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Judgments of Supreme Court of India and High Courts

Kalpana Mehta And Ors. vs Union Of India And Ors. on 9 May, 2018

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 558 OF 2012

Kalpana Mehta and others …Petitioner(s)

Versus

Union of India and others …Respondent(s)

WITH

WRIT PETITION (CIVIL) NO. 921 OF 2013

JUDGMENT

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

INDEX

S. No. Heading Page No.

A. Introduction 3

B. The factual background 4
B.1 The Reference 6
C. Contentions of the petitioners 8
D.

Signature Not Verified Contentions of the respondents 12
Digitally signed by

E. Supremacy of the Constitution 14
DEEPAK GUGLANI
Date: 2018.05.09
13:32:34 IST
Reason:

F. Constitutional limitations upon the 17
legislature
2

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

A. Introduction

In a parliamentary democracy where human rights are

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

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

the Constitutional Courts to strike a balance between emphatic

hermeneutics on progressive perception of the provisions of the

Constitution on the one hand and the self-imposed judicial

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

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

interpretation and its constitutional vision and purpose. The

Courts never allow a constitutional provision to be narrowly

construed keeping in view the principle that the Constitution is a

living document and organic which has the innate potentiality to

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

their constitutional sensibility, do possess a progressive outlook

having a telescopic view of the growing jurisprudence.

Nonetheless, occasions do arise where the constitutional

consciousness is invoked to remind the Court that it should not

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

Constitution, to strike the requisite balance whenever there is a

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

in various articles of the grand fundamental document. In the

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

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

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

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

whether a Parliamentary Standing Committee (PSC) report can be

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

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

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

and steer through certain foundational fundamentals which take

within its ambit the supremacy of the Constitution, constitutional

limitations, separation of powers, power of judicial review and

self-imposed restraint, interpretation of constitutional provisions

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

democracies and also certain statutory provisions of the Indian

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

B. The factual background

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

Bench that was hearing the instant Writ Petitions had focussed

around the justifiability of the action taken by the Drugs

Controller General of India and the Indian Council of Medical
5

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

Human Papilloma Virus (HPV) manufactured by the Respondent

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

No. 8, MSD Pharmaceuticals Private Limited, for preventing

cervical cancer in women and the experimentation of the vaccine

was done as an immunisation by the Governments of Gujarat

and Andhra Pradesh (before bifurcation, the State of Andhra

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

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

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

grievance with regard to the untimely death of certain persons

and the grant of compensation on the foundation that there had

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

the age of majority without the consent of their

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

projected that women, though being fully informed, had become

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

advanced pertaining to the hazards of the vaccination and

obtaining of consent without making the persons aware of the

possible after effects and the consequences of the administration
6

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

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

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

learned counsel for the writ petitioners had invited the attention

of the Bench to a report of the Parliamentary Standing Committee

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

affidavits regarding the steps taken keeping in view the various

instructions given from time to time including what has been

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

respondents stating about the safety of the vaccination and the

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

the allegations made in the writ petitions were also controverted.

B.1 The Reference

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

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

Additional Solicitor General appearing for the Union of India

submitted that this Court, while exercising the power of judicial

review or its expansive jurisdiction under Article 32 of the

Constitution of India dealing with public interest litigation,

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

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

directions. The assistance of learned Attorney General was also

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

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

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

appropriate to refer it to a Constitution Bench under Article

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

expressed thus:-

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

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

1 (2017) 7 SCC 307
8

report may not be tendered as a document to
augment the stance on the factual score that a
particular activity is unacceptable or erroneous.
However, regard being had to the substantial
question of law relating to interpretation of the
Constitution involved, we think it appropriate that
the issue be referred to the Constitution Bench
under
Article 145(3) of the Constitution.‖

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

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

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

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

Because of the aforesaid reference, the matter has been

placed before us.

C. Contentions of the petitioners

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

has been advanced by the learned counsel appearing for the

petitioners that the lis raised neither relates to parliamentary

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

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

any adjudication relating to the issue of mandamus for the

enforcement of the recommendations of the PSC report. What is

suggested is that the Court should not decide the controversy as

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

conclusive; rather the Court should take judicial notice of the

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

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

the Constitution to conduct an independent inquiry being

assisted by the Court Commissioners and also give direction for

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

simplest terms that the petitioners are entitled to bring the facts

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

Court to analyse the said facts and express an opinion at

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

independent of the PSC report which only has persuasive value.

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

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

spectrum and the Court under the Constitution is within its

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

spectrum of inputs and materials including what has been stated

in the PSC report.

10

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

convey that no constitutional debate should be raised with regard

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

without reference to the concepts of parliamentary privilege,

separation of powers and comity of institutions. The argument,

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

bedrock inasmuch as Mr. Colin Gonsalves and Mr. Anand

Grover, learned senior counsel appearing for the petitioners, have

argued that the Constitutional Court in exercise of the power of

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

rely upon the said report within the constitutional parameters

and the proposition does not invite any constitutional

discordance. It is further contended that the concept of

parliamentary privilege is enshrined under Article 105 of the

Constitution which guarantees freedom of speech within the

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

said freedom has been conferred to ensure that the members of

Parliament express themselves freely in Parliament without fear

of any impediment of inviting any civil or criminal proceedings.

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

immunity to the members of Parliament from civil and criminal
11

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

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

Committee thereof.

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

the instant case does not invite the wrath of violation of

parliamentary privilege which Article 105 seeks to protect. It is

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

see the Parliamentary Standing Committee reports. Thus,

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

expansive jurisdiction under Article 32 of the Constitution

remotely touches the concept of privilege under Article 105 of the

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

arrived at by the Parliamentary Committee are of immense

assistance for the adjudication of the controversy in question and

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

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

member of the Parliament or any member of the Standing

Committee. Therefore, the violation of parliamentary privilege

does not arise.

9. Learned counsel for the petitioners would contend that this

Court is neither called upon to comment expressly or otherwise
12

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

enforcement of the recommendations in the report. It is brought

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

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

D. Contentions of the respondents

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

counsel appearing for the petitioners have been seriously

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

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

Divan, learned senior counsel appearing for the contesting

respondents. Their basic propositions are grounded, first on

constitutional provisions which prescribe the privilege of the

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

contest and the limited reliance that has been placed by this

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

floor of the legislature only to understand the provisions of a

statute in certain context and second, the limited interpretation

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

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

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

the report would definitely create a stir in the constitutional

balance.

