by him in Parliament.”

In that case, the charge in a criminal prosecution for offences under Section

120B of the Penal Code and the Prevention of Corruption Act, 1988 was that

there was a criminal conspiracy between alleged bribe givers and bribe takers

(who were members of the legislature) to defeat a motion of no confidence by

obtaining illegal gratification in pursuance of which bribes were given and

accepted. The charge did not refer to the votes that the alleged bribe takers had

actually cast upon the no confidence motion. Nevertheless, the majority held

that the expression “in respect of” in Article 105(2) must perceive a ‘broad

meaning’. The alleged conspiracy and agreement had nexus in respect of those

26 (1998) 4 SCC 626 27 Bradlaugh v Gosset: (1884) 12 QBD 271: 53 LJQB 290; Prebble v Television New Zealand Ltd: (1994) 3 AII ER 407, PC; R v Currie: (1992)

43 PART E

votes, and the proposed inquiry in the criminal proceedings was in regard to its

motivation. The submission of the Attorney General for India that the protection

under Article 105(2) is limited to court proceedings and to a speech that is given

or a vote that is cast was not accepted by the Constitution Bench for the

following reasons:

“136. It is difficult to agree with the learned Attorney General that though the words “in respect of” must receive a broad meaning, the protection under Article 105(2) is limited to court proceedings that impugn the speech that is given or the vote that is cast or arises thereout or that the object of the protection would be fully satisfied thereby. The object of the protection is to enable Members to speak their mind in Parliament and vote in the same way, freed of the fear of being made answerable on that account in a court of law. It is not enough that Members should be protected against civil action and criminal proceedings, the cause of action of which is their speech or their vote. To enable Members to participate fearlessly in parliamentary debates, Members need the wider protection of immunity against all civil and criminal proceedings that bear a nexus to their speech or vote. It is for that reason that a Member is not “liable to any proceedings in any court in respect of anything said or any vote given by him”. Article 105(2) does not say, which it would have if the learned Attorney General were right, that a Member is not liable for what he has said or how he has voted. While imputing no such motive to the present prosecution, it is not difficult to envisage a Member who has made a speech or cast a vote that is not to the liking of the powers that be being troubled by a prosecution alleging that he had been party to an agreement and conspiracy to achieve a certain result in Parliament and had been paid a bribe.”28

The view of the minority was that the offence of bribery is made out against a

bribe taker either upon taking or agreeing to take money for a promise to act in

a certain manner. Following this logic, Justice SC Agrawal held that the criminal

28Id, at pages 729-730

44 PART E

liability of a Member of Parliament who accepts a bribe for speaking or giving a

vote in Parliament arises independent of the making of the speech or the giving

of the vote and hence is not a liability “in respect of anything said or any vote

given” in Parliament. The correctness of the view in the judgment of the majority

does not fall for consideration in the present case. Should it become necessary

in an appropriate case in future, a larger bench may have to consider the issue.

41 The judgment of the Constitution Bench in Raja Ram Pal v Hon’ble

Speaker, Lok Sabha29, has a significant bearing on the issues which arise in

the present reference. Chief Justice YK Sabharwal, delivering the leading

opinion on behalf of three judges dealt with the ambit of Article 105 in relation

to the expulsion of a member and the extent to which such a decision of the

Houses of Parliament is amenable to judicial review. The judgment notices that

“parliamentary democracy in India is qualitatively distinct” from the UK. In

defining the nature and extent of judicial review in such cases, Chief Justice

Sabharwal observed that it is the jurisdiction of the court to examine whether a

particular privilege claimed by the legislature is actually available to it:

“62. In view of the above clear enunciation of law by Constitution Benches of this Court in case after case, there ought not be any doubt left that whenever Parliament, or for that matter any State Legislature, claims any power or privilege in terms of the provisions contained in Article 105(3), or Article 194(3), as the case may be, it is the Court which has the authority and the jurisdiction to examine, on grievance being brought before it, to find out if the particular power or privilege that has been claimed or asserted by the legislature is one that was contemplated by the said constitutional provisions or, to

29 (2007) 3 SCC 184

45 PART E

put it simply, if it was such a power or privilege as can be said to have been vested in the House of Commons of the Parliament of the United Kingdom as on the date of commencement of the Constitution of India so as to become available to the Indian Legislatures.”30

While Parliament has the power to expel a member for a contempt committed,

the doctrine of “exclusive cognizance” adopted in the UK has no application in

India which is governed by a written Constitution. Though Parliament is

possessed of a plentitude of powers, it is subject to terms of legislative

competence and to the restrictions imposed by fundamental rights. Article 21 is

attracted when the liberty of a Member of Parliament is threatened by

imprisonment in execution of a parliamentary privilege. Fundamental rights can

be invoked both by a member and by a non-member when faced by the exercise

of parliamentary privilege. Drawing the distinction between the UK and India,

Chief Justice Sabharwal observed:

“363. That the English cases laying down the principle of exclusive cognizance of Parliament, including Bradlaugh [(1884) 12 QBD 271: 53 LJQB 290: 50 LT 620], arise out of a jurisdiction controlled by the constitutional principle of sovereignty of Parliament cannot be lost sight of. In contrast, the system of governance in India is founded on the norm of supremacy of the Constitution which is fundamental to the existence of the Federal State.”31

Consequently, proceedings which are tainted as a result of a substantive

illegality or unconstitutionality (as opposed to a mere irregularity) would not be

protected from judicial review. The doctrine of exclusive cognizance was

evolved in England as incidental to a system of governance based on

30 Id, at page 259 31 Id, at page 348

46 PART E

parliamentary sovereignty. This has no application to India, where none of the

organs created by the Constitution is sovereign, and each is subject to the

checks and controls provided by the Constitution.

The decision in Raja Ram Pal holds that Article 122(1) embodies the twin test

of legality and constitutionality. This Court has categorically rejected the position

that the exercise of powers by the legislature is not amenable to judicial review:

“389. …there is no scope for a general rule that the exercise of powers by the legislature is not amenable to judicial review. This is neither the letter nor the spirit of our Constitution. We find no reason not to accept that the scope for judicial review in matters concerning parliamentary proceedings is limited and restricted. In fact, this has been done by express prescription in the constitutional provisions, including the one contained in Article 122(1). But our scrutiny cannot stop, as earlier held, merely on the privilege being found, especially when breach of other constitutional provisions has been alleged.”32

The Court will not exercise its power of judicial review where there is merely an

irregularity of procedure, in view of the provisions of Article 122(1). But judicial

review is not “inhibited in any manner” where there is a gross illegality or a

violation of constitutional provisions. While summarizing the conclusions of the

judgment, Chief Justice Sabharwal emphasized the need for constitutional

comity, since Parliament being a coordinate constitutional institution. The

expediency and necessity for the exercise of the power of privilege are for the

legislature to determine. Yet, judicial review is not excluded for the purpose of

determining whether the legislature has trespassed on the fundamental rights

32 Id, at page 360

47 PART E

of its citizens. Among the conclusions in the judgment, of relevance to the

present case, are the following:

“431. …(k) There is no basis to the claim of bar of exclusive cognizance or absolute immunity to the parliamentary proceedings in Article 105(3) of the Constitution;

(l) The manner of enforcement of privilege by the legislature can result in judicial scrutiny, though subject to the restrictions contained in the other constitutional provisions, for example Article 122 or 212; and

(m) Article 122(1) and Article 212(1) displace the broad doctrine of exclusive cognizance of the legislature in England of exclusive cognizance of internal proceedings of the House rendering irrelevant the case-law that emanated from courts in that jurisdiction; inasmuch as the same has no application to the system of governance provided by the Constitution of India;.”33

42 The decision in Raja Ram Pal has been adverted to in the subsequent

judgment of the Constitution Bench in Amarinder Singh v Special Committee,

Punjab Vidhan Sabha34. Chief Justice Balakrishnan, speaking for the

Constitution Bench, held that all the privileges which have been claimed by the

House of Commons cannot be claimed automatically by legislative bodies in

India. Legislatures in India do not have the power of self-composition which is

available to the House of Commons. Indian legislatures are governed by a

written Constitution.

43 The limits of comparative law must weigh in the analysis in this area of

constitutional law, when the Court is confronted by a copious attempt, during

the course of submissions, to find meaning in the nature and extent of

33 Id, at page 372 34 (2010) 6 SCC 113

48 PART F

parliamentary privilege in India from decided cases in the UK. The fundamental

difference between the two systems lies in the fact that parliamentary

sovereignty in the Westminster form of government in the UK has given way, in

the Indian Constitution, to constitutional supremacy. Constitutional supremacy

mandates that every institution of governance is subject to the norms embodied

in the constitutional text. The Constitution does not allow for the existence of

absolute power in the institutions which it creates. Judicial review as a part of

the basic features of the Constitution is intended to ensure that every institution

acts within its bounds and limits. The fundamental rights guaranteed to citizens

are an assurance of liberty and a recognition of the autonomy which inheres in

every person. Hence, judicial scrutiny of the exercise of parliamentary privileges

is not excluded where a fundamental right is violated or a gross illegality occurs.

In recognizing the position of Parliament as a coordinate institution created by

the Constitution, judicial review acknowledges that Parliament can decide the

expediency of asserting its privileges in a given case. The Court will not

supplant such an assertion or intercede merely on the basis of an irregularity of

procedure. But where a violation of a constitutional prescription is shown,

judicial review cannot be ousted.

