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

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, J.

Though the present writ petitions were preferred in the

years 2012 and 2013 and the debate had centered around on

many an aspect relating to action taken by the Drugs Controller

General of India and the Indian Council of Medical Research Signature Not Verified Digitally signed by CHETAN KUMAR Date: 2017.04.15 12:18:01 IST (ICMR) pertaining to approval of a vaccine, namely, Human Reason:

Papilloma Virus (HPV) manufactured by the respondent No. 7, 2

M/s. GlaxoSmithKline Asia Pvt. Ltd. and the respondent No.8,

MSD Pharmaceuticals Private Limited, respectively for preventing

cervical cancer in women and the experimentation of the vaccine

was done as an immunization 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. The issue also arose with regard to

the untimely death of certain persons and grant of compensation.

Certain orders were passed by this Court from time to time.

2. A stage came in the life span of this litigation, which is still

in continuation, when the Court vide order dated 12th August,

2014, had posed the following questions:-

“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 72 nd report on 30.08.2013?

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 3

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 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. In the said order, the Court had also directed as follows:-

“At this juncture, we are obligated to state the Union of India, who is required to assist this Court in proper perspective, shall direct its competent authority to produce the file by which the Drugs Controller General of India had approved the vaccine for introduction in India. Mr. Suri, learned senior counsel for the Union of India will produce the said file. Additionally, the relevant documents shall also be provided to the concerned counsel for the petitioners.”

4. In the course of proceedings, affidavits were filed by the

Union of India and the State of Gujarat. Learned counsel for the

petitioners, Mr. Colin Gonsalves in Writ Petition (C) No. 558 of

2012 and Mr. Anand Grover in Writ Petition (C) No. 921 of 2013

had drawn the attention of this Court to the 81 st Report dated

22nd December, 2014 of the Parliamentary Standing Committee.

Be it noted, when the report of the Parliamentary Standing

Committee was produced, the question arose with regard to the 4

“concept of consent” for administration of vaccine and the

resultant illness suffered by the victims and such other issues

and the Court had issued certain directions for filing of affidavits

pertaining to steps that have been taken by the concerned

Governments keeping in view the various instructions given from

time to time including what has been stated in the report of the

Parliamentary Standing Committee.

5. It is worthy to note here that certain affidavits were filed

about the safety measures being undertaken with regard to the

consent and the method of trial and the improvements made

thereon. In essence, the stand of the Union of India and the

States was that the vaccine was necessary and steps have been

taken to avoid any kind of hazards. That apart, the factual

allegations made by the petitioners were also controverted.

6. On 18th November, 2015, an issue was raised by the learned

senior counsel appearing for the respondent No. 8, MSD

Pharmaceuticals Private Limited and by the learned Additional

Solicitor General whether this Court while exercising the power of

judicial review or its expansive jurisdiction under Article 32

dealing with the public interest litigation, can advert to the report

of the Parliamentary Standing Committee and on that basis issue

directions. After the said issue was posed, the learned counsel 5

for the parties sought time to file written notes of submissions

and argue the matter. Regard being had to importance of the

matter, assistance of the learned Attorney General for India was

sought.

7. Mr. Mukul Rohatgi, learned Attorney General for India has

filed a written note of submission contending, inter alia, that the

reports of the Parliamentary Standing Committee are at best

external aids of construction in order to determine the

surrounding circumstances or the historical facts for the purpose

of discerning the mischief sought to be remedied, but not for any

other purpose. He has referred to certain authorities which we

shall refer to in the course of our deliberation. We may clarify

that though Mr. Rohatgi has filed the written note of

submissions, today we have been assisted by Mr. Ranjit Kumar,

learned Solicitor General, Mr. A.K. Panda and Mr. Ajit Kumar

Sinha, learned senior counsel and Mrs. Rekha Pandey, learned

counsel on behalf of Union of India.

8. Mr. Grover and Mr. Gonsalves, learned senior counsel

appearing for the petitioners, who intend to reply on the report of

the Parliamentary Standing Committee submitted that looking at

the report of the Parliamentary Standing Committee by this

Court in a writ petition preferred under Article 32 of the 6

Constitution is only to be apprised about facts to arrive at a

conclusion for the purpose of issue of necessitous directions and

there cannot be absolute rule that it cannot be looked at.