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

Court has relaxed the principle of locus standi, encouraged

epistolary jurisdiction, treated the petitioner as a relator, required

the parties on certain occasions not to take an adversarial

position and also not allowed technicalities to create any kind of

impediment in the dispensation of justice but the said category of

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

the federal structure of the Constitution or allow to place a

different kind of interpretation on a constitutional provision

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

Constitution.

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

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

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

constitutional provisions, the constitutional values and the

precedents. To address the issue singularly from the prism of

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

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

be addressed to at the appropriate stage.

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E. Supremacy of the Constitution

13. The Constitution of India is the supreme fundamental law

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

Constitution. The constitutional provisions postulate the

conditions for the functioning of the legislature and the executive

and prescribe that the Supreme Court is the final interpreter of

the Constitution. All statutory laws are required to conform to

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

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

judiciary, as has been stated in His Holiness Kesavananda

Bharati Sripadagalvaru v. State of Kerala and another 2,

derive their authority and jurisdiction from the Constitution. The

Parliament has the exclusive authority to make laws and that is

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

understood. There is a distinction between parliamentary

supremacy in the field of legislation and constitutional

supremacy. The Constitution is the fundamental document that

provides for constitutionalism, constitutional governance and

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

various articles and sometimes are decipherable from the

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

constitutional silence. Its inherent dynamism makes it organic

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

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

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

source‖. Sometimes, the constitutional sovereignty is described

as the supremacy of the Constitution.

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

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

concurring opinion, stated that the Constitution is suprema lex,

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

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

proceeding further, observed that every organ of the government,

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

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

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

ruled that this Court is the ultimate interpreter of the

Constitution and to this Court is assigned the delicate task of

determining what is the power conferred on each branch of the

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

and whether any action of that branch transgresses such limits.

3 (1977) 3 SCC 592
16

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

constitutional values and to enforce the constitutional

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

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

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

supremacy of the Constitution embodies that constitutional

bodies are required to comply with the provisions of the

Constitution. It also mandates a mechanism for testing the

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

judiciary.

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

between parliamentary and constitutional sovereignty. Speaking

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

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

exercise of law-making power by the Constituent Assembly that

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

represent the foundational values which form the bedrock of the

rule of law. These are the principles of constitutionality which

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

separation of powers.

4 (2007) 2 SCC 1
17

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

of constitutional sovereignty and all are governed by the

framework of the Constitution. The Constitution does not accept

transgression of constitutional supremacy and that is how the

boundary is set.

F. Constitutional limitations upon the legislature

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

is bound by the concept of constitutional limitation. It is

necessary to appreciate what precisely is meant by constitutional

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

Court, in the context of freedom of speech and expression

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

principle of constitutional limitation and opined that where a law

purports to authorise the imposition of restrictions on a

fundamental right in a language wide enough to cover

restrictions both within and without the limits of constitutionally

permissible legislative action affecting such right, it is not

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

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

possibility of its being applied for purposes not sanctioned by the

5 1952 SCR 284 : AIR 1952 SC 75
18

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

unconstitutional and void. The emphasis was laid on

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

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

legislation and colourable legislation and, in that context,

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

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

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

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

within the exclusive field of another legislature.

18. Dwelling upon the legal effect of a constitutional limitation

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

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

Pradesh and others7 reproduced a passage from Cooley‘s book

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

to the following effect:-

―From what examination has been given to this
subject, it appears that whether a statute is
constitutional or not is always a question of power;

that is, a question whether the legislature in the
particular case, in respect to the subject-matter of
the act, the manner in which its object is to be
accomplished, and the mode of enacting it, has kept

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

within the constitutional limits and observed the
constitutional conditions.‖

Thereafter, the Constitution Bench referred to the

observations of the Judicial Committee in Queen v. Burah 8

wherein it was observed that whenever a question as to whether

the legislature has exceeded its prescribed limits arises, the

courts of justice determine the said question by looking into the

terms of the instrument which created the legislative powers

affirmatively and which restricted the said powers negatively.

The Constitution Bench also referred to the observations of the

Judicial Committee in Attorney-General for Ontario v.

Attorney-General for Canada 9 which were later on lucidly

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

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

distributes the legislative powers amongst different bodies which

have to act within their respective spheres marked out by specific

legislative entries or if there are limitations on the legislature in

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

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

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

limits of its constitutional power in respect of the subject matter

of the statute or in the method of making it.

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

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

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

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

constitutional limitation. It is imperative to remember that our

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

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

said power, the authorities are constitutionally required to act

within their spheres having mutual institutional respect to realize

the constitutional goal and to see that there is no constitutional

transgression. The grammar of constitutional limitation has to be

perceived as the constitutional fulcrum where control operates

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

and judiciary. It is because the Constitution has created the

three organs of the State.

20. Under the Constitution, the Parliament and the State

legislatures have been entrusted with the power of law making.

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

10 (2017) 7 SCC 59
21

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

ultra vires by the Constitutional Courts. That power has been

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

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

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

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

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

the executive or any other authority, should be within the

constitutional limitations.

G. Doctrine of separation of powers

21. Having stated about constitutional sovereignty and

constitutional limitation, we may presently address the issue as

to how the Constitution of India has been understood in the

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

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

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

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

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

appropriate to reproduce the paragraph in entirety:-

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

11 1975 Supp. SCC 1
22

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

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

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

the Indian context when the Court in Kesavananda Bharati’s

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

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

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

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

decide whether or not to introduce any particular legislation. Of

course, any member of the legislature can also introduce

legislation but the Court certainly cannot mandate the executive

or any member of the legislature to initiate legislation, howsoever

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

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

duties allocated to the judiciary under the Constitution. The

Court further observed that it cannot usurp the functions

assigned to the legislature under the Constitution and it cannot

even indirectly require the executive to introduce a particular

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

supervisory role over the law-making activities of the executive

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

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

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

separation of powers, stated that even without express provision

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

is an entrenched principle in the Constitution of India. The

doctrine of separation of powers informs the Indian constitutional

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

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

for understanding the concept of separation of powers, observed

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

powers is an essential feature of the Constitution and secondly,

that in modern governance, a strict separation is neither possible

nor desirable. Nevertheless, till this principle of accountability is

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

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

Constitution does not strictly prohibit overlap of functions and, in

fact, provides for some overlap in a parliamentary democracy.