F Separation of powers: a nuanced modern doctrine

44 The submission of the Attorney General is that the carefully structured

dividing lines between the judicial, executive and legislative wings of the state

49 PART F

would be obliterated if the court were to scrutinize or judicially review reports of

parliamentary committees. The principle of separation, it has been submitted,

interdicts the courts from scrutinizing or reviewing reports of parliamentary

committees. Judicial review may well result in a conflict between the two

institutions of the State and is hence – according to the submission – best

eschewed.

45 Separation of powers between the legislature, the executive and the

judiciary covers a large swathe of constitutional history spanning the writings of

Montesquieu and Blackstone, to the work of Dicey and Jennings.

Gerangelos (2009) laments that in the UK, parliamentary sovereignty has

prevented the principle of separation from emerging as a judicially enforceable

standard35:

“Britain’s unwritten constitution and the influence of Diceyan orthodoxy, emphasising parliamentary sovereignty and a fusion of powers which did not countenance judicial invalidation of legislative action, has meant that the separation of powers has not become a source of judicially-enforceable constitutional limitations. The precise status of the doctrine has varied from time to time and the extent to which the doctrine nevertheless provides some restraint on legislative interference with judicial process cannot be determined with precision. It can be said, however, that constitutional entrenchment of the separation doctrine has not been part of the Westminster constitution tradition; a tradition which has not, in any event, placed much store by written constitutions with their accompanying legalism and rigidities. The prevailing influence from that quarter has been the maintenance of judicial independence in terms of institutional independence through the protection of tenure and remuneration, and afforded statutory protection in the Act of

35 Peter A Gerangelos, THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIAL PROCESS, CONSTITUTIONAL PRINCIPLES AND LIMITATIONS (Hart Publishing, 2009).

50 PART F

Settlement in 1701, as opposed to the protection of judicial power in a functional sense.”

The impact of the doctrine is seen best in terms of the institutional

independence of the judiciary from other organs of the state. The doctrine is

stated to have been overshadowed in the UK “by the more dominant

constitutional principles of parliamentary sovereignty and the rule of law”. For

instance, in the UK, Ministers of Crown are both part of the executive and

members of the Parliament. Until the Constitutional Reform Act, 2005 the Lord

Chancellor was a member of the Cabinet and was eligible to sit as a judge in

the Appellate Committee of the House of Lords. The Judicial Committee of the

House of Lords was the highest court, even though the House constituted the

Upper House of the legislature. In the enforcement of parliamentary privileges,

the House exercises judicial functions. Delegated legislation enables the

executive to exercise legislative functions.

46 Many contemporary scholars have differed on the normative importance

of the doctrine of separation. One view is that while a distinct legislature,

executive and judiciary can be identified as a matter of practice, this is not a

mandate of the unwritten Constitution. The statement that there is a separation

is construed to be descriptive and not normative36. On the other hand, other

scholars regard the doctrine as “a fundamental underlying constitutional

principle which informs the whole British constitutional structure”37. Yet, even

36 See A Tomkins, PUBLIC LAW (Oxford University Press, 2003) 37 (as cited by Gerangelos at page 274). 37 E Barendt, ‘Separating of Powers and Constitutional Government’ [1995] Public Law 599 at 599-60,

51 PART F

scholars who emphasise the importance of the separation of powers in the UK

acknowledge that the Constitution does not strictly observe such a separation.

Courts in the UK do not possess a direct power of judicial review to invalidate

legislation though, with the enactment of the Human Rights Act, the doctrine of

incompatibility has become an entrenched feature of the law. Gerangelos

(supra) states that “the most that can be said is that the separation of powers

does play an influential role as a constitutional principle, but as a non-binding

one”.38 He cites Professor Robert Stevens39:

“In modern Britain the concept of the separation of powers is cloudy and the notion of the independence of the judiciary remains primarily a term of constitutional rhetoric. Certainly its penumbra, and perhaps even its core, are vague. No general theory exists, although practically the English have developed surprisingly effective informal systems for the separation of powers; although it should never be forgotten that the system of responsible government is based on a co-mingling of the executive with the legislature. The political culture of the United Kingdom, however, provides protections for the independence of the judiciary, which are missing in law.”

The importance of the principle of separation essentially lies in the

independence of the judiciary. The protections in the Act of Settlement 1701

have now been reinforced in the Constitutional Reform Act, 2005. Though the

supremacy of Parliament is one of the fundamental features in the UK and the

unwritten Constitution does not mandate a strict separation of powers, it would

be difficult to regard a state which has no control on legislative supremacy as a

C Munro, Studies in Constitutional Law, 2nd edn (London, Butterworths, 1999) at 304, TRS Allan, Law Liberty and Justice, The Legal Foundations of British Constitutionalism (Oxford, Clarendon Press, 1993) chs 3 and 8, and TRS Allan, Constitutional Justice, A Liberal Theory of the Rule of Law (Oxford, Oxford University Press, 2001) 38 Peter A Gerangelos, THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIAL PROCESS, CONSTITUTIONAL PRINCIPLES AND LIMITATIONS (Hart Publishing, 2009) 39 R Stevens, ‘A Loss of Innocence?: Judicial Independence and the Separation of powers’ (1999) 19 OXFORD JOURNAL OF LEGAL STUDIES 365.

52 PART F

constitutional state founded on the rule of law40. Consequently, where the rule

of law and constitutionalism govern society there may yet be fundamental

principles inhering in the nature of the polity, which can be enforced by the

judiciary even against Parliament, in the absence of a written Constitution 41. In

other words, even in the context of an unwritten Constitution, the law has a

certain internal morality as a part of which it embodies fundamental notions of

justice and fairness.

47 The interpretation of the doctrine of separation of powers has evolved

from being a “one branch – one function approach”42 with limited exceptions, to

a concept which involves an integration of the ‘division of work’ and ‘checks and

balances’43. The primary aim of the doctrine today is to ensure the

accountability of each wing of the State, while ensuring concerted action in

respect of the functions of each organ for good governance in a democracy.

The doctrine of separation of power has developed to fulfill the changing needs

of society and its growing necessities. Many of these considerations are

significantly different from those which were prevalent when Montesquieu

originally formulated the doctrine.

48 In 1967, MJC Vile in his book titled ‘Constitutionalism and the

40 Allan, Law Liberty and Justice (supra note 36) 41 Gerangelos, at page 277.

42 Aileen Kavanagh, The Constitutional Separation of Powers, Chapter 11 in David Dyzenhaus and Malcolm Thorburn (eds.) PHILOSOPHICAL FOUNDATIONS OF CONSTITUTIONAL LAW , (Oxford University Press, 2016) 221 (hereinafter, “Philosophical Foundations of Constitutional Law”). 43 See MJC Vile, CONSTITUTIONALISM AND THE SEPARATION OF POWERS (Oxford University Press, 1967).

53 PART F

Separation of Powers’44 defined the ‘pure doctrine’ of separation of powers

thus:

“[a] ‘pure doctrine’ of the separation of powers might be formulated in the following way: It is essential for the establishment and maintenance of political liberty that the government be divided into three branches or departments, the legislature, the executive, and the judiciary. To each of these three branches, there is a corresponding identifiable function of government, legislative, executive, or judicial. Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch. In this way, each of the branches will be a check to the others and no single group of people will be able to control the machinery of the State.”45

This definition becomes important to facilitate an understanding of the

reconstructed and modern view on separation of powers vis-à-vis its traditional

understanding. Vile essentially proposes that ‘division of labor’ and ‘checks and

balances’ are intrinsic to the theory of separation of powers. In his view, a

scheme of checks and balances would involve a degree of mutual supervision

among the branches of government, and may therefore result in a certain

amount of interference by one branch into the functions and tasks of the other. 46

Aileen Kavanagh, has presented a scholarly analysis of separation of powers

in a chapter titled ‘The Constitutional Separation of Powers’.47 She concurs

with the view expressed by MJC Vile that separation of powers includes two

44 Id.

45 Id, at page 13 46 See, MJC Vile, CONSTITUTIONALISM AND THE SEPARATION OF POWERS (Oxford University Press, 1967). 47Aileen Kavanagh, The Constitutional Separation of Powers, Chapter 11 in David Dyzenhaus and Malcolm

Thorburn (eds.) PHILOSOPHICAL FOUNDATIONS OF CONSTITUTIONAL LAW, (Oxford University Press, 2016) 221.

54 PART F

components, that of ‘division of labour’ and ‘checks and balances’. These two

components are strengthened by the deep-rooted ethos of coordinated

institutional effort and joint activity between branches of the government in the

interest of good governance.48 Instead of an isolated compartmentalization of

branches of government, she highlights the necessary independence,

interdependence, interaction and interconnection between these branches in a

complex interactive setting.49 Kavanagh acknowledges that in view of the

stronghold of the pure doctrine over our understanding of separation of powers,

the idea of a collective enterprise between the branches of the government for

the purpose of governing may seem jarring. However, she argues that this idea

of “branches being both independent and interdependent-distinct but

interconnected-also has some pedigree in canonical literature.”50 Kavanagh

thus opines that the tasks of law-making, law-applying and law-executing are

collaborative in nature, necessitating co-operation between the branches of the

government in furtherance of the common objective of good governance.

Kavanagh explains this as follows:

“In some contexts, the interaction between the branches will be supervisory, where the goal is to check, review and hold the other to account. At other times, the interaction will be a form of cooperative engagement where the branches have to support each other’s role in the joint endeavor.”51

48 See, D Kyritsis, ‘What is Good about Legal Conventionalism?’ (2008) 14 LEGAL THEORY 135, 154 (as cited in Philosophical Foundations of Constitutional Law, at page 235). 49 Id.

