Kalpana Mehta and Others vs Union of India and Others

Constitution of India – Arts. 32 and 136 – Report of Parliamentary Standing Committee – Reliance upon – Parliamentary proceeding and its privilege – Scope of judicial review – Irregularities in the clinical trials for Human Papilloma Virus (HPV) vaccine – Justifiability of action taken by Drugs Controller General of India and Indian Council of Medical Research pertaining to approval of vaccine – On facts, HPV vaccine manufactured by pharmaceutical company, for preventing cervical cancer in women – Experimentation of the vaccine as an immunisation by the Government of Gujarat and Andhra Pradesh on young adolescent girls – Untimely death of the girls – Irregularities and health risk of HPV vaccine pointed out by health activist – Appointment of Parliamentary Standing Committee to enquire into the alleged irregularities – 72nd and 81st Standing Committee Report indicating various shortcomings and lapses of the Government Departments, ICMR, NGO and Pharmaceutical Companies – Thereafter filing of writ petition by activist challenging irregularities in the clinical trials – Reliance placed on the report of the Parliamentary Standing Committee by petitioners – Case of Union of India that the Reports could neither be looked into nor relied by this Court – Questions framed by two-Judge Bench for reference to Constitution Benchwhether in a litigation filed before this Court either u/Arts. 32 or 136, the Court can refer to and place reliance upon the report of the Parliamentary Standing Committee; and whether such a Report can be looked at for the purpose of reference – Held: Per curiam: In a litigation filed either u/Arts. 32 or 136, judicial notice can be taken of the Parliamentary Standing Committee report, however, the report cannot be impinged or challenged in a court of law. Arts. 32, 136 and 105 – Report of Parliamentary Standing Committee indicating irregularities in the clinical trials for Human Papilloma Virus (HPV) vaccine – Reference to and reliance upon by this Court – Held: Per Dipak Misra, CJI:(For himself and Khanwilkar, J.): Parliamentary Standing Committee report can be taken aid of for the interpretation of a statutory provision – Judicial notice can be taken of the Parliamentary Standing Committee report u/s. 57(4) of the Evidence Act and it is admissible u/s 74 of the Act – In a litigation u/Art. 32 or Art. 136, this Court can take on record the report of the Parliamentary Standing Committee, however, it cannot be impinged or challenged in a court of law – 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 – Report being in the public domain can invite fair comments and criticism from the citizens – Per Chandrachud, J. (for himself and Sikri, J.): Reliance upon the report of Parliamentary Standing Committee can be placed in proceedings u/Art. 32 or Art. 136 – On publication of the report, its reference in the course of judicial proceedings would not constitute a breach of parliamentary privilege – Validity of the report 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 – When 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 – (Per Ashok Bhushan, J): Reports submitted by Members of Parliament fully covered by protection extended u/Art. 105 and they cannot be held liable for anything said by them in Parliament or in any committee – Publication of the reports not being only permitted, but also are being encouraged by the Parliament and on publication it can be used by the public in general – Judicial notice can be taken of the course of proceedings of Parliament and the Legislature u/s. 57(4) – Parliamentary Committee Reports can be relied on for noticing an event or history however, no party can be allowed to ‘question’ or ‘impeach’ report of Parliamentary Committee – Admissibility of a Parliamentary Committee Report in evidence does not mean that facts stated in the Report stand proved – When issues of facts come before the Court for adjudication, the Court is to decide the issues on the basis of evidence and materials brought before it. Arts. 105, 118, 194, 121, 122 and 212 – Parliamentary privileges – Powers, privileges, etc of the Houses of Parliament and of the members and Committees thereof – Publication of the parliamentary proceedings – Explained.

Parliamentary proceeding and parliamentary privilege – Scope of judicial review – Explained.

Parliamentary Standing Committees – Role, Relevance and significance – Explained.

Parliamentary Standing Committees – Parliamentary Committees in England, United States of America, Canada, Australia – Role and responsibility – Stated.

Foundational fundamentals – Supremacy of the Constitution, Constitutional limitations, doctrine of separation of powers, power of judicial review, interpretation of Constitution, interpretation of fundamental rights and interpretation of other constitutional provisions – Analysis of.

Evidence Act, 1872 – s. 57(4) – Parliamentary proceedings – Applicability of the Act – Facts of which Court must take judicial notice – Held: Under s. 57(4), the course of proceeding of Parliament and the Legislature, established under any law are facts of which judicial notice shall be taken by the court – Parliamentary standing committee report can be judicially taken note of as such report comes within the ambit of s. 57(7) – Parliamentary standing committee report being in the public domain is a public document, thus, it is admissible u/s. 74 of the Act.

Answering the Reference, the Court

HELD: Per Dipak Misra, CJI:(For himself and Khanwilkar, J.)

1. 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. 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. In a litigation filed either under Article 32 or Article

136 of the Constitution, 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. 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. The Parliamentary Standing Committee report being in the public domain can invite fair comments 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. [Para 138][121-C-G] Supremacy of the Constitution

2. 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 derive their authority and jurisdiction form the Constitution. It is in the exercise of law-making power by the Constituent Assembly that Constitution has been controlled. 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. 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. [Paras 13, 15, 16][63-B-C; 64-D-E]

Kalpana Mehta and others v. Union of India and others (2017) 7 SCC 307; Kesavananda Bharati v State of Kerala [1973] Suppl. SCR 1 : (1973) 4 SCC 225; State of Rajasthan and others v. Union of India and others [1978] 1 SCR 1 : (1977) 3 SCC 592; I R Coelho v. State of Tamil Nadu [2007] 1 SCR 706 : (2007) 2 SCC 1 – referred to.

Constitutional limitations upon the legislature

3. 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. 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 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, the terminology-constitutional sovereignty is used. 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. [Paras 17, 20][64-F; 66-EF] State of West Bengal v. Anwar Ali Sarkar [1952] SCR

284 : AIR 1952 SC 75; K.C. Gajapati Narayan Deo v. State of Orissa [1954] SCR 1 : AIR 1953 SC 375; Deep Chand v. State of Uttar Pradesh and others [1959] Supp.

2 SCR 8 : AIR 1959 SC 648; Binoy Viswam v. Union of India and others (2017) 7 SCC 59 – referred to.

Queen v. Burah (1878) LR 5 I.A. 178; Attorney-General for Ontario v. Attorney-General for Canada (1912) AC

571 – referred to.

“Constitutional Limitation” by Cooley (Eighth Edn. Volume I) – referred to.