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

which results in wresting away of the regime of constitutional

accountability.

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

Federation of Railway Officers Association and others v.

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

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

Raghunath Gajanan Waingankar 18 , the Court applied the

principle of restraint, acknowledging and respecting the

constitutional limitation upon the judiciary to recognize the

doctrine of separation of powers and restrain itself from entering

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

in Divisional Manager, Aravali Golf Club and another v.

Chander Hass and another 19 observed that under our

constitutional scheme, the Legislature, Executive and Judiciary

have their own broad spheres of operation and each organ must

have respect for the others and must not encroach into each

others‘ domain, otherwise the delicate balance in the Constitution

will be upset, and there will be a reaction.

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

Kashmir and others20, the Court observed that the Constitution

makers have meticulously defined the functions of various organs

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

function within their own spheres demarcated under the

Constitution. It further ruled that the Constitution trusts the

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

judgment of these organs to function and exercise their discretion

by strictly following the procedure prescribed therein. The

functioning of democracy depends upon the strength and

independence of each of its organs. The Legislature and the

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

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

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

aforesaid two main organs of the State function within the

constitutional limits. It is the sentinel of democracy. Judicial

review is a powerful weapon to restrain unconstitutional exercise

of power by the legislature and the executive. The expanding

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

social and economic justice. The exercise of powers by the

legislature and executive is subject to judicial restraint and the

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

imposed discipline of judicial restraint.

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

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

doctrine laid down in Kesavananda Bharati (supra) by the

majority and the reiteration thereof in Indira Nehru Gandhi
27

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

book ―The Federalist‖ and eventually held:-

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

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

of constitutional limitation is a facet of the doctrine of separation

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

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

when issues involve democracy, the essential morality that flows

from the Constitution, interest of the citizens in certain spheres

like environment, sustenance of social interest, etc. and

empowering the populace with the right to information or right to

know in matters relating to candidates contesting election. There

can be many an example where this Court has issued directions

to the executive and also formulated guidelines for facilitation

and in furtherance of fundamental rights and sometimes for the

actualization and fructification of statutory rights.
28

H. Power of judicial review

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

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

the Constitution of India. The Court has the adjudicating

authority to scrutinize the limits of the power and transgression

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

succinctly stated in Union of India and another v. Raghubir

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

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

And again:-

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

21 (1989) 2 SCC 754
29

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

The aforesaid two passages lay immense responsibility on

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

the accepted values of the present. An organic instrument

requires the Court to draw strength from the spirit of the

Constitution. The propelling element of the Constitution

commands the realization of the values. The aspiring dynamism

of the interpretative process also expects the same.

29. This Court has the constitutional power and the authority

to interpret the constitutional provisions as well as the statutory

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

great sanctity as the Constitutional Court has the power to

declare any law as unconstitutional if there is lack of competence

of the legislature keeping in view the field of legislation as

provided in the Constitution or if a provision contravenes or runs

counter to any of the fundamental rights or any constitutional

provision or if a provision is manifestly arbitrary.

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

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

review which the Constitution has bestowed upon the judiciary is

not unfettered; it comes within the conception of judicial

restraint. The principle of judicial restraint requires that judges

ought to decide cases while being within their defined limits of

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

of the Constitution as per the limits laid down by the

Constitution.

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

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

restraint and ordinarily should not encroach into the legislative

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

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

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

made before this Court to issue directions for appropriate

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

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

matter of policy which is for the elected representatives of the

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

this regard. The Court further observed that this Court cannot

issue directions to the legislature to make any particular kind of

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

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

constitutional scheme, the Parliament and legislative assemblies

exercise sovereign power to enact law and no outside power or

authority can issue a direction to enact a particular kind of

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

Supreme Court Employees’ Welfare Association v. Union of

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

a legislature to enact a particular law and similarly when an

executive authority exercises a legislative power by way of a

subordinate legislation pursuant to the delegated authority of a

legislature, such executive authority cannot be asked to enact a

law which it has been empowered to do under the delegated

authority.

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

Krishnamurthy 25 , the Court, after referring to Premium

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

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

of Madhya Pradesh v. Narmada Bachao Andolan and

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

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

Bagga and others29, held:-

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

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

judicial restraint cannot and should not be such that it amounts

to judicial abdication and judicial passivism. The Judiciary

cannot abdicate the solemn duty which the Constitution has

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

the citizens guaranteed under Part III of the Constitution. The

Constitutional Courts cannot sit in oblivion when fundamental

rights of individuals are at stake. Our Constitution has conceived

the Constitutional Courts to act as defenders against illegal

intrusion of the fundamental rights of individuals. The

Constitution, under its aegis, has armed the Constitutional

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

Courts with wide powers which the Courts should exercise,

without an iota of hesitation or apprehension, when the

fundamental rights of individuals are in jeopardy. Elucidating on

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

The State of Uttar Pradesh30 has observed:-

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

34. While interpreting fundamental rights, the Constitutional

Courts should remember that whenever an occasion arises, the

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

lively spirit and vigour so that the fundamental rights do not

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

interpreting fundamental rights, the Constitutional Courts

should altogether depart from the doctrine of precedents but it is

the obligation of the Constitutional Courts to act as sentinel on

the qui vive to ardently guard the fundamental rights of

individuals bestowed upon by the Constitution. The duty of this

30 AIR 1954 SC 447
34

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

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

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

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

Article 32 of the Constitution which has been described by

Dr. B.R. Ambedkar as “the very soul of the Constitution – the very

heart of it – the most important Article.” Article 32 enjoys special

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

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

consonance with the duty of this Court under the Constitution,

that is, to secure the inalienable fundamental rights of

individuals.

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

36. Having stated about the supremacy of the Constitution and

the principles of constitutional limitation, separation of powers

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

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

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

maintaining democratic process and to avoid political friction, it

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

is necessary to direct the political parties within the purview of

the constitutional umbrella to strongly adhere to constitutional

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

of the obtaining empirical facts and the aspirations of the

generation that are telescoped into the future. If constitutional

provisions have to be perceived from the prism of growth and

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

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

to be understood in their life and spirit with the further

potentiality to change.