50 Philosophical Foundations of Constitutional Law, at page 236. 51 K Malleson, ‘The Rehabilitation of Separation of Powers in UK’ in L. de Groot-van Leeuwen and W Rombouts,

SEPARATION OF POWERS IN THEORY AND PRACTICE: AN INTERNATIONAL PERSPECTIVE (Nijmegen: Wolf Publishing, 2010) 99-122, 115 (as cited in Philosophical Foundations of Constitutional Law, at page 237).

55 PART F

Jeremy Waldron has dealt with the relationships among officials or institutions

in a State. He proposes that separation of powers is not just a principle involving

the division of labour and the distribution of power but also includes inter-

institutional relationships between the three branches when carrying out their

distinct roles as part of a joint enterprise. This is in order to facilitate, what

Waldron called the ‘Principle of Institutional Settlement’.52 Further, inter-

institutional comity, which is the respect that one branch of the state owes to

another, is also a significant factor, which calls for collaboration among

branches of the government to ensure that general public values such as

welfare, autonomy, transparency, efficiency and fairness are protected and

secured for the benefit of citizens.53

Thus, in a comparative international context, authors have accepted separation

of powers to widely include two elements: ‘division of labour’ and ‘checks and

balances’. The recent literature on the subject matter encourages inter-

institutional assistance and aid towards the joint enterprise of good governance.

The current view on the doctrine of separation of powers also seeks to

incorporate mutual supervision, interdependence and coordination because the

ultimate aim of the different branches of the government, through their distinct

functions is to ensure good governance and to serve public interest, which is

essential in the background of growing social and economic interests in a

52 J Waldron, ‘Authority for Officials’ in L. Meyer, S. Paulson and T. Pogge (eds), RIGHTS, CULTURE, AND THE LAW:

THEMES FROM THE LEGAL AND POLITICAL PHILOSOPHY OF JOSEPH RAZ (Oxford University Press, 2003) 45-70.

53 See, J King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 OXFORD JOURNAL OF LEGAL STUDIES 409,

428; See also, Buckley v. Attorney General [1950] Irish Reports 67, 80 (per O’Bryne J) (as cited in Philosophical Foundations of Constitutional Law, at page 235).

56 PART F

welfare state. This stands in contrast with the former and original interpretation

of the doctrine, which sought to compartmentalize and isolate the different

branches of the government from one another, with limited permissible

exceptions.

49 Eoin Carolan’s book titled ‘The New Separation of Powers’ (2009)

reflects an attempt to reshape the traditional doctrine of separation, to make it

relevant to the practical realities of modern government. He notes that while the

tripartite separation of powers between the legislature, executive and judiciary

had “conceptual simplicity with an impeccable academic pedigree” 54, the

doctrine has obvious limitations in the sense that it does not satisfactorily

explain the emergence and growth of the modern administrative State we see

today. The author contends that an institutional theory like the separation of

powers can no longer be accepted in its original form if it cannot account for

this ‘significant tranche of government activity’. Among the characteristics of the

modern administrative State is that public power is exercised in a decentralized

manner and on an ever-growing discretionary basis.55

The shared growth of administrative powers of the bureaucracy in the modern

state defies the tripartite division. Therefore, a realistic modern application of

the theory is necessary. The modern system of government has grown in ways

previously thought unfathomable, and now encompasses a breadth and

54 Eoin Carolan, THE NEW SEPARATION OF POWERS- A THEORY FOR THE MODERN STATE (Oxford University Press, 2009)

253. 55 Id.

57 PART F

diversity previously unseen. Government today is characterized by the increase

in powers of its agencies and the rapid growth of organizations which can

neither be classified as exclusively public or private bodies. These modern

systems of government and the existence and rapid rise of supranational

organizations defy the traditional three- way division of powers. Administrative

bodies are not defined by a uniform design, and exercise institutional fluidity in

a manner which has come to characterize the administrative state’s

organizational complexity: In a single instance, they exercise powers and

perform functions that might have been formerly classified as executive, judicial

or legislative in nature.56 In this view, the modern State is distinctly different from

Locke’s seventeenth century Model and Montesquieu’s eighteenth century

ideas:

“The state is now dirigiste, discretionary, and broadly dispersed.”57

50 Carolan thus proposes that to be suitable, a theory of institutional justice

must be rooted in the principle of non-arbitrariness. He believes that a more

suitable approach of classification of institutions would be not by functions, but

by constituencies, and the sole constituency in this legal framework is the

individual citizen. Carolan’s proposed model places emphasis on the exercise

of power on the basis of inter-institutional dialogue which ensures that a

communicative process has taken place58. Carolan describes his model thus:

56 Eoin Carolan, The Problems with the Theory of Separation of Powers’, SSRN, (2011) 26. 57 Supra note 53, 256 58 Supra note 53, 132

58 PART F

“The prescribed institutional structure operates by inter-organ mingling instead of separation. Individual decisions are delivered at the end of a multi institutional process, the central concern of which is to organize, structure, manage, and— crucially—ensure the input of all relevant institutional interests. On this model, the government and the courts are presented as providing an orienting framework within which administrative decision-making will occur. These first-order organs function at the level of macro-social organization, adopting general measures which are expected to advance their constituent social interest. The government specifies the actions it feels are required (or requested) to enhance the position of the collective. The courts, for their part, insist on the process precautions necessary to secure individual protection. Issues of informational efficacy and non-arbitrariness combine to ensure, however, that these provisions are not particularized.”65

While the autonomy of the administration is respected as a vital institutional

process, corrective measures are required where an institution has strayed

outside the range of permissible outcomes. He speaks of a collaborative

process of exercising power, with the judiciary acting as a restraining influence

on the arbitrary exercise of authority.

51 While the Indian Constitution has been held to have recognized the

doctrine of separation of powers, it does not adopt a rigid separation. In Ram

Jawaya Kapur v State of Punjab59, this Court held:

“12. …The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.”

59 (1955) 2 SCR 225

59 PART F

Reduced to its core, separation entails that one organ or institution of the state

cannot usurp the powers of another.

In Re: Powers, Privileges and Immunities of State Legislatures60, this Court

held that whether or not the Constitution brings about a “distinct and rigid

separation of powers”, judicial review is an inseparable part of the judicial

function. Whether legislative authority has extended beyond its constitutional

boundaries or the fundamental rights have been contravened cannot be

decided by the legislature, but is a matter entrusted exclusively to judicial

decision.

In Kesavananda Bharati v State of Kerala61, separation of powers was

regarded as a feature of the basic structure of the Indian Constitution. Chief

Justice Sikri held:

“292. The learned Attorney-General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same. The basic structure may be said to consist of the following features:

(1) Supremacy of the Constitution;

(2) Republican and Democratic form of Government; (3) Secular character of the Constitution; (4) Separation of powers between the legislature, the executive and the judiciary;

(5) Federal character of the Constitution.”62

60 (1965) 1 SCR 413 61 (1973) 4 SCC 225 62 Id, at page 366

60 PART F

Justices Shelat and Grover emphasized the doctrine of separation as a part of

the checks and balances envisaged by the Constitution:

“577. …There is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so pre-dominant as to disable the others from exercising and discharging powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powers in all its rigidity as is the case in the United States Constitution yet it envisages such a separation to a degree…”63

In Indira Nehru Gandhi v Raj Narain64, Justice YV Chandrachud held that

while the Constitution does not embody a rigid separation of governmental

powers, a judicial function cannot be usurped by the legislature:

“689. …the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our cooperative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances.”65

The 39th amendment of the Constitution did precisely that and was held to

violate the basic structure.

In I R Coelho v State of Tamil Nadu66, the Court underlined the functional

complementarity between equality, the rule of law, judicial review and

separation of powers:

“129. Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These

63 Id, at page 452.

64 (1975) Suppl SCC 1 65 Id, at page 261.

66 (2007) 2 SCC 1

61 PART F

would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ.

Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary.”67

A Constitution Bench of this Court in State of Tamil Nadu v State of Kerala68

ruled on the importance of separation as an entrenched constitutional principle.

The court held:

“126.1. Even without express provision of the separation of powers, the doctrine of separation of powers is an entrenched principle in the Constitution of India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of rule of law. In other words, the doctrine of separation of power though not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the scheme of Indian Constitution. Constitution has made demarcation, without drawing formal lines between the three organs—legislature, executive and judiciary. In that sense, even in the absence of express provision for separation of powers, the separation of powers between the legislature, executive and judiciary is not different from the Constitutions of the countries which contain express provision for separation of power.”69

52 The doctrine of separation restrains the legislature from declaring a

judgment of a court to be void and of no effect. However, in the exercise of its

law making authority, a legislature possessed of legislative competence can

enact validating law which remedies a defect pointed out in a judgment of a

court. While the legislature cannot ordain that a decision rendered by the court

is invalid, it may by enacting a law, take away the basis of the judgment such

67 Id, at page 105 68 (2014) 12 SCC 696 69 Id, at page 771

62 PART F

that the conditions on which it is based are so fundamentally altered that the

decision could not have been given in the altered circumstances.70

53 In State of UP v Jeet S Bisht71, the Court held that the doctrine of

separation of powers limits the “active jurisdiction” of each branch of

government. However, even when the active jurisdiction of an organ of the

State is not challenged, the doctrine allows for methods to be used to prod and

communicate to an institution either its shortfalls or excesses in discharging its

duty. The court recognized that fundamentally, the purpose of the doctrine is to

act as a scheme of checks and balances over the activities of other organs.