According to them, there is no impediment to rely on the said

report as the reports of the Parliamentary Standing Committee

are put on the website and in such a situation, the Court can

always take aid of the report not only for the purpose of

understanding the legislative intendment of a legislation, but also

for taking the facts into consideration to issue any prerogative

writ. Learned senior counsel would contend that as long as the

reference to report does not violate the freedom of speech of the

members of the Committee or there is no attempt to impugn the

report or criticize the same, reliance on the same should not be

prohibited. It is urged by Mr. Gonsalves that the role of the

Parliament in the modern democracy has gone beyond the

traditional concept and the perception is to have a transparent

society and when there is access to the report, there is no

warrant not to utilize the same in a proceeding before the Court.

9. Learned senior counsel appearing for the Union of India

would in reply submit that the arguments advanced by the

learned counsel for the petitioners are to be tested on the

constitutional parameters and various Articles of the 7

Constitution are to be read in proper perspective. It is asserted

by him that the constitutional scheme does not favour the

interpretation which is sought to be placed by the learned

counsel for the petitioners. According to the learned counsel for

Union of India, the report of the Parliamentary Standing

Committees are meant to guide the functioning of the

departments and work as a precursor to the debate in Parliament

but not meant to be used in court as it does not countenance any

contest in a court of law.

10. To appreciate the controversy, we may usefully refer to the

Rules of Procedure and Conduct of Business of Lok Sabha Rules

(for short, 'the Rules'). Rule 2 of the Rules defines the

“Parliamentary Committee”. For the sake of completeness, we

reproduce the same:-

““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.”

11. 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) 8

Adhoc Committees. The Standing Committees are categorized

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;

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;

vi) 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 15 Members from the Sittings of the House 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 9

Committee on Private Members 15 Bills and Resolutions

Committee on Public Accounts 22

Committee on Public 22 Undertakings

Committee on Subordinate 15 Legislation

Committee on the Welfare of 30 Scheduled Castes and Scheduled Tribes

House Committee 12

Joint Committee on Offices of 15 Profit

Joint Committee on Salaries and 15 Allowances of Members of Parliament

Library Committee 9

Rules Committee 15

vi) Apart from the above, there are various

departmentally related Standing Committees under various ministries.”

12. From the aforesaid, it is quite clear that there are various

departmentally related Standing Committees under various

Ministries. It is apt to note here that in the case at hand, Rule

270 of the Rules which deals with the functions of the

Parliamentary Committee meant for Committees Rajya Sabha is

relevant. It reads as follows:-

10

“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.”

13. Rule 271 provides for 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.” 11

14. 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. The said Rule is as

follows:-

“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.”

15. Relying on the said Rule, it is argued by the learned counsel

for the petitioners that the report of the Standing Committee has

a persuasive value and hence, it can be taken note of for the

purpose of fact finding by this Court. The learned counsel for the

Union of India, on the contrary, would contend that as per the

scheme of the Rules, it is meant to have persuasive value and

considered as an advice given by the Standing Committee to the

Parliament.

16. It is submitted on behalf of the Union of India that the Rules

277 – 279 deal with submission of the Report of the Committee

and provide that if no time frame is given, the same would be

submitted within a month from the appointment of the

Committee and the reports shall be presented to the House by

the Chairperson. It is further urged that the reports submitted by 12

the different Committees are examined/debated by the House

and only thereafter they are adopted. Our attention has been

drawn to Rule 277 and Rule 278 made for Lok Sabha which

provide for Scope of Advice regarding reports submitted by

Select/Joint Committees. In essence, the purpose of reliance is,

it is a matter of concern to the debates in the Parliament.

17. 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 :

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-incharge 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 13

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 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.”

18. In the said document in respect of Standing Committees of

Parliament, it has been observed:-

“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., scrutinize 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.”

19. We have referred to the same as a holistic reading of the

said document conveys that the Parliamentary Standing 14

Committee makes the executive accountable to it on certain

issues. As is indicated hereinbefore, Mr. Grover and Mr.

Gonsalves, learned senior appearing for the writ petitioners,

would contend that the executive being accountable to the

Parliamentary Standing Committee, the report of the Committee

which is in the public domain and hence, that can be relied upon

by them to buttress a fact situation and in any way, establish it.