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

v. Income Tax Officer and another33 has lucidly expressed that

our Constitution charges the various organs of the State with

affirmative responsibilities of protecting the welfare and the

security of the nation. Legislative powers are granted to enable

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

judicial review are granted in order to ensure that legislative and

executive powers are used within the bounds specified by the

Constitution. The powers referred by the Constitution and

implied and borne by the constitutional text have to be perforce

33 (2011) 4 SCC 36
36

admitted. Nevertheless, the very essence of constitutionalism is

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

beyond what is specified by the Constitution. Speaking on the

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

is necessary in dealing with the powers of another coordinate

branch of the Government; but restraint cannot imply abdication

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

facet of interpreting any law, including the Constitution, the

Court observed that the text of the provision under consideration

would be the primary source for discerning the meanings that

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

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

matter of constitutional necessity, to widen the search for the

true meaning, purport and ambit of the provision under

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

the Constitution exists in isolation—they are necessarily related

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

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

Court went on to say:-

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

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

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

38. The Constitution being an organic document, its ongoing

interpretation is permissible. The supremacy of the Constitution

is essential to bring social changes in the national polity evolved

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

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

only required to take into consideration their own experience over

time, the international treaties and covenants but also keep the

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

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

the Court ruled that correct interpretation in proper perspective

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

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

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

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

Constitution to bring the political parties within the purview of

the constitutional parameters for accountability and to abide by

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

passage of time, the interpretative process has become expansive.

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

and to assert the constitutional supremacy to meet the legitimate

expectations of the citizens. The words of the Constitution have

been injected life to express connotative meaning.

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

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

opined that constitutional developments have taken place as the

words of the Constitution have been interpreted to deal with new

exigencies requiring an expansive reading of liberties and

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

been further observed that the interpretation of the Constitution

cannot be frozen by its original understanding, for the

Constitution has evolved and must continuously evolve to meet

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

duty of the Constitutional Courts to interpret the Constitution

opened the path for succeeding generations to meet the

36 (2017) 10 SCC 1
39

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

matter of fundamental right.

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

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

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

circumstances and values but also in such a way that the

circumstances and values of the present generation are given

expression in its provisions. The Court has observed that

constitutional interpretation is as much a process of creation as

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

to meet the values and aspirations of the present generation and

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

has to be remembered that while interpreting a constitutional

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

of the language employed therein and also the constitutional

silences or abeyances that are discoverable. The scope and

discovery has a connection with the theory of constitutional

implication. Additionally, the interpretative process of a provision

of a Constitution is also required to accentuate the purpose and

37 (1993) 4 SCC 441
40

convey the message of the Constitution which is intrinsic to the

Constitution.

I.1 Interpretation of fundamental rights

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

shall focus on the interpretative process adopted by this Court in

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

Constitution came into force, the Court viewed each fundamental

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

interpretation was applied. The contours were narrow and

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

State of Madras 38 . The perception changed when the Court

focussed on the actual impairment caused by the law rather than

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

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

Union of India39 and understood that the view rendered therein

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

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

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

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

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

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

State of West Bengal and others43, reproduced a passage from

Maneka Gandhi v. Union of India and another44 which reads

thus:-

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

42. The Court reproduced a passage from the opinion expressed

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

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

Article 19 if both the rights are breached.

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

Maneka Gandhi, it is clear that the development of fundamental

rights had been such that it no longer involves the interpretation

of rights as isolated protections which directly arise but they

collectively form a comprehensive test against the arbitrary

exercise of powers in any area that occurs as an inevitable

consequence. The Court observed that the protection of

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

fundamental rights has been considerably widened. In that

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

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

fundamental right becomes fundamental because it has

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

of the article in which the fundamental value is incorporated.

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

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

which entrenches fundamental rights and freedoms to which all

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

and purposive construction. The Court must interpret the

Constitution in a manner which would enable the citizens to

enjoy the rights guaranteed by it in the fullest measure.

I.2 Interpretation of other constitutional provisions

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

have applied the principles of interpretation in relation to other

constitutional provisions which are fundamental to constitutional

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

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

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

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

Minister under Article 164 of the Constitution, then he must

satisfy the qualification of membership of a legislator as

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

the doctrine of implied limitation and referring to various

opinions stated in Kesavananda Bharati (supra) and Minerva

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

that the principle of implied limitation is attracted to the sphere

of constitutional interpretation.

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

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

of implied limitation to the said provision would tantamount to

prohibition or adding a disqualification which is neither expressly

stated nor impliedly discernible from the provision. Eventually,

the majority expressed that when there is no disqualification for a

person against whom charges have been framed in respect of

heinous or serious offences or offences relating to corruption to

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

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

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

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

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

of eligibility and would amount to prescribing an eligibility

qualification and adding a disqualification which has not been

stipulated in the Constitution. In the absence of any

constitutional prohibition or statutory embargo, such

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

of the Constitution.

46. Another aspect that was highlighted in Manoj Narula

(supra) pertained to constitutional implication and it was

observed that the said principle of implication is fundamentally

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

the text. The concept of legitimate deduction is always

recognised. In Melbourne Corporation v. Commonwealth 49 ,

Dixon, J. opined that constitutional implication should be based

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

Australian Capital Television Pty. Limited and others and

the State of New South Wales v. The Commonwealth of

Australia and another 50 [Political Advertising case], has

ruled that there can be structural implications which are

―logically or practically necessary for the preservation of the

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

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

taking this route of interpretation must find some resting pillar or

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

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

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

legitimacy of reasoning. A proposition can be established by

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

domain of substantive legitimacy. Elaborating further, the Court

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

the Court cannot rewrite a constitutional provision. To justify the

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

constitutional foundation.

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

others51, a Constitution Bench, while interpreting Article 80 of

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

Narayanaswami v. G. Pannerselvam and others52. The said

authority clearly lays down that Courts should interpret in a

broad and generous spirit the document which contains the

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

desirable to give a broad and generous construction to the

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

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

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

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

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

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

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

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

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

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

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

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

when the Court interprets a constitutional provision, it breathes

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

problem before the Constitutional Court is not a mere verbal

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

meaning‖ and he went on to add in Massachusetts Bonding

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

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

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

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

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

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

words and a dictionary, but by considering the purpose and

intendment of the framers as gathered from the context and the

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

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

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

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

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

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

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

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

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

an enormous responsibility when it functions as the final arbiter

of the interpretation of the constitutional provision.