The Court noted that the modern concept of separation of powers subscribes

to the understanding that it should not only demarcate the area of functioning

of various organs of the State, but should also, to some extent, define the

minimum content in that delineated area of functioning.

Justice SB Sinha addressed the need for the doctrine to evolve, as

administrative bodies are involved in the dispensation of socio-economic

entitlements:

“83. If we notice the evolution of separation of powers doctrine, traditionally the checks and balances dimension was only associated with governmental excesses and violations. But in today's world of positive rights and justifiable social and economic entitlements, hybrid administrative bodies, private functionaries discharging public functions, we have to perform

70 I.N. Saksena v. State of MP (1976) 4 SCC 750; Indian Aluminium Co. v. State of Kerala (1996) 7 SCC 637; S.S Bola and Others v. B.D Sardana & Others (1997) 8 SCC 522; Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality (1969) 2 SCC 283; Supreme Court Advocates-on-Record-Association and Ors. v. Union of India (2016) 5 SCC 1 71 (2007) 6 SCC 586

63 PART F

the oversight function with more urgency and enlarge the field of checks and balances to include governmental inaction.

Otherwise we envisage the country getting transformed into a state of repose. Social engineering as well as institutional engineering therefore forms part of this obligation.”72

54 The constitutional validity of the Members of Parliament Local Area

Development (“MPLAD”) Scheme, which allocates funds to MPs for

development work in their constituencies was considered by a Constitution

Bench of this Court in Bhim Singh v Union of India73. The challenge was that

by entrusting funds to MPs, the Scheme vests governmental functions in

legislators and violates the separation of powers. The Court held that while the

concept of separation of powers is not found explicitly in a particular

constitutional provision, it “is inherent in the polity the Constitution has adopted”.

The Constitution Bench perceived that there is a link between separation and

the need to ensure accountability of each branch of government. While the

Constitution does not prohibit overlapping functions, what it prohibits is the

exercise of functions by a branch in a way which “results in wresting away of

the regime of constitutional accountability.” The Court held that by allowing

funds to be allocated to Members of Parliament for addressing the development

needs of their constituencies, the MPLAD Scheme does not breach the doctrine

of separation of powers. The administration of the scheme was adequately

supervised by district authorities.

72 Id, at page 619 73 (2010) 5 SCC 538

64 PART F

55 In Supreme Court Advocates-on-Record Association v Union of

India74, Justice Madan B Lokur observed that separation of powers does not

envisage that each of the three organs of the State – the legislature, executive

and judiciary - work in a silo. The learned judge held:

“678. There is quite clearly an entire host of parliamentary and legislative checks placed on the judiciary whereby its administrative functioning can be and is controlled, but these do not necessarily violate the theory of separation of powers or infringe the independence of the judiciary as far as decision- making is concerned. As has been repeatedly held, the theory of separation of powers is not rigidly implemented in our Constitution, but if there is an overlap in the form of a check with reference to an essential or a basic function or element of one organ of State as against another, a constitutional issue does arise. It is in this context that the 99th Constitution Amendment Act has to be viewed—whether it impacts on a basic or an essential element of the independence of the judiciary, namely, its decisional independence.”75

56 In State of West Bengal v Committee for Protection of Democratic

Rights, West Bengal76, this Court held that the doctrine of separation of

powers could not be invoked to limit the Court’s power to exercise judicial

review, in a case where fundamental rights are sought to be breached or

abrogated on the ground that exercise of the power would impinge upon the

doctrine.

57 In a more recent decision of a Bench of two learned judges of this Court

in Common Cause v Union of India77, the Court construed the provisions of

74 (2016) 5 SCC 1 75 Id, at page 583 76 (2010) 3 SCC 571 77 (2017) 7 SCC 158

65 PART F

the Lokpal and Lokayuktas Act, 2013 under which a multi-member selection

committee for the appointment of the Lokpal is to consist, among others, of the

Leader of the Opposition. A Bill for amending the provisions of the Act was

referred to a parliamentary committee which proposed the inclusion of the

leader of the largest opposition party in the Lok Sabha as a member, in lieu of

the Leader of the Opposition in the selection committee. The grievance of the

petitioners was that despite the enactment of the law, its provisions had not

been implemented. It was urged that even if there is no recognized Leader of

the Opposition in the Lok Sabha, the leader of the single largest opposition party

should be inducted as a part of the Selection Committee. Justice Ranjan Gogoi

speaking for this Court held thus:

“18. There can be no manner of doubt that the parliamentary wisdom of seeking changes in an existing law by means of an amendment lies within the exclusive domain of the legislature and it is not the province of the Court to express any opinion on the exercise of the legislative prerogative in this regard. The framing of the Amendment Bill; reference of the same to the Parliamentary Standing Committee; the consideration thereof by the said Committee; the report prepared along with further steps that are required to be taken and the time-frame thereof are essential legislative functions which should not be ordinarily subjected to interference or intervention of the Court. The constitutional doctrine of separation of powers and the demarcation of the respective jurisdiction of the Executive, the Legislature and the Judiciary under the constitutional framework would lead the Court to the conclusion that the exercise of the amendment of the Act, which is presently underway, must be allowed to be completed without any intervention of the Court. Any other view and any interference, at this juncture, would negate the basic constitutional principle that the legislature is supreme in the sphere of law-making. Reading down a statute to make it workable in a situation where an exercise of amendment of the law is pending, will not be justified either. A perception, however strong, of the imminent need of the law engrafted in the Act and its beneficial effects on the citizenry of a democratic country, by itself, will

66 PART F

not permit the Court to overstep its jurisdiction. Judicial discipline must caution the Court against such an approach.”78

58 While assessing the impact of the separation of powers upon the present

controversy, certain precepts must be formulated. Separation of powers

between the legislature, the executive and the judiciary is a basic feature of the

Constitution. As a foundational principle which is comprised within the basic

structure, it lies beyond the reach of the constituent power to amend. It cannot

be substituted or abrogated. While recognizing this position, decided cases

indicate that the Indian Constitution does not adopt a separation of powers in

the strict sense. Textbook examples of exceptions to the doctrine include the

power of the executive to frame subordinate legislation, the power of the

legislature to punish for contempt of its privileges and the authority entrusted to

the Supreme Court and High Courts to regulate their own procedures by framing

rules. In making subordinate legislation, the executive is entrusted by the

legislature to make delegated legislation, subject to its control. The rule making

power of the higher judiciary has trappings of a legislative character. The power

of the legislature to punish for contempt of its privileges has a judicial character.

These exceptions indicate that the separation doctrine has not been adopted in

the strict form in our Constitution. But the importance of the doctrine lies in its

postulate that the essential functions entrusted to one organ of the state cannot

be exercised by the other. By standing against the usurpation of constitutional

powers entrusted to other organs, separation of powers supports the rule of law

78 Id, at page 173

67 PART F

and guards against authoritarian excesses. Parliament and the State

Legislatures legislate. The executive frames policies and administers the law.

The judiciary decides and adjudicates upon disputes in the course of which facts

are proved and the law is applied. The distinction between the legislative

function and judicial functions is enhanced by the basic structure doctrine. The

legislature is constitutionally entrusted with the power to legislate. Courts are

not entrusted with the power to enact law. Yet, in a constitutional democracy

which is founded on the supremacy of the Constitution, it is an accepted

principle of jurisprudence that the judiciary has the authority to test the validity

of legislation. Legislation can be invalidated where the enacting legislature lacks

legislative competence or where there is a violation of fundamental rights. A

law which is constitutionally ultra vires can be declared to be so in the exercise

of the power of judicial review. Judicial review is indeed also a part of the basic

features of the Constitution. Entrustment to the judiciary of the power to test the

validity of law is an established constitutional principle which co-exists with the

separation of powers. Where a law is held to be ultra vires there is no breach of

parliamentary privileges for the simple reason that all institutions created by the

Constitution are subject to constitutional limitations. The legislature, it is well

settled, cannot simply declare that the judgment of a court is invalid or that it

stands nullified. If the legislature were permitted to do so, it would travel beyond

the boundaries of constitutional entrustment. While the separation of powers

prevents the legislature from issuing a mere declaration that a judgment is

erroneous or invalid, the law-making body is entitled to enact a law which

68 PART G

remedies the defects which have been pointed out by the court. Enactment of

a law which takes away the basis of the judgment (as opposed to merely

invalidating it) is permissible and does not constitute a violation of the

separation doctrine. That indeed is the basis on which validating legislation is

permitted.

59 This discussion leads to the conclusion that while the separation of

powers, as a principle, constitutes the cornerstone of our democratic

Constitution, its application in the actual governance of the polity is nuanced.

The nuances of the doctrine recognize that while the essential functions of one

organ of the state cannot be taken over by the other and that a sense of

institutional comity must guide the work of the legislature, executive and

judiciary, the practical problems which arise in the unfolding of democracy can

be resolved through robust constitutional cultures and mechanisms. The

separation doctrine cannot be reduced to its descriptive content, bereft of its

normative features. Evidently, it has both normative and descriptive features. In

applying it to the Indian Constitution, the significant precept to be borne in mind

is that no institution of governance lies above the Constitution. No entrustment

of power is absolute.

G A functional relationship

60 What then does the above analysis tell us about the functional

relationship of the work which is done by parliamentary committees and the role

69 PART G

of the court as an adjudicator of disputes? In assessing the issue, it must be

remembered, that parliamentary committees owe their existence to Parliament.