Doctrine of separation of powers

4. The concept of constitutional limitation is a facet of the doctrine of separation of powers. There can really be no straitjacket 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. [Para 27][70B-D]

Smt. Indira Nehru Gandhi v. Shri Raj Narain and another (1975) Supp. SCC 1 : [1976] SCR 347; Kesavananda Bharati v. State of Kerala [1973] Suppl. SCR 1 : (1973) 4 SCC 225; State of Himachal Pradesh v. A Parent of a Student of Medical College, Simla and others [1985] 3 SCR 676 : (1985) 3 SCC 169; State of Tamil Nadu v. State of Kerala and another [2014]

12 SCR 875 : (2014) 12 SCC 696; Bhim Singh v. Union of India and others [2010] 6 SCR 218 : (2010) 5 SCC 538; Mansukhlal Vithaldas Chauhan v. State of Gujarat [1997] 3 Suppl. SCR 705 : (1997) 7 SCC 622; Federation of Railway Officers Association and others v. Union of India 2003 AIR 1344 : (2003) 4 SCC 289 : [2003] 2 SCR 1085; State of Maharashtra and others v. Raghunath Gajanan Waingankar 2004 AIR 4264 : [2004] 3 Suppl. SCR 365; Divisional Manager, Aravali Golf Club and another v. Chander Hass and

another [2007] 12 SCR 1084 : (2008) 1 SCC 683; Asif Hameed and others v. State of Jammu and Kashmir and others [1989] 3 SCR 19 : (1989) 2 Suppl. SCC 364; I R Coelho v. State of Tamil Nadu [2007] 1 SCR 706 : (2007) 2 SCC 1 – referred to.

Power of judicial review

5.1 Immense responsibility is laid 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. 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. [Paras 28-29][71-C-E]

5.2 When judicial review is discussed, it is also necessary to be alive to the concept of judicial restraint. The duty of judicial 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. [Para 30][71-F-G]

Union of India and another v. Raghubir Singh (Dead) by LRs. Etc. [1989] 3 SCR 316 : (1989) 2 SCC 754; S.C. Chandra and others v. State of Jharkhand and others [2007] 9 SCR 130 : (2007) 8 SCC 279; Suresh Seth v. Commr., Indore Municipal Corpn. and others (2005) 13 SCC 287; Supreme Court Employees’ Welfare Association v. Union of India and another [1989]

3 SCR 488 : (1989) 4 SCC 187; Census Commissioner and others v. R. Krishnamurthy [2014] 11 SCR 463 : (2015) 2 SCC 796; Premium Granites and another v. State of T.N. and others [1994] 1 SCR 579 : (1994) 2 SCC 691; M.P. Oil Extraction and another v. State of M.P. and others [1997] 1 Suppl. SCR 671 : (1997) 7 SCC 592; State of Madhya Pradesh v. Narmada Bachao Andolan and another [2011] 6 SCR 443 : (2011) 7 SCC 639; State of Punjab and others v. Ram Lubhaya Bagga and others [1998] 1 SCR 1120 : (1998) 4 SCC

117 – referred to.

5.3 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. Constitutional Courts cannot sit in oblivion when fundamental rights of individuals are at stake. The 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 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. [Para 33][73-B-D] Virendra Singh and others v. The State of Uttar Pradesh 1954 AIR 447 : [1955] SCR 415 – referred to.

5.4 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 it is said 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. Such an approach applies with more zeal in case of Article 32 of the Constitution which has been described as “the very soul of the Constitution the very heart of it.” 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. [Paras 34-35][73F; 74-A-B] K.S. Srinivasan v. Union of India 1958 AIR 419 : [1958] SCR 1295 – referred to.

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

6. 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. 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. 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. 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 convey the message of the Constitution which is intrinsic to the Constitution. [Paras 3840][75-F-G; 76-B, G; 77-A]

S.R. Bommai and others v. Union of India and others [1994] 2 SCR 644 : (1994) 3 SCC 1; GVK Industries Limited and another v. Income Tax Officer and another [2011] 3 SCR 366 : (2011) 4 SCC 36; Union of India v. Naveen Jindal and another [2004] 1 SCR 1038 : (2004) 2 SCC 510; K.S. Puttaswamy and another v. Union of India and others (2017) 10 SCC 1; Supreme Court Advocates-on-Record Association and others v. Union of India [1993] 2 Suppl. SCR 659 : (1993) 4 SCC 441 – referred to.

Interpretation of fundamental rights:

7. 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. The perception changed when the Court focussed on the actual impairment caused by the law rather than the literal validity of the law. Constitution and, in particular, 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 fullest measure. [Para 41][77-B-C; 78-C-D]

A.K. Gopalan v. State of Madras AIR 1950 SC 27 : [1950] SCR 88; I R Coelho v State of Tamil Nadu [2007]

1 SCR 706 : (2007) 2 SCC 1; Rustom Cavasjee Cooper v. Union of India (1970) 1 SCC 248; Sakal Papers (P) Ltd. v. Union of India [1962] 3 SCR 842 : AIR 1962 SC 305; Sambhu Nath Sarkar v. State of West Bengal and others [1974] 1 SCR 1 : (1973) 1 SCC 856; Haradhan Saha v. The State of West Bengal and others [1975] 3 SCC 198 : [1975] 1 SCR 778; Khudiram Das v. State of West Bengal and others [1975] 2 SCR 832 : (1975) 2 SCC 81; Maneka Gandhi v. Union of India and another [1978] 1 SCC 248; M. Nagaraj and others v. Union of India and others [2006] 7 Suppl. SCR 336 : (2006) 8 SCC 212 – referred to.

Interpretation of other constitutional provisions

8. There has been deliberation upon the interpretation of other constitutional provisions that really do not touch the area of fundamental rights but are fundamental for constitutional governance and the duty of the Court is not to transgress the constitutional boundaries. The concern is not with the interpretation of such constitutional provisions which have impact on the fundamental rights of the citizens. The concern is 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 Arts 105 and 122. [Para 50][81-C-D]

B.R. Kapur v. State of T.N. and another [2001] 3 Suppl. SCR 191 : (2001) 7 SCC 231; Kesavananda Bharati v. State of Kerala [1973] Suppl. SCR 1 : (1973) 4 SCC 225; Minerva Mills Ltd. and others v. Union of India and others [1981] 1 SCR 206 : (1980) 3 SCC 625; Manoj Narula v. Union of India [2014] 9 SCR 965 : (2014) 9 SCC 1; Kuldip Nayar and others v. Union of India and others [2006] 5 Suppl. SCR 1 : (2006) 7 SCC 1; G. Narayanaswami v. G. Pannerselvam and others [1973] 1 SCR 172 : (1972) 3 SCC 717; Union of India v. Sankalchand Himatlal Sheth and another [1978] 1 SCR 423 : (1977) 4 SCC 193 – referred to.

Melbourne Corporation v. Commonwealth [1947] 74 CLR 31 (Aust); Australian Capital Television Pty. Limited and others and the State of New South Wales v. The Commonwealth of Australia and another [Political Advertising case] [1992] 177 CLR 106 (Aust); Massachusetts Bonding & Insurance Co. v. United States

352 U.S. 128 (1956); R.E. Megarry, ‘A Second Miscellany-at-Law’ (Stevens, London, 1973), p 152 – referred to.

A perspective on the role of Parliamentary Committees

9. The 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 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. 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. [Paras 58-59][84-E-H]

Entering the Committee System: State Committee Assignments, Ronald D. Hedlund, Political; Research Quarterly, Vol. 42, Issue 4, pp.597-625; Woodrow Wilson, “Congressional Government”, 1885, quoted in the JCOC Final Report, (Baltimore, the Johns Hopkins University Press, 1981) p.69; 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); “An Introduction to the Procedure of House of Commons”; Hansard, 3rd Series, Vol.235 (1877) p. 1478;”Growth of Committee System in the Central Legislature of India 1920-1947" – referred to.