50. We have discussed the concepts of supremacy of the

Constitution and constitutional limitation, separation of powers,

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

progressive method adopted by the Court while interpreting

fundamental rights and the expansive conception of such

inherent rights. We have also deliberated upon the interpretation

of other constitutional provisions that really do not touch the

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

area of fundamental rights but are fundamental for constitutional

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

constitutional boundaries. We may immediately add that in the

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

such constitutional provisions which have impact on the

fundamental rights of the citizens. We are concerned with the

interpretation of certain provisions that relate to parliamentary

privilege and what is protected by the Constitution in certain

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

role to rely upon the reports of Parliamentary Standing

Committees in the context of the constitutional provisions

contained in Articles 105 and 122.

J. A perspective on the role of Parliamentary Committees

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

standing Committees or ad hoc committees. They are constituted

with certain purposes. The formation of committee has history.

“Committees have been described as a primary organizational

device whereby legislatures can accommodate an increase in the

number of bills being introduced, while continuing to scrutinize

legislation; handle the greater complexity and technical nature of

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

“division of labours” among members for considering

legislation….”56.

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

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

say that Congress in session is Congress on public exhibition,

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

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

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

House.

53. Former U.S. Representative James Shannon commented

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

legislature:-

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

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

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

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

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

which the word “Committee” was used in old parliamentary

language:-

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

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

Lord Beaconsfield60:-

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

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

further been detailed thus61:-

59 “An Introduction to the Procedure of House of Commons”
60 Lord Beaconsfield in Hansard, 3rd Series, Vol.235 (1877) p. 1478
51

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

61 “Growth of Committee System in the Central Legislature of India 1920-1947”
52

fields of interest of the government increase day by
day.”

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

made with respect to the functions of Committees:-

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

58. Today parliamentary committee systems have emerged as a

creative way of parliaments to perform their basic functions. They

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

of parliaments, bills, resolutions and matters on specific issues

are referred to specific committees for debate and

recommendations are made to the House for further debate.

Parliamentary committees have emerged as vibrant and central
53

institutions of democratic parliaments of today’s world.

Parliaments across the globe set up their own rules on how

committees are established, the composition, the mandate and

how chairpersons are to be selected but they do have certain

characteristics in common. They are usually a small group of

MPs brought together to critically review issues related to a

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

often expected to present their observations and

recommendations to the Chamber for final debate.

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

examine specific matters of policy or government administration

or performance. Effective committees have developed a degree of

expertise in a given policy area, often through continuing

involvement and stable memberships. This expertise is both

recognized and valued by their colleagues. They are able to

represent diversity as also reconcile enough differences to sustain

recommendations for action. Also, they are important enough so

that people inside and outside the legislature seek to influence

outcomes by providing information about what they want and

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

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

identify politically and technically feasible alternatives.

K. International position of Parliamentary Committees

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

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

of Parliamentary Standing Committees in a parliamentary

democracy.

61. History divulges that Parliamentary Standing Committees

have been very vital institutions in most of the eminent

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

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

importance in the field of governance.

K.1 Parliamentary Committees in England

62. British parliamentary history validates that parliamentary

committees have existed in some form or the other since

the 14th century. Perhaps the committee system originated with

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

members selected for drawing up legislations to carry into effect

citizens‘ prayers that were expressed through petitions. By the

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

into existence. These Parliamentary committees are sub-
55

legislative organizations each consisting of small number of

Members of Parliament from the House of Commons,

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

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

members of the Commons. 62 The majority of parliamentary

committees are Select Committees which are designed to:-

1. Superintend the work of departments and
agencies;

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

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

63. The other committees such as ―Departmental Select

Committees‖ are designed to oversee and examine the work

of individual government departments, ―Topical Select

Committee‖ examines contemporary issues of significance and

―Internal Select Committees‖ have responsibility with respect to

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

have a very powerful network of committees to ensure executive

accountability.

K.2 Parliamentary Committees in United States of America

64. Parliamentary Committees are essential to the effective

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

56

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

among 20 permanent committees, 4 joint committees and

occasionally temporary committees. Although the Senate

committee system is similar to that of the House of

Representatives, it has its own guidelines within which each

committee adopts its own rules. This creates considerable

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

majority of its members represent the majority party. The chair

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

own members to committees, and each committee distributes its

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

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

and chair. Committees receive varying levels of operating funds

and employ varying numbers of aides. Each hires its own

staff. The majority party controls most committee staff and

resources, but a portion is shared with the minority.

65. The role and responsibilities of Parliamentary committees in

the United States of America are as follows:-

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

governmental operations, identify issues suitable for legislative

64 See https://www.britannica.com/topic/Congress-of-the-United-States for details.
57

review, gather and evaluate information and recommend courses

of action to their parent body.

(ii) The Committee membership enables members to develop

specialized knowledge of the matters under their jurisdiction.

(iii) Standing committees generally have legislative

jurisdiction. Sub-committees handle specific areas of the

committee‘s work. Select and joint committees generally handle

oversight or housekeeping responsibilities.65

(iv) Several thousand bills and resolutions are referred to

committees during each 2-year Congress. Committees select a

small percentage for consideration, and those not addressed

often receive no further action. The bills that committees report

help to set the Senate‘s agenda.

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

usually takes four actions: first it asks relevant executive

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

hearings to gather information and views from non-committee

experts and at committee hearings, these witnesses summarize

submitted statements and then respond to questions from the

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

58

senators; third, a committee meets to perfect the measure

through amendments, and non-committee members sometimes

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

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

Senate, usually along with a written report describing its

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

enactment of bills into law. A committee that considers a

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

members will be appointed to any conference committee created

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

House of Representatives.

K.3 Parliamentary Committees in Canada

67. The Parliament in Canada also functions through various

standing committees established by Standing Orders of

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

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

Standing Orders, may undertake studies on its own initiative.

There are presently 23 standing committees (including two

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

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

developments and budgetary estimates of government

departments and agencies. Certain standing committees are also

given mandates to examine matters that have implications such

as official languages policy and multiculturalism policy.

K.4 Parliamentary Committees in Australia

68. The primary object of parliamentary committees in Australia

is to perform functions which the Houses themselves are not well

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

witnesses, sifting evidence, and drawing up reasoned

conclusions. Because of their composition and method of

procedure, which is structured but generally informal compared

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

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

‘take Parliament to the people’ and allow organisations and

individuals to participate in policy making and to have their views

placed on the public record and considered as part of the

decision-making process. Not only do committee inquiries enable

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

Members to be better informed about community views but in

simply undertaking an inquiry, the committee may promote

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

of most committees and their propensity to operate across party

lines are important features.68 This bipartisan approach generally

manifests itself throughout the conduct of inquiries and the

drawing up of conclusions. Committees oversee and scrutinise

the Executive and contribute towards a better-informed

administration and government policy-making process. 69 In

respect of their formal proceedings, committees are microcosms

and extensions of the Houses themselves, limited in their power

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

governed for the most part in their proceedings by procedures

and practices which reflect those which prevail in the House by

which they were appointed.