They report to Parliament. They comprise of the members of Parliament. Their

work consists of tendering advice to the legislature. A parliamentary committee

does not decide a lis between contesting disputants nor does it perform an

adjudicatory function. A committee appointed by the House can undoubtedly

receive evidence, including expert evidence, both oral and documentary. A

Select Committee may be appointed by the House to scrutinize a Bill. When the

committee performs its task, its report is subject to further discussion and

debate in the House in the course of which the legislative body would decide as

to whether the Bill should be enacted into law. The validity of the advice which

is tendered by a parliamentary committee in framing its recommendations for

legislation cannot be subject to a challenge before a court of law. The advice

tendered is, after all, what it purports to be: it is advice to the legislating body.

The correctness of or the expediency or justification for the advice is a matter

to be considered by the legislature and by it alone.

61 Department related standing committees are constituted by Parliament to

oversee the functioning of ministries/departments of government. It is through

the work of these committees that Parliament exacts the accountability of the

executive. It is through the work of these committees that Parliament is able to

assess as to whether the laws which it has framed are being implemented in

70 PART G

letter and spirit and to determine the efficacy of government policies in meeting

the problems of the day.

62 The contents of the report of a parliamentary committee may have a

bearing on diverse perspectives. It is necessary to elucidate them in order to

determine whether, and if so to what extent, they can form the subject matter of

consideration in the course of adjudication in a court. Some of these

perspectives are enumerated below:

(i) The report of a parliamentary committee may contain a statement of

position by government on matters of policy;

(ii) The report may allude to statements made by persons who have deposed

before the Committee;

(iii) The report may contain inferences of fact including on the performance

of government in implementing policies and legislation;

(iv) The report may contain findings of misdemeanor implicating a breach of

duty by public officials or private individuals or an evasion of law; or

(v) The report may shed light on the purpose of a law, the social problem

which the legislature had in view and the manner in which it was sought

to be remedied.

63 The use of parliamentary history as an aid to statutory construction is an

area which poses the fewest problems. In understanding the true meaning of

the words used by the legislature, the court may have regard to the reasons

71 PART G

which have led to the enactment of the law, the problems which were sought to

be remedied and the object and purpose of the law. For understanding this, the

court may seek recourse to background parliamentary material associated with

the framing of the law. In his seminal work on the Interpretation of Statutes,

Justice G P Singh notes that the traditional rule of exclusion in English Courts

has over a period of time been departed from in India as well to permit the court

to have access to the historical background in which the law was enacted.

Justice G P Singh79 notes:

“The Supreme Court, speaking generally, to begin with, enunciated the rule of exclusion of Parliamentary history in the way it was traditionally enunciated by the English Courts, but on many an occasion, the court used this aid in resolving questions of construction. The court has now veered to the view80 that legislative history within circumspect limits may be consulted by courts in resolving ambiguities. But the courts still sometimes, like the English courts, make a distinction between use of a material for finding the mischief dealt with by the Act and its use for finding the meaning of the Act. As submitted earlier this distinction is unrealistic and has now been abandoned by the House of Lords.”

64 Reports of parliamentary committees may contain a statement of position

by government on matters of policy. There is no reason in principle to exclude

recourse by a court to the report of the committee at least as a reflection of the

fact that such a statement was made before the committee. Similarly, that a

statement was made before the committee - as a historical fact - may be taken

note of by the court in a situation where the making of the statement itself is not

a contentious issue.

79 Justice G P Singh, PRINCIPLES OF STATUTORY INTERPRETATION (14th edn.) 253. 80 Kesavananda Bharati v. State of Kerala 1973 (4) SCC 225; Tata Power Co. Ltd. v. Reliance Energy Ltd (2009) 16 SCC 659; Namit Sharma v. Union of India (2013) 1 SCC 745.

72 PART G

65 In matters involving public interest which come up before the court, a

grievance is often made of the violation of the fundamental rights of persons

who by reason of poverty, ignorance or marginalized status are unable to seek

access to justice. Public interest litigation has been perceived as social action

litigation because a relaxation of the rules of standing has enabled constitutional

courts to reach out to those who have suffered discrimination and prejudice.

Whatever be the source of such discrimination – the feudal and patriarchal

structures of Indian society being among them – public interest litigation has

enabled courts to develop flexible tools of decision making and pursue

innovative remedies. The writ of continuing mandamus is one of them. In the

process, the violation of the fundamental rights of those groups of citizens who

may not be able to seek access to justice is sought to be remedied. Public

interest litigation has emerged as a powerful tool to provide justice to the

marginalized. In matters involving issues of public interest, courts have been

called upon to scrutinize the failure of the state or its agencies to implement law

and to provide social welfare benefits to those for whom they are envisaged

under legislation. Courts have intervened to ensure the structural probity of the

system of democratic governance. Executive power has been made

accountable to the guarantee against arbitrariness (Article 14) and to

fundamental liberties (principally Articles 19 and 21).

66 Committees of Parliament attached to ministries/departments of the

government perform the function of holding government accountable to

73 PART G

implement its policies and its duties under legislation. The performance of

governmental agencies may form the subject matter of such a report. In other

cases, the deficiencies of the legislative framework in remedying social wrongs

may be the subject of an evaluation by a parliamentary committee. The work

of a parliamentary committee may traverse the area of social welfare either in

terms of the extent to which existing legislation is being effectively implemented

or in highlighting the lacunae in its framework. There is no reason in principle

why the wide jurisdiction of the High Courts under Article 226 or of this Court

under Article 32 should be exercised in a manner oblivious to the enormous

work which is carried out by parliamentary committees in the field. The work of

the committee is to secure alacrity on the part of the government in alleviating

deprivations of social justice and in securing efficient and accountable

governance. When courts enter upon issues of public interest and adjudicate

upon them, they do not discharge a function which is adversarial. The

constitutional function of adjudication in matters of public interest is in step with

the role of parliamentary committees which is to secure accountability,

transparency and responsiveness in government. In such areas, the doctrine of

separation does not militate against the court relying upon the report of a

parliamentary committee. The court does not adjudge the validity of the report

nor for that matter does it embark upon a scrutiny into its correctness. There is

a functional complementarity between the purpose of the investigation by the

parliamentary committee and the adjudication by the court. To deprive the court

of the valuable insight of a parliamentary committee would amount to excluding

74 PART G

an important source of information from the purview of the court. To do so on

the supposed hypothesis that it would amount to a breach of parliamentary

privilege would be to miss the wood for the trees. Once the report of the

parliamentary committee has been published it lies in the public domain. Once

Parliament has placed it in the public domain, there is an irony about the

executive relying on parliamentary privilege. There is no reason or justification

to exclude it from the purview of the material to which the court seeks recourse

to understand the problem with which it is required to deal. The court must look

at the report with a robust common sense, conscious of the fact that it is not

called upon to determine the validity of the report which constitutes advice

tendered to Parliament. The extent to which the court would rely upon a report

must necessarily vary from case to case and no absolute rule can be laid down

in that regard.

67 There may, however, be contentious matters in the report of a

parliamentary committee in regard to which the court will tread with

circumspection. For instance, the report of the committee may contain a finding

of misdemeanor involving either officials of the government or private

individuals bearing on a violation of law. If the issue before the court for

adjudication is whether there has in fact been a breach of duty or a violation of

law by a public official or a private interest, the court would have to deal with it

independently and arrive at its own conclusions based on the material before it.

Obviously in such a case the finding by a Parliamentary Committee cannot

75 PART G

constitute substantive evidence before the court. The parliamentary committee

is not called upon to decide a lis or dispute involving contesting parties and

when an occasion to do so arises before the court, it has to make its

determination based on the material which is admissible before it. An individual

whose conduct has been commented upon in the report of a parliamentary

committee cannot be held guilty of a violation on the basis of that finding. In

Jyoti Harshad Mehta v The Custodian81, this Court held that a report of the

Janakiraman committee could not have been used as evidence by the Special

Court. The court held:

“57. It is an accepted fact that the reports of the Janakiraman Committee, the Joint Parliamentary Committee and the Inter- Disciplinary Group (IDG) are admissible only for the purpose of tracing the legal history of the Act alone. The contents of the report should not have been used by the learned Judge of the Special Court as evidence.”82

68 Section 57 of the Indian Evidence Act 1872 speaks of facts of which the

court must take judicial notice. Section 57 is comprised in Part II (titled ‘On

proof’). Chapter III deals with facts which need not be proved. Section 57(4)

provides as follows:

“57. Facts of which Court must take judicial notice – The Court shall take judicial notice of the following facts:-

*** (4). The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the legislatures established under any law for the time being in force in a Province or in the State.”

81 (2009) 10 SCC 564 82 Id, at page 582

76 PART G

In The Sole Trustee, Lok Shikshana Trust v The Commissioner of Income

Tax, Mysore83, a three judge Bench of this Court, while construing Section

57(4) made a distinction between the fact that a particular statement is made in

Parliament and the correctness of what is stated on a question of fact. The

former could be relied upon. However, the truth of a disputable question of fact

would have to be independently proved before the court. Justice HR Khanna

observed thus:

“33. We find that Section 57, sub-section (4) of the Evidence Act not only enables but enjoins courts to take judicial notice of the course of proceedings in Parliament assuming, of course, that it is relevant. It is true that the correctness of what is stated, on a question of fact, in the course of parliamentary proceedings, can only be proved by somebody who had direct knowledge of the fact stated. There is, however, a distinction between the fact that a particular statement giving the purpose of an enactment was made in Parliament, of which judicial notice can be taken as part of the proceedings, and the truth of a disputable matter of fact stated in the course of proceedings, which has to be proved aliunde, that is to say, apart from the fact that a statement about it was made in the course of proceedings in Parliament (see: Rt. Hon'ble Jerald Lord Strickland v. Carmelo Mifud Bonnici [AIR 1935 PC 34 : 153 IC 1] ; the Englishman Ltd. v. Lajpat Rai, ILR 37 Cal 760: 6 IC 81:

14 CWN 945.”84

A statement made by the Finance Minister while proposing amendment could,

it was held, be taken judicial notice of. Judicial notice would be taken of the fact

that “such a statement of the reason was given in the course of such a speech”.