Learned counsel for the Union of India and the contesting

respondents, per contra, would urge that the Parliamentary

Standing Committee report cannot be tendered as a piece of

evidence to prove a fact and once it is referred to, it invites a

contest and criticism.

20. We may fruitfully state that the procedure of the Committee

is neither inquisitorial nor adjudicative. It has its own character.

The procedure is sui generis. In the Westminister system,

Parliament also deals with the matter of accountability of the

executive and standing Committees of Parliament, on many an

occasion, examine the propriety and wisdom of the conduct of

the executive. The reports of the Committees are for the

assistance of Parliament. The procedure for drawing up such

reports, is entirely a matter for the Committee and it has

authority to receive evidence from witnesses – but it is for their 15

own assistance. No person has a right to be heard by the

Committee even if the Committee is examining a matter which

may result in an adverse comment on the conduct of such

person. The principles of natural justice are not applicable.

21. It is apt to note here that Mr. Grover and Mr. Gonsalves

have placed reliance on the authority of Raja Ram Pal v.

Hon'ble Speaker, Lok Sabha and others1, wherein in

paragraph 431(a), it has been said:-

“(a) Parliament is a coordinate organ and its views do deserve defence even while its acts are amenable to judicial scrutiny.”

22. Learned counsel for the petitioners have also placed reliance

on a two-Judge Bench decision in Krishan Lal Gera v. State of

Haryana and others2. In the said case, the report submitted by

the Parliamentary Standing Committee on Human Resources

Development has been referred to. They have also cited certain

English authorities which relate to reliance upon the report in

trials without impugning the same.

23. At this stage, we may gainfully refer to the authorities cited

by the learned counsel for Union of India and the contesting

1 (2007) 3 SCC 184 2 (2011) 10 SCC 529 16

respondents. In A.K. Roy v. Union of India and others3 , it has

been held thus:-

“But we find ourselves unable to intervene in a matter of this nature by issuing a mandamus to the Central Government obligating it to bring the provisions of Section 3 into force. The Parliament having left to the unfettered judgment of the Central Government the question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the court to compel the government to do that which, according to the mandate of the Parliament, lies in its discretion to do when it considers it opportune to do it. The executive is responsible to the Parliament and if the Parliament considers that the executive has betrayed its trust by not bringing any provision of the Amendment into force, it can censure the executive. It would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet we should show our disapproval of it by issuing a mandamus. The court's power of judicial review in such cases has to be capable of being exercised both positively and negatively, if needed it has that power:

positively, by issuing a mandamus calling upon the government to act and negatively by inhibiting it from acting. If it were permissible to the court to compel the government by a mandamus to bring a constitutional amendment into force on the ground that the government has failed to do what it ought to have done, it would be equally permissible to the court to prevent the government from acting, on some such ground as that, the time was not yet ripe for issuing the notification for bringing the Amendment into force.”

24. The aforesaid passage shows that the Court does not have

the power to direct the Parliament to bring an Act into force.

Drawing an analogy, it is canvassed that as the Court cannot

3 (1982) 1 SCC 271 17

issue a writ to implement the report of the Parliamentary

Standing Committee or rely on it for the purpose of issuance of a

writ.

25. Ms. Manisha Singh, learned counsel appearing for the

respondent No.6, PATH International, contended that the report

of the Parliamentary Standing Committee cannot be assailed as

has been held in M.S.M. Sharma v. Dr. Shree Krishna Sinha

and Others4. In this regard, she has drawn our attention to

paragraph 431(o) of Raja Ram Pal (supra) which states thus:-

“The truth or correctness of the material will not be questioned by the court nor will it go into the adequacy of the material or substitute its opinion for that of the legislature.”

26. Reliance has been placed on the aforesaid conclusion to lay

thrust on the point that there cannot be a combat or dispute over

the report of the Parliamentary Standing Committee in a court of

law and, therefore, the respondents are debarred from contesting

the same and that is the singular ground not to place reliance

upon the same.

27. In Sarojini Ramaswami vs. Union of India and others5,

the Court observed that a finding of guilt recorded by the

Parliamentary Standing Committee on the charges is not

4 AIR 1960 SC 1186 5 (1992) 4 SCC 506 18

conclusive and final and the Parliament can still hold that

charges levelled against the person concerned do not amount to

misbehavior and may decide not to adopt the motion. Though

the decision was rendered in a different context, it has been

taken aid of to bolster the proposition that the report of the

Parliamentary Standing Committee does not attain finality,

inasmuch as it is subject to debate in the Parliament and subject

to further action taken by the Parliament.