Parliamentary Committees in India

10. The founding fathers of the Constitution perceived that a parliamentary system would respond effectively to the problems arising from our diversity as also to the myriad socioeconomic factors that the nation was faced with. With that obj ect ive, in the political system that is es tabl ished, prominence was given to the Parliament, the organ that directly represents the people and as such accountable to them. 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 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. Founded on English traditions, the Indian Parliament’s committee system has a vital role in the parliamentary democracy. [Paras 70, 73-74][89-BC; 90-F-H] Rules of Procedure and Conduct of Business in Lok Sabha

11. 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 governance. The committee system is designed to enhance the capabilities of Members of Parliament to shoulder greater responsibilities and broaden their horizons. [Para 76]

Parliamentary privilege under the Indian Constitution

12.1 Article 105 of the Constitution is relevant to understand the status of parliamentary Committee and the privileges it enjoys in the Indian content. Sub-article (2) of the Article 105 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 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. 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. The Parliament has been enabled by the Constitution to regulate its procedure apart from what has been stated directly in the Constitution. [Paras 86-87][96-G; 97-A, F-H; 98-A-B]

12.2 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 State”. Therefore, the interpretation of one of these articles would invariably apply to the other and vice versa.[Para 88][98C] U.P. Assembly case [Special Reference No. 1 of 1964] 1965 AIR 745 : [1965] SCR 413; Raja Ram Pal v. Hon’ble Speaker, Lok Sabha and others [2007] 1 SCR 317 : (2007) 3 SCC 184 – referred to.

Black’s Law Dictionary, 6th Ed., 1990, 9.1197; Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, (Lexis Nexis, 24thedn., 209;”– referred to.

Judicial review of parliamentary proceedings and its privilege

13. Articles 121 and 122 of the Constitution are extremely significant as they are really meant to state the restrictions imposed by the Constitution on both the institutions. 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); 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. [Paras 101, 102, 105][104-G; 108-D-F] Hamilton v. Al Fayed [2001] 1 AC 395; Wellesley v. Duke of Beaufort [1831] Eng R 809 : (1831) 2 Russ & My 639: (1831) 39 ER 538; New Brunswick

Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly) [1993] 1 SCR 319; Harvey v. New Brunswick (Attorney General) [1996] 2 SCR 876; Bradlaugh v. Gossett (1884) 12 QBD 271 (D) – referred to.

A History of English Law” by Sir William Holdsworth – referred to.

Reliance on parliamentary proceedings as external aids

14.1 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. [Para 112][111-F-G]

14.2 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. [Para 117][113-E-G]

R.S. Nayak v. A.R. Antulay[1984] 2 SCR 495 : (1984)

2 SCC 183; State of West Bengal v. Union of India 1963 AIR 1241 : [1964] SCR 371; K.P. Varghese v. Income Tax Officer, Ernakulam and another [1982]

1 SCR 629 : (1981) 4 SCC 173; Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte and others [1995] 6 Suppl. SCR 371 : (1996) 1 SCC 130; Novartis AG v. Union of India and others [2013] 13 SCR 148 : (2013) 6 SCC 1; State of Madhya Pradesh and another v. Dadabhoy’s New Chirimiri Ponri Hill Colliery Co. Pvt. Ltd. [1972] 2 SCR 609 : (1972) 1 SCC 298; Union of India v. Steel Stock Holders Syndicate, Poona [1976]

3 SCR 504 : (1976) 3 SCC 108; Surana Steels Pvt. Ltd. v. Dy. Commissioner of Income Tax and others [1999] 2 SCR 589 : (1999) 4 SCC 306; Ashoka Kumar Thakur v. Union of India and others [2008] 4 SCR 1 : (2008) 6 SCC 1; Additional Commissioner of Income Tax, Gujarat v. Surat Art Silk Cloth Manufacturers’ Association, Surat [1980] 2 SCR 77 : (1980) 2 SCC 31; Dharam Dutt and others v. Union of India and others [2003] 6 Suppl. SCR 151 : (2004) 1 SCC 712; Kuldip Nayar and others v. Union of India and others [2006] 5 Suppl. SCR 1 : (2006) 7 SCC 1 – referred to.

Pepper v. Hart [1992] UKHL 3 : [1993] AC 593 : [1992] 3 WLR 1032; R. v. Vasil [1981] 1 SCR 469,

121 D.L.R. (3d) 41; Re Anti-Inflation Act (Canada) [1976] 2 SCR 373, 68 D.L.R. (3d) 452 – referred to. Section 57(4) of the Evidence Act

15.1 Section 57 of the Evidence Act by employing the words “shall”, casts an obligation upon the Courts to take judicial notice of the said facts. Section 57, sub-section (4) casts an obligation on the Courts to take judicial notice of the course of proceedings of Parliament. Parliamentary standing committee report being in the public domain is a public document. Therefore, it is admissible under Section 74 of the Act and judicial notice can be taken of such a document as envisaged under Section 57(4) of the Act. The said document can be taken on record. 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 can advance a criticism in respect of what the report has stated. 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. [Paras 121, 123][115-BF] Sole Trustee Lok Shikshana Trust v. Commissioner of Income Tax, Mysore [1976] 1 SCR 461 : (1976) 1 SCC

254 – referred to.

15.2 In the instant case at hand, 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 accept, without contest, the opinion expressed in the parliamentary standing committee report and the facts stated therein; or 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. [Para 124][115-A-C; 116-A-C]

15.3 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 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. [Para 125][116-D-E]

15.4 Taking judicial notice of the Parliamentary Standing Committee report can only be to the extent that such a report exists. 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”, 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 adjudge the lis on the factual score of the report is to be negatived. [Para 127][116-G-H; 117-A]

Black’s Law Dictionary – referred to.

Reference to Parliamentary Standing Committee report

16.1 A party can always establish his case on the materials on record and the Court can independently adjudicate the controversy without allowing a challenge to Parliamentary Committee report. It is so thought 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, the concept of jurisprudential foundational principle is dealt with 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 decision of 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. The 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. [Para 135][119-B-E]

16.2 The Supreme Court ought not to shy away from its primary responsibility of interpreting the Constitution and other 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. Thus, 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 instant case, the constitutional obligation persuades to take the view that the Parliamentary Standing Committee Report or 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. [Para 137][120-F-G; 121-A-B]

Catering Cleaners of Southern Railway v. Union of India and another [1987] 2 SCR 164 : (1987) 1 SCC 700; State of Maharashtra v. Milind and others [2000]

5 Suppl. SCR 65 : (2001) 1 SCC 4; Federation of Railway Officers Association and others v. Union of India 2003 AIR 1344 : (2003) 4 SCC 289; Ms. Aruna Roy and Others v. Union of India and others [2002]

2 Suppl. SCR 266 : (2002) 7 SCC 368; M.C. Mehta v. Union of India and others (2017) 7 SCC 243; Lal Babu Priyadarshi v. Amritpal Singh [2015] SCR 1009 : (2015)

16 SCC 795; Gujarat Electricity Board v. Hind Mazdoor Sabha and others [1995] 1 Suppl. SCR 173 : (1995)

5 SCC 27; Modern Dental College and Research Centre and others v. State of Madhya Pradesh and others (2016) 7 SCC 353; Krishan Lal Gera v. State of Haryana and others [2011] 7 SCR 722 : (2011) 10 SCC 529 – distinguished.