83 (1976) 1 SCC 254 84 Id, at page 272

77 PART G

In Onkar Nath v The Delhi Administration85, another Bench of three judges

elaborated upon Section 57(4). Justice YV Chandrachud, speaking for the

Court, held thus:

“6. One of the points urged before us is whether the courts below were justified in taking judicial notice of the fact that on the date when the appellants delivered their speeches a railway strike was imminent and that such a strike was in fact launched on May 8, 1974. Section 56 of the Evidence Act provides that no fact of which the Court will take judicial notice need be proved. Section 57 enumerates facts of which the Court “shall” take judicial notice and states that on all matters of public history, literature, science or art the Court may resort for its aid to appropriate books or documents of reference. The list of facts mentioned in Section 57 of which the Court can take judicial notice is not exhaustive and indeed the purpose of the section is to provide that the Court shall take judicial notice of certain facts rather than exhaust the category of facts of which the Court may in appropriate cases take judicial notice. Recognition of facts without formal proof is a matter of expediency and no one has ever questioned the need and wisdom of accepting the existence of matters which are unquestionably within public knowledge. (See Taylor, 11th Edn., pp. 3-12; Wigmore, Section 2571, footnote; Stephen's Digest, notes to Article 58; Whitley Stokes' Anglo-Indian Codes, Vol. II, p. 887.) Shutting the judicial eye to the existence of such facts and matters is in a sense an insult to commonsense and would tend to reduce the judicial process to a meaningless and wasteful ritual. No court therefore insists on formal proof, by evidence, of notorious facts of history, past or present. The date of poll, the passing away of a man of eminence and events that have rocked the nation need no proof and are judicially noticed. Judicial notice, in such matters, takes the place of proof and is of equal force.”86

In Baburao Alias P B Samant v Union of India87, the court observed thus:

“31. The Lok Sabha Debates and the Rajya Sabha Debates are the journals or the reports of the two Houses of Parliament which are printed and published by them. The court has to take judicial notice of the proceedings of both the Houses of

85 (1977) 2 SCC 611 86 Id, at page 614 87 1988 (Supp.) SCC 401

78 PART H

Parliament and is expected to treat the proceedings of the two Houses of Parliament as proved on the production of the copies of the journals or the reports containing proceedings of the two Houses of Parliament which are published by them.”88

These observations were in the context, specifically, of the provisions of the

Evidence Act, including Section 57(4). The court held that the production of

debates of the Lok Sabha and Rajya Sabha containing the proceedings of the

two Houses of Parliament, relating to the period between the time when the

resolutions were moved in each of the two Houses and the time when the

resolutions were duly adopted amounted to proof of the resolutions. The court

was required to take judicial notice under Section 57.

H Conclusion

69 The issue which has been referred to the Constitution Bench is whether

the report of a Parliamentary Standing Committee can be relied upon in a

proceeding under Article 32 or Article 136 of the Constitution. Allied to this is

whether parliamentary privileges and the doctrine of separation of powers

(shades of which find expression in the often-used phrase ‘the delicate

balance’) impose restraints on the ability of the court to seek recourse to

parliamentary reports.

88 Id, at page 414

79 PART H

70 In finding an answer to the questions in reference, this Court must of

necessity travel from a literal and perhaps superficial approach, to an

understanding of the essence of what the Constitution seeks to achieve. At one

level, our Constitution has overseen the transfer of political power from a

colonial regime to a regime under law of a democratic republic. Legitimizing the

transfer of political power is one, but only one facet of the Constitution. To focus

upon it alone is to miss a significant element of the constitutional vision. That

vision is of about achieving a social transformation. This transformation which

the Constitution seeks to achieve is by placing the individual at the forefront of

its endeavours. Crucial to that transformation is the need to reverse the

philosophy of the colonial regime, which was founded on the subordination of

the individual to the state. Liberty, freedom, dignity and autonomy have

meaning because it is to the individual to whom the Constitution holds out an

assurance of protecting fundamental human rights. The Constitution is about

empowerment. The democratic transformation to which it aspires places the

individual at the core of the concerns of governance. For a colonial regime,

individuals were subordinate to the law. Individuals were subject to the authority

of the state and their well-being was governed by the acceptance of a destiny

wedded to its power. Those assumptions which lay at the foundation of colonial

rule have undergone a fundamental transformation for a nation of individuals

governed by the Constitution. The Constitution recognises their rights and

entitlements. Empowerment of individuals through the enforcement of their

rights is the essence of the constitutional purpose. Hence, in understanding the

80 PART H

issues which have arisen before the Court in the present reference, it is well to

remind ourselves that since the Constitution is about transformation and its

vision is about empowerment, our reading of precepts drawn from a colonial

past, including parliamentary privilege, must be subjected to a nuance that

facilitates the assertion of rights and access to justice. We no longer live in a

political culture based on the subordination of individuals to the authority of the

State. Our interpretation of the Constitution must reflect a keen sense of

awareness of the basic change which the Constitution has made to the polity

and to its governance.

71 A distinguished South African Judge, Albie Sachs has spoken of the

importance of understanding the value of constitutional transformation. In his

book titled ‘The Strange Alchemy of Life and Law’89, explaining the role of the

constitutional court, Sachs has this to say:

“It is difficult to analyse the impact that court decisions have on actual historical events. It may well be that the publicity given to the case, and the evidence and arguments presented had more impact on public life than did the actual decision. Yet any amount of forensic combat, however bitter and prolonged, is better than a single bullet. Submitting the harsh conflicts of our times to legal scrutiny – conducted transparently and in the light of internationally accepted values of fairness and justice – was a telling rebuttal of mercenarism and violence, whether from or against the State. It responded in a practical way to the immediate issues, and at the same time induced governments, judiciaries, and law enforcement agencies in three countries to engage with each other and carefully consider their powers and responsibilities under the international law. It reaffirmed to the South African public that we were living in a constitutional democracy in which all exercises of power were subject to constitutional control. It said something important about the kind of country in which

89 Justice Albie Sachs, The Strange Alchemy of Life and Law (Oxford University Press 2009) pages 32-33.

81 PART H

we lived and about the importance of principled and reasoned debate. It underlined that we had moved from a culture of authority and submission to the law, to one of justification and rights under the law.” (emphasis supplied)

72 In India, no less than in South Africa it is important to realise that citizens

live in a constitutional democracy in which every exercise of power is subject

to constitutional control. Every institution of the State is subject to the

Constitution. None lies above it. The most important feature of Sachs’ vision

relevant to our Constitution is that Indian society must move “from the culture

of authority and submission to the law, to one of justification and rights under

the law”.

73 Once we place the fulfilment of individual rights and human freedoms at

the forefront of constitutional discourse, the resolution of the present case

presents no difficulty. Individuals access courts to remedy injustice. As

institutions which are committed to the performance of a duty to facilitate the

realisation of human freedom, High Courts as well as this Court are under a

bounden obligation to seek and pursue all information on the causes of

injustice. Where the work which has been performed by a coordinate

constitutional institution – in this case a Parliamentary Committee, throws light

on the nature of the injustice or its causes and effects, constitutional theory

which has to aid justice cannot lead us to hold that the court must act oblivious

to the content of the report. History and contemporary events across the world

are a reminder that black-outs of information are used as a willing ally to

82 PART H

totalitarian excesses of power. They have no place in a democracy. Placing

reliance on the report of a Parliamentary Committee does not infringe

parliamentary privilege. No Member of Parliament is sought to be made liable

for what has been said or for a vote tendered in the course of a debate. The

correctness or validity of the report of a Parliamentary Committee is not a

matter which can be agitated before the Court nor does the Court exercise such

a function. Where an issue of fact becomes contentious, it undoubtedly has to

be proved before a court independently on the basis of the material on the

record. In other words, where a fact referred to in the report of the Parliamentary

Committee is contentious, the court has to arrive at its own finding on the basis

of the material adduced before it.

74 Parliamentary Committees are an intrinsic part of the process by which

the elected legislature in a democracy exacts accountability on the part of the

government. Department related Parliamentary Standing Committees

undertake the meticulous exercise of scrutinizing the implementation of law,

including welfare legislation and the performance of the departments of the

State. The purpose of law is to promote order for the benefit of the citizen and

to protect rights and entitlements guaranteed by the Constitution and by statute.

Access to justice as a means of securing fundamental freedoms and realizing

socio-economic entitlements is complementary to the work of other organs of

the State. The modern doctrine of separation of powers has moved away from

a ‘one organ – one function’ approach, to a more realistic perspective which

83 PART H

recognizes the complementarity in the work which is performed by institutions

of governance. Judicial review is founded on the need to ensure accountable

governance in the administration of law as an instrument of realizing the rights

guaranteed by the Constitution. If the function of judicial review in facilitating

the realization of socio-economic rights is construed in the context of the

modern notion of separation of powers, there is no real conflict between the

independence of the judicial process and its reliance on published reports of

Parliamentary Committees. Ultimately it is for the court in each case to

determine the relevance of a report to the case at hand and the extent to which

reliance can be placed upon it to facilitate access to justice. Reports of

Parliamentary Committees become part of the published record of the State.