28. Inspiration has also been drawn from the authority in Arun

Kumar Agrawal vs. Union of India and others6, wherein it has

been stated in the context of the report of the Comptroller and

Auditor General of India (CAG) that the report of the CAG is

always subject to Parliamentary debates and it is possible that

the Parliamentary Accounts Committee can accept the Ministry's

objection to the CAG report or reject the report of the CAG. What

has been stated is that CAG though indisputably is an

independent constitutional functionary, yet it is for the

Parliament to decide whether after receiving the report, i.e. the

Parliamentary Accounts Committee to make its comments on the

CAG's report. The emphasis is on the areas of demarcation of

power of the Parliament and its supremacy within its sphere.

6 (2013) 7 SCC 1 19

29. On behalf of the Union of India, two decisions, namely, R v.

Murphy7 and Office of Government Commerce v. Information

Commissioner8 have been referred to highlight that there has

been exclusion of discussion of the Parliamentary report.

30. At this juncture, we may note with profit, how this Court

has taken aid of the debates of the Constituent Assembly,

Parliamentary notes, speeches given in the Parliament and the

report of the Parliamentary Standing Committee. In Indra

Sawhney v. Union of India9, Jeevan Reddy, J., speaking for the

majority, held that debates in Constituent Assembly can be relied

upon as an aid to interpretation of a constitutional provision and

for the said purpose the learned Judge relied upon the decisions

in Madhu Limaye, In re10, Union of India v. Harbhajan Sinhg

Dhillon11 and several opinions in Kesavananda Bharati

Sripadagalvaru v. State of Kerala and another12.

31. In Manoj Narula v. Union of India13, the majority of the

Constitution Bench relied on the Constituent Assembly debates

while dealing with the concept of constitutional trust.

7 (1986) 5 NSWLR 18 8 [2008] EWHC 737 (Adnin) 9 1992 Supp (3) SCC 217 10 (1969) 1 SCC 292 11 (!971) 2 SCC 779 12 (1973) 4 SCC 225 13 (2014) 9 SCC 1 20

32. As the Constituent Assembly debates are referred to for

interpretation of a constitutional provision and especially to

understand the context, similarly judicial notice of parliamentary

proceedings can be taken note of for the purpose of appreciating

the intention of the legislature.

33. In Jyoti Harshad Mehta and others v. Custodian and

others14, it has been held that reports of the Joint Parliamentary

Committee are admissible only for the purpose of tracing the

legal history of the legislation.

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

of Ministers in the Parliament are referred to on certain occasions

for limited purposes. A Constitution Bench in State of W.B. v.

Union of India15 has held:-

“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 mean- ing and effect of the substantive provisions of the statute. They cannot be used except for the limited pur- pose of understanding the background and the an- tecedent state of affairs leading up to the legislation. But we cannot use this statement as an aid to the con- struction of the enactment or to show that the legisla- ture did not intend to acquire the proprietary rights vested in the State or in any way to affect the State Gov- ernments’ rights as owners of minerals. A statute, as passed by Parliament, is the expression of the collective intention of the legislature as a whole, and any state- ment made by an individual, albeit a Minister, of the in-

14 (2009) 10 SCC 564 15 AIR 1963 SC 1241 21

tention and objects of the Act cannot be used to cut down the generality of the words used in the statute.”

35. In K.P. Varghese v. Income-tax Officer, Ernakulam and

another16 the Court while referring to the budget speech of the

Minister ruled:-

“Now it is true that the speeches made by the Members of the Legislature on the floor of the House when a Bill for enacting a statutory provision is being debated are inadmissible for the purpose of interpreting the statu- tory provision but the speech made by the Mover of the Bill explaining the reason for the introduction of the Bill can certainly be referred to for the purpose of ascertain- ing the mischief sought to be remedied by the legislation and the object and purpose for which the legislation is enacted. This is in accord with the recent trend in juris- tic thought not only in western countries but also in In- dia that interpretation of a statute being an exercise in the ascertainment of meaning, everything which is logi- cally relevant should be admissible. In fact there are at least three decisions of this Court, one in Loka Shik- shana Trust v. CIT17, the other in Indian Chamber of Commerce v. Commissioner of Income Tax18 and the third in Additional Commissioner of Income Tax v. Surat Art Silk Cloth Manufacturers’ Association19 where the speech made by the Finance Minister while introducing the ex- clusionary clause in Section 2, clause (15) of the Act was relied upon by the Court for the purpose of ascer- taining what was the reason for introducing that clause.”