L. Parliamentary Committees in India

69. Having reflected upon the parliamentary committees and

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

with the parliamentary committees in India. The long freedom

struggle in India was not just a movement to achieve freedom

68 Id.

69 Id.

61

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

from the various social evils and socio-economic inequities and

discriminations, to lift the deprived and the downtrodden from

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

transformation of the country. It was with this larger national

objective that a democratic polity based on parliamentary

system was conceived and formally declared in 1936 as ―the

establishment of a democratic state,‖ a sovereign state which

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

social and economic order.

70. The founding fathers of the Constitution perceived that

such a system would respond effectively to the problems arising

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

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

political system that we established, prominence was given to

the Parliament, the organ that directly represents the people

and as such accountable to them.

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

the Parliamentary Committee. The committee system in India, as

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

Effectiveness in Enforcing Executive Accountability‖, Hanoi

Session, March 2015, is as follows:-

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

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

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

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

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

of the Standing Committees of Parliament:-

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

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

only diverse and complex in nature but also considerable in

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

therefore, give close consideration to all the legislative and other

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

therefore, transacted in the Committees of the House known as

Parliamentary Committees. Parliamentary Committee means a
64

Committee which is appointed or elected by the House or

nominated by the Speaker and which works under the direction

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

Speaker.

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

committee system has a vital role in the parliamentary

democracy. Generally speaking, the Parliamentary committees

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

Standing Committees are permanent and regular committees

which are constituted from time to time in pursuance of the

provisions of an Act of Parliament or Rules of Procedure and

Conduct of Business in Lok Sabha. The work of these

Committees is of continuous nature. The Financial Committees,

Department Related Standing Committees (DRSCs) and some

other Committees too come under the category of Standing

Committees. The ad hoc Committees are appointed for specific

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

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

parliamentary committees are invariably larger in size and are

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

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

Related Standing Committees covering under their jurisdiction all

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

these Committees consists of 31 Members – 21 from Lok Sabha

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

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

office of these Committees does not exceed one year.

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

75. A close look at the functioning of these committees

discloses the fact that the committee system is designed to

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

governmental action including defence, external affairs,

industry and commerce, agriculture, health and finance. They

offer opportunities to the members of the Parliament to realize

and comprehend the dynamics of democracy. The members of

Parliament receive information about parliamentary workings as

well as perspective on India‘s strengths and weaknesses

through the detailed studies undertaken by standing

committees. Indian parliamentary committees are a huge basin

of information which are made available to the Members of

Parliament in order to educate themselves and contribute ideas

to strengthen the parliamentary system and improve
66

governance. The committee system is designed to enhance

the capabilities of Members of Parliament to shoulder

greater responsibilities and broaden their horizons.

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

the Parliamentary Committee, we may usefully refer to the Rules

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

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

Committee‖. It reads as follows:-

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

77. From the referral judgment, we may reproduce the

following paragraphs dealing with the relevant Rules:-

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

(a) Financial Committees;

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

67

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

(d) Enquiry Committee;

(e) Scrutiny Committees;

(f) Service Committees;

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

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

Apart from the above, there are various

departmentally related Standing Committees under
various Ministries.‖

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

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

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

(b) that the Bill as reported by the Select
Committee of the House or the Joint Committee
of the Houses, as the case may be, be re-
committed to the same Select Committee or to a
new Select Committee, or to the same Joint
Committee or to a new Joint Committee with the
concurrence of the Council, either—

(i) without limitation, or

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

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

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

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

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

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

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

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

Parliamentary Committee meant for Committees of the Rajya

Sabha, is relevant. It reads as follows:-

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

(a) to consider the Demands for Grants of the
related Ministries/Departments and report thereon.
The report shall not suggest anything of the nature
of cut motions;

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

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

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

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

80. Rule 271 provides for the applicability of provisions relating

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

The said Rule reads as follows:-

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

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

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

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

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

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

worth quoting:-

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

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

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

is meant for the Parliament.

M. Parliamentary privilege

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

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

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

advantages of other citizens. An exceptional or extraordinary

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

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

generally possessed by others.”

83. Parliamentary privilege is defined by author Erskine May in

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

Usage of Parliament:-

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

84. The concept of Parliamentary Privilege has its origin in

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

71 May, 22nd ed., p. 65. For other definitions of privilege, see Maingot, 2nd ed., pp. 12-3.
72

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

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

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

85. Parliamentary Privilege was introduced to prevent any

undue interference in the working of the Parliament and thereby

enable the members of the Parliament to function effectively and

efficiently without unreasonable impediment. Till date,

Parliamentary Privilege remains an important feature in any

parliamentary democracy. The concept of Parliamentary Privilege

requires a balancing act of two opposite arguments as noted by

Thomas Erskine May:-

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

M.1 Parliamentary privilege under the Indian Constitution

86. Having dealt with the role of the Parliamentary Standing

Committee or Parliamentary Committees, it is necessary to

understand the status of Parliamentary Committee and the

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

Constitution of India, being relevant in this context, is

reproduced below:-

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

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

postulate that no member of Parliament shall be made liable to

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

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

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

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

the Constitution. Members of the Parliament enjoy full freedom in

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

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

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

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

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

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

Parliament. Thus, there is complete constitutional protection. It

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

Parliament may make rules for regulating, subject to the

provisions of this Constitution, its procedure and the conduct of

its business. Condignly analysed, the Parliament has been

enabled by the Constitution to regulate its procedure apart from

what has been stated directly in the Constitution.

88. Article 105 of the Constitution is read mutatis mutandis

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

articles is identical, except that Article 105 employs the word

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

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

invariably apply to the other and vice versa.

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

the controversy pertained to the privileges of the House in

relation to the fundamental rights of the citizens. The decision

expressly started that the Court was not dealing with the internal

proceedings of the House. We may profitably reproduce two

passages from the said judgment:-

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

x x x x x

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

73 AIR 1965 SC 745
76

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

90. The Court further observed:-

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

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

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

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

speech subject to the limitation prescribed by its
first part. It would thus appear that by making this
clause subject only to the specified provisions of the
Constitution, the Constitution-makers wanted to
make it clear that they thought it necessary to
confer on the legislators freedom of speech
separately and, in a sense, independently of Art.