Lakshmi Kant Pandey v. Union of India [1984] 2 SCR

795 : (1984) 2 SCC 244; Vishaka and others v. State of Rajasthan and others [1997] 3 Suppl. SCR 404 : (1997)

6 SCC 241; Prakash Singh and others v. Union of India and others [2006] 6 Suppl. SCR 473 : (2006) 8 SCC 1; Common Cause (A Regd. Society) v. Union of India 2018

(4) SCALE 1; Shakti Vahini v. Union of India and others 2018 (5) SCALE 51 – referred to.

Jajbhay v Cassim 1939 AD 537; Miranda v. Arizona

384 U.S. 436 (1966) – referred to.

Per Chandrachud, J. (Concurring): (for himself and Sikri,

J.)

HELD: 1. 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. 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. 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. 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. [Para 74][183-C-E]

The Constitution

2.1 The first major principle which emerges from Article

105 is that it expects, recognizes and protects the freedom of speech in Parliament. 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. [Para 14][129-E-G]

2.2 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 drafts persons. 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 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 Constitution. 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 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. [Para 15][129-G-H; 130-A-F]

2.3 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). [Para 16][131-C-D]

2.4 Article 119 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. 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. [Paras 17, 18][131G-H; 132-C-D]

2.5 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 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. [Para 20][132-F-H]

Parliamentary Standing Committees

3.1 Article 105 of the 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 committees. 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 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. [Paras 22, 23][134-D-E]

3.2 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. Rule 270 specifies the functions of the Standing Committees. 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. [Para 24][135-D-E; 136-C-D]

3.3 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 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. [Paras 24, 25][136-E-H; 137-A] Parliamentary Privilege

4. The fundamental difference between the systems of parliamentary privilege in India and UK 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. [Para 43][156-F-H; 157-A-C]

Re: Powers, Privileges and Immunities of State Legislatures Special Reference No. 1 of 1964 (1965) 1 SCR 413; P V Narasimha Rao v. State (CBI/SPE) [1998]

2 SCR 870 : (1998) 4 SCC 626; Raja Ram Pal v. Hon’ble Speaker, Lok Sabha [2007] 1 SCR 317 : (2007) 3 SCC 184; Amarinder Singh v. Special Committee, Punjab Vidhan Sabha [2010] 4 SCR 1105 : (2010) 6 SCC 113 – referred to.

Bradlaugh v. Gossett (1884) 12 Q.B.D. 271;Dingle v. Associated Newspapers Ltd. (1960) 2 Q.B. 405; Church of Scientology of California v. Johnson-Smith (1972) 1 Q.B. 522; Pepper (Inspector of Taxes) v. Hart (1992) 3 W.L.R. 1032; Richard William Prebble v. Television New Zealand (“Prebble”)(1994) 3 W.L.R. 970; Reg. v. Murphy (“Murphy”) (1986) 64 A.L.R. 498; Hamilton v. AI Fayed (“Hamilton”)(2001) 1 A.C. 395; Toussaint v. Attorney General of Saint Vincent and the Grenadines (“Toussaint”)(2007) 1 W.L.R. 2825; Regina (Bradley and Others) v. Secretary of State for Work and Pensions (Attorney General intervening) (2007) EWHC 242 (Admin); Office of Government Commerce v.

Information Commissioner (Attorney General

intervening) (2009) 3 W.L.R. 627; Wheeler v. The Office of the Prime Minister (2014) EWHC 3815 (Admin); Wilson v. First County Trust Ltd. (2004) 1 AC816; Owen Robert Jennings v. Roger Edward

Wyndham Buchanan (2004) UKPC 36; Prebble v.

Television New Zealand Ltd (1994) 3 AII ER 407, PC; R v Currie (1992) – referred to.

Separation of powers: a nuanced modern doctrine

5.1 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 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 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. [Para 58][170-G-H; 171-A-H; 172-A-B]

5.2 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. [Para 59][172-B-D]

Ram Jawaya Kapur v State of Punjab [1955] 2 SCR 225; Re: Powers, Privileges and Immunities of State Legislatures [1965] 1 SCR 413; Indira Nehru Gandhi v. Raj Narain [1976] SCR 347 : (1975) Suppl SCC 1; I R Coelho v State of Tamil Nadu [2007] 1 SCR 706 : (2007) 2 SCC 1; State of Tamil Nadu v. State of Kerala [2014] 12 SCR 875 : (2014) 12 SCC 696; I.N. Saksena v. State of MP [1976] 3 SCR 237 : (1976) 4 SCC 750; Indian Aluminium Co. v. State of Kerala [1996] 2 SCR

23 : (1996) 7 SCC 637; S.S Bola and Others v. B.D Sardana & Others [1997] 2 Suppl. SCR 507 : (1997) 8 SCC 522; Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality [1970] 1 SCR 388 : (1969) 2 SCC 283; Supreme Court Advocates-on-RecordAssociation and Ors. v. Union of India (2016) 5 SCC 1; State of UP v. Jeet S Bisht [2007] 7 SCR 705 : (2007)

6 SCC 586; Bhim Singh v. Union of India [2010] 6 SCR 218 : (2010) 5 SCC 538; Supreme Court

Advocates-on-Record Association v. Union of India (2016) 5 SCC 1; State of West Bengal v. Committee for Protection of Democratic Rights, West Bengal [2010] 2 SCR 979 : (2010) 3 SCC 571; Common Cause v. Union of India [2017] 3 SCR 291 : (2017) 7 SCC 158 – referred to.

Buckley v. Attorney General [1950] Irish Reports 67 – referred to.

The Separation Of Powers And Legislative Interference In Judicial Process, Constitutional Principles And Limitations by Peter A Gerangelos Hart Publishing, 2009; Public Lawby A Tomkins Oxford University Press, 2003; ‘Separating of Powers and Constitutional Government’ by E Barendt[1995] Public Law 599 at 599-60; Studies in Constitutional Law by C Munro, 2nd edn (London, Butterworths, 1999) at 304; Law Liberty and Justice, The Legal Foundations of British Constitutionalism by TRS Allan (Oxford, Clarendon Press, 1993) chs 3 and 8; Constitutional Justice, A Liberal Theory of the Rule of Law by TRS Allan (Oxford, Oxford University Press, 2001);‘A Loss of

Innocence?: Judicial Independence and the Separation of powers’ by R Stevens (1999) 19 Oxford Journal of Legal Studies 365;Constitutionalism And The

Separation Of Powers by MJC Vile Oxford University Press, 1967; ‘The Constitutional Separation of Powers’ by Aileen Kavanagh; The Constitutional Separation of Powers by David Dyzenhaus and Malcolm Thorburn (eds.); Philosophical Foundations of Constitutional Law Oxford University Press, 2016 p 221; What is Good about Legal Conventionalism?’ by D Kyritsis (2008) 14 Legal Theory 135, 154; Philosophical Foundations of Constitutional Law, p 236;‘The Rehabilitation of Separation of Powers in UK’ by K Malleson 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; ‘Authority for Officials’ by J Waldron, 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; ‘Institutional Approaches to Judicial Restraint’ by J King (2008) 28 Oxford Journal Of Legal Studies 409, 428; ‘The New Separation of Powers’- A Theory For The Modern State by Eoin Carolan’s (2009)(Oxford University Press, 2009) 253; The Problems with the Theory of Separation of Powers’ Eoin Carolan SSRN, (2011) 26 – referred to.