36. Similar references have also been made in Ramesh Yesh-

want Prabhoo v. Prabhakar Kashinath Kunte20. That apart,

16 AIR 1981 SC 1922 17 AIR 1976 SC 10 18 AIR 1976 SC 348 19 AIR 1980 SC 387 20 (1996) 1 SCC 130 22

Parliamentary debates have also been referred to appreciate the

context relating to the construction of a statute in Novartis AG

v. Union of India21, State of M.P. v. Dadabhoy’s New Chirim-

iri Ponri Hill Colliery Co. (P) Ltd.22, Union of India v. Steel

Stock Holders’ Syndicate23, K.P. Varghese (supra) and

Surana Steels (P) Ltd. v. CIT24.

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

said 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 passing of

the legislation can be look into to ascertain the intention of the

legislature.

38. Thus observed, the reference to Constituent Assembly

debates, reports of the Parliamentary Standing Committee and

the speeches made in the Parliament or for that matter, debates

held in Parliament are only meant for understanding the

Constitution or the legislation, as the case may be. It is quite

different than to place reliance upon Parliamentary Standing

Committee report as a piece of evidence to establish a fact. We

have been commended to the authority by the learned counsel

21 (2013) 6 SCC 1 22 (1972) 1 SCC 298 23 (1976) 3 SCC 108 24 (1999) 4 SCC 306 23

appearing for the Union of India reported in R. v. Secretary of

State for Trade and others ex parte Anderson Strathclyde

plc25:-

“In my judgment there is no distinction between using a report in Hansard for the purpose of supporting a cause of action arising out of something which occurred out- side the House, and using a report for the purpose of supporting a ground for relief in proceedings for judicial review in respect of something which occurred outside the House. In both cases the court would have to do more than take note of the fact that a certain statement was made in the House on a certain date. It would have to consider the statement or statements with a view to determining what was the true meaning of them, and what were the proper inferences to be drawn from them. This, in my judgment, would be contrary to art 9 of the Bill of Rights. It would be doing what Blackstone said was not to be done, namely to examine, discuss and ad- judge on a matter which was being considered in Parlia- ment. Moreover, it would be an invasion by the court of the right of every member of Parliament to free speech in the House with the possible adverse effects referred to by Browne J.”

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

in State Bank of India through General Manager v. National

Housing Bank and others26 would be apposite. The Court was

dealing with an appeal preferred under Section 10 of the Special

Court (Trial of Offences Relating to Transactions in Securities)

Act 27 of 1992. In the said case, this Court noticed that the

learned Judge of the Special Court had extensively relied upon

25 [1983] 2 All ER 233 26 (2013) 16 SCC 538 24

the Second Interim of the Janakiraman Committee 27 on the

ground that the same was filed by the first defendant. The Court

in that context held:-

“50. It is well settled by a long line of judicial authority that the findings of even a statutory commission ap- pointed under the Commissions of Inquiry Act, 1952 are not enforceable proprio vigore as held in Ram Krishna Dalmia v. Justice S.R. Tendolkar28 and the statements made before such Commission are expressly made inad- missible in any subsequent proceedings civil or crimi- nal. The leading judicial pronouncements on that ques- tion were succinctly analysed by this Court in T.T. Antony v. State of Kerala29, SCC paras 29-34. Para 34 of the judgment inter alia reads:

“34. … In our view, the courts, civil or criminal, are not bound by the report or findings of the Commission of Inquiry as they have to arrive at their own decision on the evidence placed before them in accordance with law.”