19(1)(a). If all that the legislators were entitled to
claim was the freedom of speech and expression
enshrined in
Art. 19(1)(a), it would have been
unnecessary to confer the same right specifically in
the manner adopted by
Art. 194(1); and so, it would
be legitimate to conclude that
Art. 19(1)(a) is not
one of the provisions of the Constitution which
controls the first part of clause (1) of
Art. 194.‖

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

emphasises the fact that the said freedom is intended to be

absolute and unfettered. Similar freedom is guaranteed to the

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

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

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

States to make laws prescribing their powers, privileges and

immunities; the latter part provides that until such laws are

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

privileges and immunities which the House of Commons enjoyed

at the commencement of the Constitution. The Constitution-

makers, the Court observed, must have thought that the

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

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

was clearly necessary to confer on them the necessary powers,

privileges and immunities. There can be little doubt that the

powers, privileges and immunities which are contemplated by

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

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

function effectively, and that explains the purpose of the latter

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

Article 194 are not in terms made subject to the provisions

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

terms that in exercising the rights conferred on them by clause

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

fundamental rights guaranteed by Part III, they would not be

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

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

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

ruled that these powers are controlled by the basic concepts of

the written Constitution itself and can be exercised within the
79

legislative fields allotted to their jurisdiction by the three Lists

under the Seventh Schedule; but beyond the Lists, the

Legislatures cannot travel. They can no doubt exercise their

plenary legislative authority and discharge their legislative

functions by virtue of the powers conferred on them by the

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

is the Constitution itself. Besides, the legislative supremacy of

our Legislatures including the Parliament is normally controlled

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

Legislatures step beyond the legislative fields assigned to them,

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

fundamental rights of the citizens in a manner not justified by

the relevant articles dealing with the said fundamental rights,

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

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

Legislatures have plenary powers, yet they function within the

limits prescribed by the material and relevant provisions of the

Constitution.

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

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

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

proceedings inside the legislative chamber if his case is that the

said proceedings suffer not from mere irregularity of procedure,

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

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

law, though such scrutiny is prohibited if the complaint against

the procedure is no more than this that the procedure was

irregular. That again is another indication which may afford some

assistance in construing the scope and extent of the powers

conferred on the House by Article 194(3).

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

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

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

of the Parliament are rights which are ―absolutely necessary for

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

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

without unimpeded use of the services of its members and also

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

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

to May‘s Parliamentary Practice. Parliamentary privilege

conceptually protects the members of Parliament from undue

74 (2007) 3 SCC 184
81

pressure and allows them freedom to function within their

domain regard being had to the idea of sustenance of legislative

functionalism. The aforesaid protection is absolute.

M.2 Judicial review of parliamentary proceedings and its
privilege

95. Commenting upon the effect of parliamentary privilege, the

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

out that the normal impact of parliamentary privilege is to

prevent the Court from entertaining any evidence, cross-

examination or submissions which challenge the veracity or

propriety of anything done in the course of parliamentary

proceedings.

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

parliamentary privileges, Lord Brougham, in the case of

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

incumbent upon the Courts of law to defend their high and

sacred duty of guarding themselves, the liberties and the

properties of the subject, and protecting the respectability and

the very existence of the Houses of Parliament themselves,

against wild and extravagant and groundless and inconsistent

notions of privilege.

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

97. The 1999 UK Joint Committee report offers a useful

analysis of the respective roles to be played by the Parliament

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

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

98. With respect to the position of parliamentary privileges and

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

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

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

legislative bodies possess such inherent privileges as may be

necessary to their proper functioning and that the said privileges

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

constitutional. Further, the Court observed that the Courts have

77 [1993] 1 SCR 319
83

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

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

review the correctness of a particular decision made pursuant to

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

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

the guise of privilege from trumping legitimate Charter interests,

the Courts must inquire into the legitimacy of a claim of

parliamentary privilege.

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

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

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

circumstances the Houses are the sole judges of their own

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

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

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

Law Lord remarked that to hold the resolutions of either House

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

conclusion not free from grave complications and it is enough to

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

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

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

following observations with regard to review of Parliamentary

privileges:-

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

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

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

80 “A History of English Law”

85

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

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

of the Constitution. They read as follows:-

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

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

(1) The validity of any proceedings in Parliament
shall not be called in question on the ground of any
alleged irregularity of procedure.
(2) No officer or member of Parliament in whom
powers are vested by or under this Constitution for
regulating procedure or the conduct of business, or
for maintaining order, in Parliament shall be subject
to the jurisdiction of any court in respect of the
exercise by him of those powers.‖

102. As we perceive, the aforesaid Articles are extremely

significant as they are really meant to state the restrictions

imposed by the Constitution on both the institutions.

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

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

1964] (supra), opined:-

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

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

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

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

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

And again:-

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

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

104. After referring to various other decisions, the Court

summarized the principles relating to the parameters of judicial

review in relation to exercise of parliamentary provisions. Some of

the conclusions being relevant for the present purpose are

reproduced below:-

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

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

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

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

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

x x x x

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

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

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

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

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

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

89

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

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

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

x x x x

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

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

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

(u) An ouster clause attaching finality to a
determination does ordinarily oust the power of the
court to review the decision but not on grounds of
lack of jurisdiction or it being a nullity for some
reason such as gross illegality, irrationality,
violation of constitutional mandate, mala fides, non-
compliance with rules of natural justice and
perversity.‖
[Emphasis supplied]
90

105. The aforesaid summarization succinctly deals with the

judicial review in the sense that the Constitutional Courts are not

prevented from scrutinizing the validity of the action of the

legislature trespassing on the fundamental rights conferred on

the citizens; that there is no absolute immunity to the

parliamentary proceeding under Article 105(3) of the

Constitution; that the enforcement of privilege by the legislature

can result in judicial scrutiny though subject to the restrictions

contained in other constitutional provisions such as Articles 122

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

validity of any proceedings in the legislature from being called in

question in a court merely on the ground of irregularity of

procedure, and the proceedings which may be tainted on account

of substantive or gross illegality or unconstitutionality are not

protected from judicial scrutiny.