A functional relationship:

6.1 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. [Para 60][172-F-H; 173-A]

6.2 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 letter and spirit and to determine the efficacy of government policies in meeting the problems of the day. [Para 61][173-B-C]

6.3 The contents of the report of a parliamentary committee may have a bearing on diverse perspectives. The report is elucidated 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. The report of a parliamentary committee may contain a statement of position by government on matters of policy; the report may allude to statements made by persons who have deposed before the Committee; the report may contain inferences of fact including on the performance of government in implementing policies and legislation; the report may contain findings of misdemeanor implicating a breach of duty by public officials or private individuals or an evasion of law; or 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. [Para 62][173-C-G]

6.4 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 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. [Para 63][173-G-H; 174-A]

Principles of Statutory Interpretation by Justice G P Singh 14th edn.p 253 – referred to.

6.5 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.[Para 64][174D-E]

6.6 Committees of Parliament attached to ministries/departments of the government perform the function of holding government accountable to 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 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. [Para 66][175C-H; 176-A-D]

6.7 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 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. [Para 67][176-D-G]

Jyoti Harshad Mehta v The Custodian [2009] 12 SCR 1229 : (2009) 10 SCC 564; The Sole Trustee, Lok Shikshana Trust v The Commissioner of Income Tax, Mysore [1976] 1 SCR 461 : (1976) 1 SCC 254; Onkar Nath v The Delhi Administration [1977] 2 SCR 991 : (1977) 2 SCC 611; Baburao Alias P B Samant v Union of India [1988] SCR 431: (1988) Suppl. SCC 401 – referred to.

6.8 It has been held by this Court 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 of the Evidence Act, 1872. [Para 68][179-D-E]

Conclusion

7.1 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. Constitutional vision is about achieving a social transformation which the Constitution seeks to achieve is by placing the individual at the forefront of its endeavours. 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 issues which have arisen before the Court in the present reference, it is well to remind that since the Constitution is about transformation and its vision is about empowerment, 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. The country no longer lives in a political culture based on the subordination of individuals to the authority of the State. The 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. [Para 70][179-G; 180-A-F] ‘The Strange Alchemy of Life and Law’ by Justice Albie Sachs Oxford University Press 2009 pp 32-33 – referred to.

7.2 Once the fulfilment of individual rights and human freedoms are placed at the forefront of constitutional discourse, the resolution of the instant 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-Parliamentary Committee, throws light on the nature of the injustice or its causes and effects, constitutional theory which has to aid justice cannot lead 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 totalitarian excesses of power. They have no place in a democracy. Placing reliance on the report of the 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. [Para 73][181-F-H; 182-A-C]

7.3 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 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. [Para 74][182-D-H; 183-A-B]

Per Ashok Bhushan, J (Concurring):.

HELD: 1. Reference is answered by holding that:

(i) According to sub-clause (2) of Article 105 of the Constitution of India no Member of Parliament can be held liable for anything said by him in Parliament or in any committee. The reports submitted by Members of Parliament is also fully covered by protection extended under sub-clause (2) of Article 105 of the Constitution of India.

(ii) The publication of the reports not being only permitted, but also are being encouraged by the Parliament. The general public are keenly interested in knowing about the parliamentary proceedings including parliamentary reports which are steps towards the governance of the country. The right to know about the reports only arises when they have been published for use of the public in general.

(iii) Section 57(4) of the Evidence Act, 1872 makes it clear that the course of proceedings of Parliament and the Legislature, established under any law are facts of which judicial notice shall be taken by the Court.

(iv) Parliament has already adopted a report of “privilege committee”, that for those documents which are public documents within the meaning of Evidence Act, there is no requirement of any permission of Speaker of Lok Sabha for producing such documents as evidence in Court.

(v) That mere fact that document is admissible in evidence whether a public or private document does not lead to draw any presumption that the contents of the documents are also true and correct.

(vi) When a party relies on any fact stated in the Parliamentary Committee Reports the matter of noticing an event or history no exception can be taken on such reliance of the report. However, no party can be allowed to ‘question’ or ‘impeach’ report of Parliamentary Committee. The Parliamentary privilege, that it shall not be impeached or questioned outside the Parliament shall equally apply both to a party who files claim in the court and other who objects to it. Any observation in the report or inference of the Committee cannot be held to be binding between the parties. The parties are at liberty to lead evidence independently to prove their stand in a court of law.

(vii) Both the Parties have not disputed that Parliamentary Reports can be used for the purposes of legislative history of a Statute as well as for considering the statement made by a minister. When there is no breach of privilege in considering the Parliamentary materials and reports of the Committee by the Court for the above two purposes, there is no valid reason for not accepting the submission of the petitioner that Courts are not debarred from accepting the Parliamentary materials and reports, on record, before it, provided the Court does not proceed to permit the parties to question and impeach the reports.

(viii) The Constitution does not envisage supremacy of any of the three organs of the State. But, functioning of all the three organs is controlled by the Constitution. Wherever, interaction and deliberations among the three organs have been envisaged, a delicate balance and mutual respect are contemplated. All the three organs have to strive to achieve the constitutional goal set out for ‘We the People’. Mutual harmony and respect have to be maintained by all the three organs to serve the Constitution under which we all live.

(ix) Fair comments on report of the Parliamentary Committee are fully protected under the rights guaranteed under Article 19(1)(a). However, the comments when turns into personal attack on the individual member of Parliament or House or made in vulgar or abusive language tarnishing the image of member or House, the said comments amount to contempt of the House and breach of privilege.

(x) The function of adjudicating rights of the parties has been entrusted to the constituted courts as per Constitutional Scheme, which adjudication has to be made after observing the procedural safeguards which include right to be heard and right to produce evidence. Parliament, however, is not vested with any adjudicatory jurisdiction which belong to judicature under the Constitutional scheme.