51. Therefore, courts are not bound by the conclusions and findings rendered by such commissions. The state-

ments made before such commission cannot be used as evidence before any civil or criminal court. It should log- ically follow that even the conclusions based on such statements can also not be used as evidence in any court. The Janakiraman Committee is not even a statu- tory body authorised to collect evidence in the legal sense. It is a body set up by the Governor of Reserve Bank of India obviously in exercise of its administrative functions,

“… the Governor, RBI set up a committee on 30-4-1992 to investigate into the possible irregu- larities in funds management by commercial 27 Committee set up by RBI on 30.04.1992 which submitted six reports and the Final Report was on 07.05.1993 28 AIR 1958 SC 538 29 (2001) 6 SCC 181 25

banks and financial institutions, and in particular, in relation to their dealings in government securi- ties, public sector bonds and similar instruments. The Committee was required to investigate various aspects of the transactions of SBI and other com- mercial banks as well as financial institutions in this regard.”30

And again:-

“53. The report of such a committee in our view can at best be the opinion of the Committee based on its own examination of the records of the various banks (includ- ing the plaintiff and the first defendant) and the state- ments recorded (by the Committee) of the various per- sons examined by the Committee. In our considered view the report of the Janakiraman Committee is not ev- idence within the meaning of Evidence Act which the Special Court is bound to follow.”

40. We have referred to the said authority as this Court has

thought it appropriate to state following the precedents that the

report of a statutory committee cannot be received as evidence of

facts stated in the report.

41. Having dwelled upon this aspect, we may refer to certain

relevant Articles of the Constitution. Article 105 deals with with

powers, privileges, etc. of the Houses of Parliament and of the

members and committees thereof. To have a complete picture,

the said Article is reproduced in entirety:-

“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 to the rules and standing orders

30 See the Janakiraman Committee’s first interim report, May 1992, p. 1. 26

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, 1[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.”

42. What is necessary to understand from Article 105(2) is that

no member of the Parliament can be made liable for any

proceeding in any court because of what he has stated in a

committee. The Parliamentary Standing Committee is a

committee constituted under the Rules and what a member

speaks over there is absolutely within the domain of that

committee. Freedom of speech of a member of a Committee is

only guided subject to provisions of the Constitution and the 27

Rules and standing orders regulating the procedure of

Parliament. It is also seemly to note that Article 105(4)

categorically lays the postulate that clauses 1, 2 and 3 shall

apply to any committee of the Parliament.

43. Article 118 deals with rules of procedure. Clause 1 of the

said Article stipulates that each House of Parliament may make

rules for regulating, subject to the provisions of the Constitution,

its procedure and the conduct of its business. Thus, the said

Article empowers the Parliament to regulate its procedure apart

from what has been stated directly in the Constitution.

44. Article 121 provides restriction on discussion in Parliament.

The same is extracted below:-

“121. Restriction on discussion in Parliament.– (1) No discussion 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 except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided.”

45. The aforesaid Article makes it vivid that the Parliament shall

not discuss as regards the conduct of any Judge of the Supreme

Court or of a High Court in the discharge of his duties, except

upon a motion been presented before the President of India

praying for removal of the Judge as provided in the Constitution.

Thus, the discussion of the Parliament is restricted by a 28

constitutional provision.

46. Article 122 stipulates a restraint on courts to inquire into

proceedings of the Parliament. The said Article being absolutely

significant is reproduced below:-

“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.”

47. 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 the

Parliament or a member of the Parliamentary Standing 29

Committee who enjoys freedom of speech and expression within

the constitutional parameters and the rules or regulations

framed by the Parliament inside the Parliament or the Committee

is not to be adverted to by the court in a lis.

48. In this regard, it is appropriate to refer to the observations

made by the House of Lords in Hamilton v. Al Fayed31:-

“The Court of Appeal held, first, that apart from any question of parliamentary privilege the principle in Hunter’s case [1982] AC 529 had no application: a par- liamentary decision was not analogous to a decision of the court. Next, the Court of Appeal held that the pro- ceedings before the PCS, his report and its acceptance by the CSP were all “parliamentary proceedings” and therefore any attempt to investigate or challenge any of the procedures adopted constituted a breach of parlia- mentary privilege: they constituted a “questioning” of parliamentary procedures. They therefore held that the judge had been in error and had himself breached par- liamentary procedure by criticizing the procedures adopted by the PCS. The conclusion of the Court of Ap- peal on these two points met the concerns of the Solici- tor General. The Court of Appeal were clearly correct on these points and they were not further challenged on appeal to your Lordship’s House….