As a matter of principle, there is no reason or justification to exclude them from

the purview of the judicial process, for purposes such as understanding the

historical background of a law, the nature of the problem, the causes of a social

evil and the remedies which may provide answers to intractable problems of

governance. The court will in the facts of a case determine when a matter which

is contentious between the parties would have to be adjudicated upon

independently on the basis of the evidence adduced in accordance with law.

In the circumstances, the reference is answered by holding that:

(i) As a matter of principle, there is no reason why reliance upon the report

of a Parliamentary Standing Committee cannot be placed in proceedings

under Article 32 or Article 136 of the Constitution;

84 PART H

(ii) Once the report of a Parliamentary Committee has been published,

reference to it in the course of judicial proceedings will not constitute a

breach of parliamentary privilege;

(iii) The validity of the report of a Parliamentary Committee cannot be called

into question in the court. No Member of Parliament or person can be

made liable for what is stated in the course of the proceedings before a

Parliamentary Committee or for a vote tendered or given; and

(iv) When a matter before the court assumes a contentious character, a

finding of fact by the court must be premised on the evidence adduced

in the judicial proceeding as explained in paragraphs 67 and 73.

75 The issues framed for reference are accordingly answered.

76 The proceedings may now be placed before the Hon’ble Chief Justice for

assignment of the case for disposal.

………........................................J [A K SIKRI]

...….............................................J [Dr D Y CHANDRACHUD]

New Delhi;

May 9, 2018.

85 1

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 558 OF 2012

KALPANA MEHTA AND ORS. ... PETITIONERS

VERSUS

UNION OF INDIA AND ORS. ... RESPONDENTS

WITH WRIT PETITION (C) NO. 921 OF 2013(PIL­W)

J U D G M E N T

ASHOK BHUSHAN, J.

This Constitution Bench is required to answer some

important Constitutional issues which also involve

issues relating to delicate balance between the

Parliament and the Judiciary. The Hon'ble Chief

Justice has circulated His Lordships' judgment which

has been carefully read by me. Although I am in

substantial agreement with the conclusions arrived by

My Lord the Chief Justice, but looking to the

importance of the issues involved I have penned my own 2

views & conclusions.

2. Whether acceptance and reliance on a Parliamentary

Standing Committee Report by this Court while hearing

a Public Interest Writ Petition amount to breach of

any privilege of the Parliament, is the sum &

substance of the questions referred to this

Constitution Bench. During course of hearing of these

Writ Petitions, learned senior counsel of respondent

No. 8 (M.S.D. Pharmaceuticals Private Limited) raised

objection regarding admissibility & consideration of

the Parliamentary Committee Report, considering which

objections following two questions have been referred

to be answered:

“(i) Whether in a litigation filed before this Court either under Article 32 or Article 136 of the Constitution of India, the Court can refer to and place reliance upon the report of the Parliamentary Standing Committee?

(ii) Whether such a Report can be looked at for the purpose of reference and, if so, can there be restrictions for the purpose of reference regard being had to the concept of parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive?” 3

3. The background facts as disclosed by the two writ

petitions giving rise to the above two questions need

to be noted now:

WRIT PETITION (C) NO.558 OF 2012

The Writ Petition as a Public Interest Litigation

has been filed by three petitioners, petitioner Nos.1

and 2 claim to be working for women health whereas the

Petitioner No.3 is a registered Society working with

women organisations to help them to improve their

lives and livelihood and to seek justice for

marginalised communities. In July, 2009, the

petitioners became aware of a so called demonstration

project work being carried out in States of Andhra

Pradesh and Gujarat by PATH (respondent No.6), a US

based NGO along with the Indian Council of Medical

Research(ICMR) and Governments of Andhra Pradesh and

Gujarat. In the above project about 32,000 young

adolescent girls in the age group of 10­14 years were

to be administered HPV (Human Papilloma Virus)

vaccines purported to be effective in preventing 4

cervical cancer. HPV vaccine, namely, “Gardasil” is

manufactured by respondent No.7­ Glaxosmithkline Asia

Pvt. Ltd. and “Cervarix” by respondent No.8­ M.S.D.

Pharmaceuticals Private Limited, licenced in India

only in July, 2008 and September, 2008 respectively by

Drug Controller General of India.

4. In July, 2009 vaccine Gardasil in Khammam District

in Andhra Pradesh was administered. Few girl childs

died. Health activists wrote to the Ministry of Health

pointing out concern about irregularities and health

risk of the HPV vaccine. Women organisation sent

representations and also conducted a fact finding

enquiry. On 15th April, 2010, Government of India

appointed a Committee to enquire into “alleged

irregularities in the conduct of studies using Human

Papilloma Virus(HPV) vaccine” by PATH in India. The

final report of Committee was submitted on 15.02.2011.

Enquiry committee noted several discrepancies. The

Parliamentary Standing Committee of Department of

Health Research, Ministry of Health and Family Welfare 5

while examining the demand for grants (2010­11) of

Department of Health Research took up the issue of

trial of HPV vaccine on children in Districts of

Khammam, Andhra Pradesh and Vadodara, Gujarat.

Parliamentary Standing Committee (hereinafter referred

to as “P.S.C.”) deliberated on the subject and held

various meetings. The Committee heard the UOI, ICMR,

Department of Drugs Controller General of India and

also took oral evidence. The Departmental Standing

Committee submitted its report (72nd Report) to Rajya

Sabha on 30th August, 2013 which was also laid on the

table of Lok Sabha on 30th August, 2013. The P.S.C.

found various shortcomings and lapses of the

Government Departments, ICMR as well as on part of the

respondent Nos.6 to 8. Various directions and

recommendations were issued by the Committee. Again a

detailed report, namely, 81st Report on “action taken

by the Government on the recommendations/ observations

contained in the 72nd Report on the alleged

irregularities in the conduct of studies using Human

Papilloma Virus(HPV) vaccine by PATH” in India was 6

submitted to Rajya Sabha on 23rd December, 2014 and

also laid on the table of Lok Sabha on 23rd December,

2014. Both the reports have been brought on record.

Writ Petition (C) No. 921 of 2013

5. The Writ Petition as a Public Interest Litigation

has been filed by petitioners of which petitioner Nos.

1 and 2 are public trusts and petitioner Nos. 3 and 4

are registered societies. The petitioners have

questioned the methods in which clinical trials for

medicines including vaccines are taking place in this

country to the disadvantage of vulnerable groups in

the society including the poor, tribal, women and

children. The facts and pleadings in the writ

petition are on the line of facts and pleadings as

contained in Writ Petition (c) No. 558 of 2012, hence

are not repeated for brevity. Petitioners have prayed

for various reliefs including declaration that HPV

Vaccine Observational Study Demonstration Project was

a Phase IV clinical trial within the meaning of

various Rules in Drugs and Cosmetics Rules, 1945. 7

Petitioners have made several prayers including the

prayers for grant of compensation and direction for

investigation by Special Investigation Team of various

offences committed by respondent Nos. 2 to 8.

6. In both the writ petitions, most of materials

including fact finding enquiry conducted by the

petitioner No.1 in Writ Petition (C) No. 921 of

2013(PIL­W), newspapers reports, articles,

representations, correspondence have been referred to

and relied. Apart from other materials, reference and

reliance on 72nd Report presented on 30th August, 2013

and 81st Report presented on 23rd December, 2014 to

Rajya Sabha have also been placed.

7. A two Judge Bench of this Court while hearing the

writ petitions has posed several questions and issued

various directions. In this context the Court passed

various directions on 12.08.2014, 13.01.2015 and

17.11.2015.

8

8. When the matter was heard on 18.11.2015 by two

Judge Bench this Court Stated : “Be it noted, a

substantial issue in law has arisen in course of

hearing of this case which pertains to exercise of

power of judicial review when a report of the

Parliamentary Standing Committee is filed before the

Court.” After hearing the parties on 18.11.2015 the

two Judge Bench of this Court by a detailed order

dated 05.04.2017 has referred two questions as noted

above to be answered by a Constitution Bench.

SUBMISSIONS

9. We have heard Shri Colin Gonsalves, learned senior

advocate for petitioner in Writ Petition (C)

No.558/2012 and Shri Anand Grover, learned senior

advocate for petitioner in Writ Petition (C) No.921 of

2013. Shri Harish Salve and Shri Gourab Banerji,

learned senior advocates have appeared for respondent

No.8­MSD Pharmaceuticals Private Limited. Shri Shyam

Divan, learned senior advocate has appeared for PATH

International. We have also heard Shri K.K.Venugopal,

learned Attorney General of India.

9

10. Shri Salve submits that Parliamentary Committee

Report can neither be looked into nor relied by this

Court. Shri Salve, however, submits that there are two

areas where Parliamentary Committee Report can be

relied i.e. (a) legislative history of a statute and

(b) Minister's statement in the House. The Members of

Parliament as well as those who appear before the

Parliamentary Committee are fully protected by the

legislative privileges of the members as well as of

the Houses. Article 105 sub­clause (2) of the

Constitution of India provides that no member of

Parliament shall be liable to any proceedings in any

court in respect of anything said or any vote given by

him in Parliament or any committee thereof. He further

submits that as per Article 105 sub­clause (3) the

powers, privileges and immunities of each House of

Parliament, and of the members and the committees of

each House, is same as of those of the House of

Commons as it exists on 26th November, 1950. Article

105 sub­clause (4) extends the privileges as referred

to in clauses (1), (2) and (3) to all persons who have 10

the right to speak in, and otherwise to take part in

the proceedings of any House of Parliament or any

committee thereof. Evidence led in a Court cannot be

criticised. Same principles can apply with regard to

evidence taken by a Parliamentary Committee. A

committee of Parliament is part of Parliament.