(xi) Admissibility of a Parliamentary Committee Report in evidence does not mean that facts stated in the Report stand proved. When issues of facts come before a Court of law for adjudication, the Court is to decide the issues on the basis of evidence and materials brought before it. [Para 152][252-A-H; 253-A-H; 254-A]

Parliamentary Privileges:

2. The Constitution of India by Article 105 and Article 194 gives constitutional recognition of parliamentary privileges. Article 105 deals with ‘powers, privileges and immunities of Parliament and its Members whereas Article 194 deals with the powers, privileges and immunities of State Legislatures and their Members. Both the provisions are identical. Sub-clause (1) of Article 105 gives recognition to ‘freedom of speech’ in Parliament. Sub-clause (2) of Article 105 enumerates the privileges and immunities of Members of Parliament. There is absolute protection to a Member of Parliament against any proceeding in any court, in respect of anything said or vote given by him in Parliament or any committee thereof. In the present case, the parliamentary privileges with regard to Parliamentary Standing Committee’s Report is to be examined. According to sub-clause (2) of Article 105 of Constitution of India no Member of Parliament can be held liable for anything said by him in Parliament or in any committee. The reports submitted by Members of Parliament is also fully covered by protection extended under sub-clause (2) of Article 105 of the Constitution of India. Present is not a case of any proceeding against any Member of the Parliament for anything which has been said in the Parliament Committee’s Report. Sub-clause (3) of Article 105 of the Constitution of India begins with the words ‘in other respects’. The words ‘in other respects’ clearly refer to powers, privileges and immunities which are not mentioned and referred to in sub-clauses (1) and (2) of Article 105. Sub-clause (3) of Article

105 makes applicable the same powers, privileges and immunities for Indian Parliament which were enjoyed by the House of Commons at the time of enforcement of the Constitution of India. [Para 28-29, 31, 32, 34][194-C-D; 195-E-H; 196-A]

P. V. Narsimha Rao v. State (CBI/SPE), (1998) 4 SCC

626 : [1998] 2 SCR 870 – referred to.

‘Parliamentary Practice’ by Erskine May, Twentyfourth Edn; Halsbury’s Laws of England, Fifth Edn Vol.

78 – referred to.

Privileges of House of Commons

3. The privileges of Indian Parliament are the privileges which were enjoyed by the British House of Commons. From the parliamentary privileges as enumerated, it is clear that there is a complete immunity to the Members of Parliament from any proceeding for anything said in any committee of the Parliament. Present is not a case where any proceedings are contemplated against any Member of Parliament for anything which has been said in a report of a Committee, involving a breach of any privilege under sub-clause (2) of Article 105 of the Constitution of India, but whether, there is any breach of privileges of Parliament in accepting, referring and relying on a Parliamentary Committee Report by this Court. [Para 39, 40][200-E-F] Special Reference No.1 of 1964 (UP Assembly Case) AIR 1965 SC 745 : 1965 AIR 745 : [1965] SCR 413 – referred to.

‘Parliamentary Practice’ by Erskine May Twentyfourth Edn; Halsbury’s Laws of England, Fifth Edn Vol. 78; ‘Practice & Procedure of Parliament’ by M. N. Kaul and S. L. Shakdher, Seventh Edn– referred to.

The Role of Parliamentary Committee:

4. Present is a case where Parliamentary Standing Committee which has submitted the report is the Parliamentary Standing Committee on Health and Family Welfare. The reports submitted by the Departmental Parliamentary Standing Committees are reports of matters entrusted to it by Parliament, by the Speaker. Parliament to which Council of Ministers are responsible, supervises the various works done by different Departments of the Government. Apart from the supervision, the committees also make recommendations and issue directions. Directions and recommendations are to be implemented by different Government Departments and action taken reports are submitted before the Parliament to be considered by Departmental Standing Committees. The functions of the committees thus, play an important role in functioning of the entire Government which is directly related to the welfare of the people of the country. [Para 49, 50][203-E-H; 204-A-B] ‘Constitutional History of England’ by F. W. Maitland; ‘Parliamentary Procedure,’ by Dr. Subhash C. Kashyap Second Edn; ‘Practice & Procedure of Parliament’ by M. N. Kaul and S. L. Shakdher Seventh Edn– referred to.

Publication of Parliamentary Reports

5. The rules framed under Article 118 of the Constitution thus clearly permit the publication of parliamentary proceedings. Apart from publication of the proceedings of the Parliament, including the reports of the committees, now, they are also permitted to be broadcast on electronic media. The publication of the reports not being only permitted, but also are being encouraged by the Parliament. The general public are keenly interested in knowing about the parliamentary proceedings including parliamentary reports which are steps towards the governance of the country. As per rules framed under Article 118, both for Lok Sabha and Rajya Sabha, the Parliamentary Standing Committees are to follow the procedure after constitution of the committee and till the reports are submitted to the Speaker. During the intervening period, when the preparation of reports is in process and it is not yet submitted to the Speaker and published, there is no right to know the outcome of the reports. It is submitted that the right to know about the reports only arises when they have been published for use of the public in general. Thus, no exception can be taken in the petitioners obtaining 72nd and 81st Reports of Parliamentary Standing Committee. [Paras 55, 56][206-H; 207-A-D]

Rules and procedures regarding permission for giving evidence in courts regarding proceedings in parliament

6. The papers and proceedings of Parliament have been permitted to be given in evidence in Courts of law by the Parliament. After the enforcement of Right of Information Act, 2005, on the basis of a report submitted by the Committee of Privileges, the procedure for making available documents relating to the proceedings of the House has been modified. as a matter of fact the Parliamentary materials including reports and other documents have been sent from time to time by the permission of the Parliament itself to be given as evidence in Courts of law.[Paras 57, 58, 60][207-E; 208-E; 210-H]

‘Practice & Procedure of Parliament’ by M. N. Kaul and S. L. Shakdher, Seventh Edn; Raj Sabha at Work, Third Edn (2017) p 25 – referred to.

Applicability of the Evidence Act, 1872, in the context of parliamentary proceedings:

7.1 A plain reading of Section 57 sub-section (4) makes it clear that the course of proceeding of Parliament and the Legislature, established under any law are facts of which judicial notice shall be taken by the Court. Art. 118 (1) read with Rules framed for conduct of business in Lok Sabha and Rajya Sabha makes it clear that the proceedings of Parliamentary Standing Committee including its Report are proceedings which are covered by the expression “course of proceeding of Parliament”. It cannot be said that that Parliamentary Standing Committee Reports are not covered by expression “course of proceeding of Parliament”, hence no benefit can be taken of this provision. Further, the effect of Section 57(4) in no manner is diminished by the fact that amendments were made in Section 57(4) by the Presidential Adaptation Order. [Paras 62-64, 67-68][211-G-H; 212-C, F]

7.2 According to Section 74 documents forming the acts, or records of the acts of Legislature of any part of India is a public document. Parliament has already adopted report of privilege committee that for those documents which are public documents within the meaning of Evidence Act, there is no requirement of any permission of Speaker of Lok Sabha for producing such documents as evidence in Court. However, mere fact that a document is admissible in evidence whether a public or private document does not lead to draw any presumption that the contents of the documents also are true and correct. [Para 69][213-C-D] Right Honourable Gerald Lord Strickland v. Carmelo Mifsud Bonnici, AIR 1935 PC 34; Standard Chartered Bank v. A.B.F.S.L & Ors. 2001 (4) BOM.LR 520 – referred to.

Nature And Extent of Parliamentary Privileges Regarding Reports of Committees of British Parliament

8.1 There is no doubt that reports of the Standing Committee of the Parliament are also Parliamentary proceedings. Participation of members of Parliament in normal course is usually by a speech but their participation in Parliamentary proceedings is not limited to speaking only. Participation of members of the Parliament is also by various other recognised forms such as voting, giving notice of a motion, presenting a petition or submitting a report of a Committee, the modern forms of expression by which the wish and will of Parliamentarians is expressed. The report submitted by Standing Committee of Parliament is also another form of expression. Thus, the Parliamentary privileges which are contained in Sub-clause (2) of Article 105 to individual Parliamentary member are also extended by virtue of Sub-clause (3) of Article 105 to the Parliamentary Committee Reports. The Parliamentary privileges contained in Article IX of Bill of Rights thus also protect the Parliamentary Standing Committee Reports. [Para 78][217-C-E] Parliamentary Practice by Erskine May, 24th edn. – referred to.