Presumably because of the way the case was presented to them, the Court of Appeal never considered the rele- vant question (viz whether there should be a fair trial stay) raised by question 2 of the summons. The only way in which Mr Al Fayed could justify his defamatory statements was by detailed challenge to Mr Hamilton’s conduct in Parliament, which challenge would be pre-

cluded by parliamentary privilege. That being so it would in my judgment have been impossible for Mr Al Fayed to have had a fair trial in this action if he had been precluded from challenging the evidence produced 31 [2001] 1 A.C. 395 30

to the parliamentary committees on behalf of Mr. Hamil- ton. Had it not been for section 13, the court should, in my judgment, have stayed the libel action brought by Mr. Hamilton by making an order under paragraph 2 of the summons. However, section 13 does apply to this case and provides a complete answer to it.”

49. We will be failing in our duty if we do not note another

submission of the learned Solicitor General that for issuance of a

writ of mandamus, it is primary to establish that one has a right

and, in the case at hand, an effort has been made to rely on the

Parliamentary Standing Committee's report to create a right

which is legally not permissible.

50. 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 otherside, for it

cannot be accepted without affording an opportunity of being 31

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.

51. As advised at present, 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. 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. We frame the following

questions for the purpose of reference to the Constitution

Bench:-

(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?

32 (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?

52. Let the papers be placed before Hon'ble the Chief Justice of

India for constitution of appropriate Bench.

..................................J. [Dipak Misra]

..................................J. [Rohinton Fali Nariman] New Delhi April 05, 2017.

33

ITEM NO.302 COURT NO.2 SECTION PIL(W)

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Writ Petition (Civil) No.558/2012

KALPANA MEHTA & ORS. Petitioner(s)

VERSUS

U.O.I. & ORS. Respondent(s)

(With appln. (s) for permission to file synopsis and list of dates, directions, exemption from filing O.T., permission to file additional documents, permission to file additional documents, permission to file addl. documents and office report)

WITH W.P.(C) No.921/2013 (With directions and office report)

Date : 05/04/2017 This petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE DIPAK MISRA HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN

For Petitioner(s) Mr. Colin Gonsalves, Sr. Adv.

Mr. Kabir Ali Zia Choudhary, Adv.

Ms. Jyoti Mendiratta, AOR

WP 921/13 Mr. Anand Grover, Sr. Adv. Mr. Purushottam Sharma Tripathi, AOR Mr. Kumesh Kumar Singh, Adv. Mr. Lorraine M., Adv.

For Respondent(s) Ms. Krishna Sarma, Adv. Ms. Manisha Singh, Adv. Mr. Navnit Kumar, Adv. Ms. Vartika Walia, Adv. Mr. Jaya Krishnan Kr., Adv. Mr. Riku Sarma, Adv. Ms. Barndi Das, Adv. M/s Corporate Law Group

Ms. Sushma Suri, AOR

Mr. Abhishek Naik, Adv. for M/s. Parekh & Co. 34

Mr. Jasbir Bidhuri, Adv. Ms. N. Annapoorani, AOR

Mr. Gourab Banerji, Sr. Adv. Mr. R.N. Karanjawala, Adv. Ms. Nandini Gore, Adv. Mr. Abhishek Roy, Adv,. Ms. Tahira Karanjawala, Adv. Ms. Natasha Sehrawat, Adv. Ms. Trishala Kulkarni, Adv. Mrs. Manik Karanjawala, Adv. Ms. Vaidehi Misra, Adv. Mr. Sahil Tagotra, Adv. M/s. Karanjawala & Co.

Ms. Hemantika Wahi, AOR Ms. Jesal Wahi, Adv. Ms. Puja Singh, Adv. Ms. Mamta Singh, Adv.

Mr. S. Udaya Kumar Sagar, AOR

Mr. Guntur Prabhakar, AOR

Ms. C. K. Sucharita, AOR

Mr. A.K. Panda, Sr. Adv. Ms. Rekha Pandey, Adv. Ms. Sunita Sharma, Adv. Mr. Ajay Sharma, Adv. Mr. G.S. Makker, Adv. Mr. D. S. Mahra, AOR

Mr. S. Udaya Kumar Sagar, Adv. Mr. Mrityunjai Singh, Adv.

UPON hearing the counsel the Court made the following O R D E R

In terms of the signed reportable judgment, let the papers be placed before the Hon'ble the Chief Justice of India for constitution of appropriate Bench.

(Chetan Kumar) (Madhu Narula) Court Master Court Master

(Signed reportable judment is placed on the file)