11. The principal submission which has been canvassed

by Shri Salve is that there being legislative

privilege of all acts done in the Parliament including

report of Parliamentary Committee, the report cannot

be challenged in a Court of Law. He submits that

reliance of a Parliamentary Committee Report also

involves a challenge to the report by other parties.

No adjudication can be entertained by this Court with

regard to a Parliamentary Committee Report, hence

reliance placed by the petitioner on the Parliamentary

Committee Report is misplaced.

12. Relying on Article IX of Bill of Rights 1688, Shri

Salve submits that it confers on 'proceedings in 11

Parliament' protection from being 'impeached or

questioned' in any 'court or place out of Parliament'.

He submits that Indian Parliament is conferred the

same privileges which are enjoyed by the House of

Commons, hence Parliamentary Committee Report can

neither be relied nor questioned in any Court of Law.

Shri Salve referred to various English cases and

several judgments of this Court which shall be

referred to while considering the submissions in

detail.

13. Shri K.K. Venugopal, learned Attorney General also

contends that Parliamentary Reports cannot be relied

in Court. He submits that although there is no rigid

separation of powers in the three wings of States but

each wing of the States works in its own sphere.

Parliament is supreme in its proceedings which

proceedings cannot be questioned in any Court of Law.

The Parliamentary Reports cannot be made subject

matter of an issue in any proceeding of Court of Law

or even in a public interest litigation. He submits 12

that all wings of the States have to work in their own

spheres so as not to entrench upon the sphere allotted

to other wing of State. He submitted that referring to

a report of Parliamentary Committee is a sensitive

issue of jurisdiction between Courts and Parliament

which should be avoided by this Court. When the

courts cannot adjudicate on Parliamentary Committee

Report, what is the use of looking into it. Referring

to Section 57(4) of the Evidence Act, 1872 which

provides that the Court shall take judicial notice of

the proceedings of the Parliament and the Legislature

established under any law for the time being in force,

he submits that the substitutions were made in sub­

clause (4) of Section 57 by Adaptation Order of 1950

which were orders issued by the President and were not

amendments made by Parliament in Section 57. He

submits that by Adaptation Order various words which

were earlier used in Evidence Act, 1872 were changed

after adoption of Constitution which cannot be treated

to be an act done by conscious deliberation of

Legislature. He submits that historical facts as well 13

as statement of Minister in Parliament can be used

with which there cannot be any quarrel. He, however,

submits that inferences in Parliamentary Committee

Report are not acceptable. He submits that when any

litigant wants to prove a fact, he has to search

material and produce evidence and he cannot be allowed

to take a shortcut by placing reliance on the

Parliamentary Committee Report. Parliamentary

Committee Report, is, in a manner, a speech. Article

105 of the Constitution does not make any distinction

with reports which can be termed to as Social Welfare

Reports or other kinds of reports. He submits that

there is total bar in looking into the Reports of

Parliament based on separation of power and express

provisions of Article 105(2) and 105(4) of the

Constitution of India. The very fact that Speaker can

say ‘no’ with regard to any parliamentary material, it

has to be assumed that they operate as total bar on

use of parliamentary material as evidence. The

protection which is extended to a Member of Parliament

is also extended to the Parliamentary proceedings and 14

Parliamentary reports.

14. Shri Colin Gonsalves, learned senior counsel

appearing for the petitioner submits that the

petitioner does not intend to challenge any part of

the Parliamentary Committee Report. The Writ

Petitioner seeks nothing which may give rise to any

question of breach of Parliamentary privileges. The

writ petitioner is not asking this Court to take any

facts stated in Parliamentary Report to be conclusive

except which is permissible under Section 57 of

Evidence Act, 1872. As per the Evidence Act, 1872, the

Parliamentary proceedings are public documents which

are admissible in evidence. The petitioner does not

ask for issuing any mandamus to enforce the

Parliamentary Committee Report. The cases cited by

Shri Harish Salve in support of his submissions relate

to breach of privileges of members of Parliament

whereas present is not a case involving any breach of

any privileges of a member of Parliament. Neither any

question is being raised in the Writ Petition 15

questioning any action or conduct of any member of

Parliament nor petitioner is asking to initiate any

proceeding against any member of Parliament. He

submits that facts noticed and stated in Parliamentary

report can very well be relied. The Parliament by its

procedure permits the Committee Report to be filed in

the Court, hence there is no prohibition in the Court

in looking into the Parliamentary Report.

15. It is further submitted that in the present case,

it is the Executive, which is trying to protect itself

taking shield of Parliamentary privileges whereas

Parliament does not take objection or offence of its

reports being relied and used. When the reports are

published by Parliament the process is over and

thereafter there is no prohibition on reports being

filed as evidence and used by all concern. This court

should follow the principles of the comity of the

institution instead of relying on principles of

separation of power and conflict of the institution.

Under the Right to Information Act, the Parliamentary 16

Reports can be sought for and used by all concern. The

present is an age of transparency, in which period the

respondent cannot be heard in saying that benefits of

report should be blacked out from the courts.

16. The 72nd and 81st Parliamentary Committee Reports

play a very important role since they unearth the

events of the illegal vaccination done on poor and

malnourished young tribal girls and further it has

commented adversely on the role of Government agencies

such as ICMR and DGCI and the State of Andhra Pradesh

and Gujarat. The Government officials had appeared

before the Parliamentary Committee and admitted

several wrong doings.

17. Shri Anand Grover, learned senior advocate

appearing for petitioners in Writ Petition (C) No.921

of 2013 has adopted most of the submissions of Shri

Colin Gonsalves but has raised certain additional

submissions. Shri Grover submits that truth and

contents of documents are two entirely different 17

things. When document is admitted what is proved is

document and contents and not the truth. He submits

that there is no question of challenging the findings

of the Parliamentary Committee’s Report nor the

reports are being questioned in this Court. Shri

Grover has also referred to several English cases as

well as judgments of Australian High Court, U.S.

Supreme Court and of this Court. Referring to Section

16(3) of the Australian Parliamentary Privileges Act

1987, Shri Grover submits that law as applicable in

Australia by virtue of Section 16(3) is not applicable

in India nor has been accepted as law applicable in

United Kingdom. He submits that Parliamentary

Committee Report which is a measure of social

protection should be looked into by the Court while

rendering justice to the common man especially in

Public Interest Litigation.

18. Shri Grover further submits that Parliamentary

Committee Reports can be relied only when they are

published and becomes a public document. He submits 18

that statements can be looked into from the

Parliamentary Committee Report but not the inferences

and findings. The Parliamentary Committee Reports have

been obtained from the House and no kind of privilege

is involved.

19. Shri Shyam Divan, learned senior advocate

appearing for PATH submits that PATH is a non­profit

body operating in area of health. Referring to Section

57 of the Evidence Act, Shri Divan Submits that sub­

section (4) of Section 57 uses the phrase 'course of

proceeding'. He submits that the expression ‘course of

proceeding’ does not comprehend the Parliamentary

reports. He submits that when in this Court anyone

traverses or controverts a Parliamentary Committee

Report, it is not in the interest of the comity of the

institutions. He submits that references to

Parliamentary proceedings are possible only in two

areas i.e. in interpreting a Legislation and Statement

of a Minister. He submits that entire report is to be

examined as a whole. The answering respondent in Writ 19

Petition (C) No.921 of 2013 in its counter affidavit

has challenged the veracity of the findings of the

Parliamentary Standing Committee Report. The

Parliamentary Committee is the functional organ of the

Parliament which also enjoys the privileges and

immunity provided under Article 105(2) of the

Constitution of India. The reports of Parliamentary

Committee are not amenable to judicial review.

Parliamentary Standing Committee Reports are not to be

relied in court proceedings in as much as traversing

or contesting the content of report, it may cause

breach of Parliamentary privileges under Article 105

and Article 122 of the Constitution of India.

Challenge to such reports may invite contempt

proceedings by Parliament for breach of privileges.

The Parliamentary reports cannot be basis for any

action in law both criminal and civil in any court

including Writ Petition or Public Interest Litigation.

20. Shri Gourab Banerji, learned senior advocate,

replying the submissions of Shri Colin Gonsalves and 20

Shri Anand Grover, submits that recommendations and

conclusions of Parliamentary Committee Reports cannot

be relied. A moment there is a fact finding in report,

it cannot be looked into.

21. We have considered above submissions and perused

the record. For answering the two questions referred

to this Constitution Bench, as noted above, we need to

consider the following issues:

a. Whether by accepting on record a Parliamentary Standing Committee's Report by this Court in a case under Article 32 or 136, any privilege of Parliament is breached.

b. In the event, a Parliamentary Standing Committee's Report can be accepted as an evidence, what are the restrictions in its reference and use as per the parliamentary privileges enjoyed by the Legislature of this country.

c. Whether in traversing and questioning the reports, the private respondents may invite a contempt of House.

22. The above issues being inter­connected, we proceed 21

to examine all the issues together. While considering

the above issues, we have divided our discussion in

different sub­heads/ topics for overall understanding

of parliamentary privileges enjoyed by the Indian

Legislature.

A. PARLIAMENTARY PRIVILEGES