8.2 It is now well settled that proceedings undertaken in the Parliament including a report of the Standing Committee cannot be challenged before any Court. The word ‘challenge’ includes both ‘impeaching’ and ‘questioning’ the Parliamentary Committee Reports. [Para 83][220-B]

8.3 All references to Parliamentary proceedings and materials do not amount to breach of privilege to invite contempt of Parliament. When a party relies on any fact stated in the report as the matter of noticing an event or history no exception can be taken on reliance on such report. However, no party can be allowed to ‘question’ or ‘impeach’ report of Parliamentary Committee. The Parliamentary privilege that it shall not be impeached or questioned outside the Parliament shall equally apply both to a party who files claim in the court and other who objects to it. Both parties cannot impeach or question the report. In so far as the question of unfair disadvantage is concerned, both the parties are free to establish their claim or objection by leading evidence in the court and by bringing materials to prove their point. The court has the right to decide the ‘lis’ on the basis of the material and evidence brought by the parties. Any observation in the report or inference of the Committee cannot be held to be binding between the parties or prohibit either of the parties to lead evidence to prove their stand in court of law. Unfair disadvantage stands removed in the above manner. [Para 100][230-F-H; 231-A-B]

8.4 Parliamentary materials including report of a Standing Committee of a Parliament can very well be accepted in evidence by a Court. However, in view of Parliamentary privileges as enshrined in Article IX of Bill of Rights, the proceedings of Parliament can neither be questioned nor impeached in Court of Law. [Para 101][231-C-D]

8.5 The Rules of Parliament, procedure permit the production of Parliamentary materials in a Court of Law as evidence. The Parliamentary materials which are public documents can be submitted before the Court without taking any permission from Parliament. Thus, no exception can be taken in producing Reports of Parliament Committee before a Court of Law. The Evidence Act, 1874, which regulates the admission of evidence in Court of Law, also refers to proceedings in Parliament as a public document of which Court shall take Judicial notice. All these factors lead to conclude that there is no violation of any Parliamentary privilege in accepting Reports of Parliamentary Committee in Court. [Para 104][232-C-D]

8.6 When Parliamentary Reports cannot be questioned or impeached in Court of Law for what use they may be looked into by Court of Law. The authorities have laid down that for events which take place in Parliament, the facts which was stated before the Parliament or a Committee, are facts which can be looked into. Further when Parliamentary Reports can be looked into for few purposes as has been conceded, there is no justification in reading any prohibition for use of Reports for other purposes which are legal and lawful, without breach of any privilege. [Para 105][232-E-F]

Catering Cleaners of Southern Railway v. Union of India & Anr. (1987) 1 SCC 700 : [1987] 2 SCR 164; Gujarat Electricity Board v. Hind Mazdoor Sabha & Ors. (1995) 5 SCC 27 : [1995] 1 Suppl. SCR 173; State of Maharashtra v. Milind & Ors. (2001) 1 SCC 4 : [2000] 5 Suppl. SCR 65; Federation of Railway Officers Association v. Union of India (2003) 4 SCC 289 : [2003]

2 SCR 1085; Ms. Aruna Roy & Ors. v. Union of India & Ors. (2002) 7 SCC 368 : [2002] 2 Suppl. SCR 266; M.C. Mehta v. Union of India 2017 SCC Online 394; Kishan Lal Gera v. State of Haryana & Ors., (2011) 10 SCC 529 : [2011] 7 SCR 722; Modern Dental College and Research Centre v. State of Madhya Pradesh & Ors., (2016) 7 SCC 353; Lal Babu Priyadashi v. Amritpal Singh, (2015) 16 SCC 795 : [2015] SCR 1009 – referred to.

Stockdale v. Hansard 9 A.D. & E.2 p 1112; Bradlaugh v. Gossett (1884) 12 Q.B.D. 271; Dingle v Associated Newspapers Ltd. & Ors. (1960) 2 Q.B. 405; Church of Scientology of California v. Johnson-Smith (1972) 1 Q.B. 522; Pepper (Inspector of Taxes) v. Hart and related appeals 1993(1) All ER 42; Prebble v. Television New Zealand Ltd Privy Council (1994) 3 All ER 407; R. v. Murphy (1986) 5 NSWLR 18; Wilson v. First Country Trust Ltd. (2003) UKHL 40; Touissant v. Attorney General of St. Vincent (2007) UKPC 48; Office of Government of Commerce v. Information

Commissioner (2010) QB 98; Federation of Tour Operators v. HM Treasury (2007) EWHC 2062

(Admin); R v. Secretary of State for Trade and others, ex parte Anderson Strathclyde plc, 1983 (2) All ER 233 – referred to.

Exclusionary Rules How Far Applicable In The Indian Context

9. This Court has held that Parliamentary materials can be looked into, that too after considering the exclusionary rules which prohibited use of Parliamentary materials in courts. It is not disputed that Parliamentary reports and materials can be used for the purposes of taking into consideration legislative history for interpretation of statute as well as for considering the statement made by a Minister. When there is no breach of privilege in considering the Parliamentary materials and reports of the Committee by the Court for the above two purposes, there is no valid reason for not accepting the submission of the petitioner that courts are not debarred from accepting the Parliamentary materials and reports as evidence before it, provided the court does not proceed to permit the parties to question or impeach the reports. [Para 110][235-D-F] State of Mysore v. R.V. Bidap (1974) 3 SCC 337 : [1974]

1 SCR 589; R.S. Nayak v. A.R. Antulay (1984) 2 SCC

183 : [1984] 2 SCR 495; Jyoti Harshad Mehta (Mrs) and others v. Custodian and others (2009) 10 SCC 564 : [2009] 12 SCR 1229; State Bank of India v. National Housing Bank and others (2013) 16 SCC 538; Common Cause : A Registered Society v. Union of India (2017)

(7) SCC 158 : [2017] 3 SCR 291 – referred to.

Separation of powers and maintaining a delicate balance between the legislature, executive and judiciary:

10.1 There is no parliamentary privilege that Parliamentary Committee Reports or other parliamentary materials cannot be given in evidence in any court of law. By accepting Parliamentary Report as an evidence, there is no breach of any parliamentary privilege. It is also not out of place to mention that there is a vital difference between parliamentary sovereignty in England and Constitutional supremacy in this country. It is well settled that any law made by Parliament, which violates the fundamental rights guaranteed under Part III of the Constitution, can be set aside by this Court in exercise of Jurisdiction of judicial review which has been granted by the Constitution to this Court. Parliamentary sovereignty, as enjoyed by the United Kingdom is not a parallel example in reference to functioning of different organs in this country, as controlled by the Constitution of India. The parliamentary privilege, as guaranteed under Article 9 of Bill of Rights, (1688) that no proceeding of Parliament can be questioned and impeached thus has to be applied, subject to express constitutional provisions as contained in Constitution of India. [Para 122][240-C-E]

10.2 Although, there is no rigid separation of powers under the Constitution, but functions of all the three wings have been sufficiently differentiated and each has freedom to carry out its functions unhindered by any other wing of the State. However, in functioning of all the three organs, a delicate balance, mutual harmony and respect have to be maintained for true working of the Constitution. [Para 123][240-F-G]

Ram Jawaya Kapur v. State of Punjab AIR 1955 SC

549 : [1955] SCR 225; Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461 : [1973] Suppl. SCR 1 – referred to.

Article 121 & Article 122 of the Constitution of India:

11.1 Although, heading of Article 122 reads ‘Courts not to enquire into proceedings of the Parliament’ but substantive provision of Constitution, as contained in sub-clause (1) of Article

122 debars the Court from questioning the validity of any parliamentary proceeding on the ground of any alleged irregularity or procedure. The embargo on the Court to question the proceeding is thus limited on the aforesaid ground alone. There is no total prohibition from examining the validity of the proceeding if the proceedings are clearly in breach of fundamental rights or other constitutional provisions. On the strength of Article 122, it cannot be contended that Parliamentary Standing Committee Reports can neither be admitted in evidence in Court nor the said reports can be utilised for any purpose. [Paras 125, 128][241B-C; 242-D]

11.2 The Constitution of India empowers this Court in exercise of judicial review to annul the legislation of a Parliament if it breaches the fundamental rights, guaranteed under Part III of the Constitution. Thus, the privileges which are enjoyed by the Indian Legislature have to be considered in light of the provisions of the Indian Constitution. These are the clear exceptions to the parliamentary privileges, as applicable in House of Commons on the strength of Article IX of Bill of Rights, 1688. [Para 126][241-H; 242-A]

Comments on reports of parliamentary committee whether breach of privilege:

13.1 The freedom of speech and expression is one of the most cherished fundamental rights guaranteed and secured by the Constitution. [Para 129][242-E]

13.2 The freedom of speech and expression as guaranteed under Article 19(1)(a) is available to a citizen to express his opinion and comment which is also available with regard to court proceedings as well. In respect of Parliamentary proceedings, the said right is not stifled unless the comment amounts to reflection or personal attack on individual Member of Parliament or to the House in general. [Para 135][245-B]

13.3 The power to punish for contempt is a privilege available to Parliament which is defined as ‘keynote of Parliamentary Privileges’. Fair comments on report of the Parliamentary Committee are fully protected under the rights guaranteed under Article 19(1)(a). However, the comments when turns into personal attack on the individual member of Parliament or House or made in vulgar or abusive language tarnishing the image of member or House, the said comments amount to contempt of the House and breach of privilege. [Paras 141, 142][247-G-H; 248-A]

13.4 In the instant case, the respondents contended that in the event, they raise objections regarding Parliamentary Committee Report which has adversely commented on their role they shall be liable to be proceeded for committing contempt of the House, hence, this Court may neither permit the Parliamentary Committee Report to be taken in evidence nor allow the petitioners to rely on the report. No party is precluded in making fair comments on the Parliamentary Committee Report which comments remain within the bounds of a fair comments and does not transgress the limits prescribed for fair comments. The Parliamentary Committee Reports when published, the press are entitled to make fair comments. There is no reason prohibiting the parties who were referred to in the Parliamentary Committee Report to make such fair comments or criticism of the Report as permissible under law without breach of privilege. [Para 143][248B-D] Romesh Thappar v. The State of Madras [1950] SCR 594; Bennett Coleman & Co. and Ors. v. Union of India (UOI) and Ors. AIR 1973 SC 106 : [1973] 2 SCR 757; M.S.M. Sharma v. Sri Krishna Sinha and others AIR 1959 SC 395 : [1959] Suppl. SCR 806; Special Reference No.1 of 1964 [1965] 1 SCR 413 – referred to.

Wason v. Walter 1869 QB Vol. 4 p. 73; Adam v. Ward 1917 AC 309; Pepper v. Hart (House of Lords) 1993 AC 593; R v. Murphy 1986 (5) NSWLR 18, Hunt, J.; Burdett v. Abbot (1811) 104 ER 559, 561– referred to.

The Law, Privileges, Proceedings and Usage of Parliament by Erskine May (Lexis Nexis, 24 th edn., 2011) – referred to.

Adjudication in courts and Parliamentary Committee Report

14.1 ‘Adjudication’ is the power of Court to decide and pronounce a judgment and carry it into effect between the persons and parties who bring a cause before it for a decision. Both for civil and criminal cases people look forward to Courts for justice. To decide controversy between its subject had always been treated as a part of sovereign functions. Constitutional law developments emphasised separation of powers of Governmental functions for protecting rights and liberties of people. [Para 144][248-E-F]

14.2 In our Constitution although there is no strict separation of powers of the three branches that is Legislature, Judicature and Executive but Constitutional provisions entrust separate functions of each organ with clarity which makes it clear that our Constitution does not contemplate assumption by one organ function which belongs to another organ of the State. [Para 146][249-B]

14.3 Adjudication of rights of the people is a function not entrusted to the Legislature of the country. Apart from legislation our Parliament has become multi-functional institution performing various roles, namely, inquisitorial, financial and administrative surveillance, grievance redressal and developmental. Parliament, however, is not vested with any adjudicatory jurisdiction which belongs to judicature under the Constitutional Scheme. [Para 147][250-D]

14.4 The function of adjudicating rights of the parties has been entrusted to the constituted courts as per Constitutional Scheme, which adjudication has to be made after observing the procedural safeguards which include right to be heard and right to produce evidence. [Para 148][250-H; 251-A]

14.5 The apprehension of the respondents that their case shall be prejudiced if this Court accepts the Parliamentary Committee Report in evidence, is misplaced. By acceptance of a Parliamentary Committee Report in evidence does not mean that facts stated in the Report stand proved. When issues, facts come before a Court of law for adjudication, the Court is to decide the issues on the basis of evidence and materials brought before it and in which adjudication Parliamentary Committee Report may only be one of the materials, what weight has to be given to one or other evidence is the adjudicatory function of the Court which may differ from case to case. The Reports cannot be treated as conclusive or binding of what has been concluded in the Report. When adjudication of any claim fastening any civil or criminal liability on an individual is up in a Court of law, it is open for a party to rely on all evidences and materials which is in its power and Court has to decide the issues on consideration of entire material brought before it. When the Parliamentary Committee Report is not adjudication of any civil or criminal liability of the private respondents, their fear that acceptance of report shall prejudice their case is unf ounded. Thus, by accepting Parliamentary Committee Report on the record in this case and considering the Report by this Court, the respondents’ right to dispel conclusions and findings in the Report are not taken away and they are free to prove their case in accordance with law. [Para 150][251-D-H]

I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu (2007)

2 SCC 1 : [2007] 1 SCR 706; State of Karnataka v. Union of India (1977) 4 SCC 608 : [1978] 2 SCR 1– referred to.

Dingle v Associated Newspapers Ltd. (1960) 2 Q.B. 405; L’Esprit des Lois, by Montesquieu – referred to.