106. We are presently concerned with the interpretation of two

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

been submitted by the learned counsel on behalf of the

petitioners that the reports of parliamentary committees have

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

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

made by Members of Parliament in Parliament and inference

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

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

aspects of the Parliamentary Committee Reports can be placed

reliance upon. The contention is structured on the foundation

that committee reports are admissible in evidence and in public

interest litigation in exercise of power under Article 32 for

interpreting the legislation and directing the implementation of

constitutional or statutory obligation by the executive.

N. Reliance on parliamentary proceedings as external aids

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

after referring to various decisions of this Court and development

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

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

decent burial by this Court. The Constitution Bench further

observed that the basic purpose of all canons of the Constitution

is to ascertain with reasonable certainty the intention of the

Parliament and for the said purpose, external aids such as

reports of special committee preceding the enactment, the

existing state of law, the environment necessitating enactment of

81 (1984) 2 SCC 183
92

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

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

Court whose primary function is to give effect to the real

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

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

substantial and illuminating aid to construction and, therefore,

the Court decided to depart from the earlier decisions and held

that reports of committees which preceded the enactment of a

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

commission set up for collecting information can be referred to as

external aids of construction.

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

of Ministers in Parliament are referred to on certain occasions for

limited purposes. A Constitution Bench in State of West Bengal

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

that the Statement of Objects and Reasons accompanying a Bill,

when introduced in Parliament, cannot be used to determine the

true meaning and effect of the substantive provisions of the

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

understanding the background and the antecedent state of

82 AIR 1963 SC 1241
93

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

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

legislature did not intend to acquire the proprietary rights vested

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

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

Parliament, is the expression of the collective intention of the

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

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

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

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

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

Minister, ruled that speeches made by members of legislatures on

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

provision is being debated are inadmissible for the purpose of

interpreting the statutory provision. But the Court made it clear

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

reasons for introducing the Bill can certainly be referred to for

ascertaining the mischief sought to be remedied and the object

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

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

83 (1981) 4 SCC 173
94

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

of interpretation of a statute, everything which is logically

relevant should be admitted. Thereafter, the Court acknowledged

a few decisions of this Court where speeches made by the

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

ascertaining the reason for introducing a particular clause.

Similar references have also been made in Dr. Ramesh

Yeshwant Prabhoo v. Prabhakar Kashinath Kunte and

others 84 . That apart, parliamentary debates have also been

referred to appreciate the context relating to the construction of a

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

Madhya Pradesh and another v. Dadabhoy’s New Chirimiri

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

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

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

Tax and others88.

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

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

Construction, observed that the Rule of Exclusion followed in the

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

British Courts has been criticized by jurists as artificial and there

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

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

European system suggests that the interpretation of a statute

being an exercise in the ascertainment of meaning, everything

which is logically relevant should be admissible which implies

that although such extrinsic materials shall not be decisive, yet

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

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

had to these extrinsic materials only in case of incongruities and

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

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

of harmony with other provisions and in other special

circumstances, it may be legitimate to take external assistance to

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

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

allied matters.

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

Surat Art Silk Cloth Manufacturers’ Association, Surat 90 ,

this Court held:-

90 (1980) 2 SCC 31
96

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

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

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

the purposes indicated therein and when the meaning of a

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

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

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

assume significance and become relevant because they precede

the formative process of a legislation.

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

main speech, set out the test as follows:-

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

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

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

parliamentary materials to interpret the phrase ―unlawful object‖

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

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

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

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

The Canadian authorities, as is noticeable from Re Anti-

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

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

others94, the Court took note of the three Parliamentary Standing

Committees appointed at different points of time which had

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

recommended the taking over of Sapru House on the ground of

declining standard of the Institution. Further, this Court took

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

judgment that in the present case, successive parliamentary

committees had found substance in the complaints received that

an institution of national importance was suffering from

mismanagement and maladministration and in pursuance of

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

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

Representation of the People Act, 1951 were challenged which

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

secret ballot system for elections to the Rajya Sabha. Defending

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

of the Ethics Committee of the Parliament which recommended

the open ballot system for the aforesaid purpose. The Committee

had noted the emerging trends of cross voting in elections for

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

reference to rampant allegations that large sums of money and

other considerations encourage the electorate to vote in a

particular manner sometimes leading to defeat of official

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

the Court took note of the recommendations of the Committee

Report while testing the vires of the impugned amendment.

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

aid of the report of the parliamentary committee for the purpose

of appreciating the historical background of the statutory

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

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

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

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

situations the Parliamentary Standing Committee Reports or the

reports of other Parliamentary Committees can be taken note of

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

purpose of interpreting the meaning of the statutory provision

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

appreciate the background of the enacted law is quite different

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

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

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

rule on the same.

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

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

they can refer to the report of the Parliamentary Standing

Committee to establish a fact which they have pleaded and

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

are constituted to make the executive accountable and when the

public interest litigation is preferred to safeguard the public

interest, the report assumes great significance and it is extremely

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

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

question of aid does not relate to any kind of parliamentary

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

to seek liberty from the Parliament or the Parliamentary

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

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

Constitution under Article 105. The court proceedings are

independent of the Parliament and based on multiple inputs,

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

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

and form an opinion in law at variance with the parliamentary

committee report. The learned counsel for the petitioners would

further submit that advancing submissions relying on the report

would not come within the scope of parliamentary privilege.
101

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

119. The learned counsel for the petitioners propound that under

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

committee report can be judicially taken note of as such report

comes within the ambit of the said provision.

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

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

follows:-

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

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

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

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

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

the assumption that the facts scripted in the thirteen sub-

sections are relevant under any one or more Sections of

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

by employing the words “shall”, casts an obligation upon the
102

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

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

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

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

Commissioner of Income Tax, Mysore 95 , has observed that

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

judicial notice of the course of proceedings of Parliament on the

assumption that it is relevant.

123. There can be no dispute that parliamentary standing

committee report being in the public domain is a public

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

Evidence Act and judicial notice can be taken of such a

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

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

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

understand and appreciate a statutory provision if it is unclear,

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

appreciate what mischief the legislative enactment intended to

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

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

95
(1976) 1 SCC 254
103

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

Needless to emphasise that the right to fair comment is

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

permissible within constitutional parameters, is essential for all

democratic institutions. Fair comments show public concern and,

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

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

democracy is further strengthened. And, in all such

circumstances, the question of parliamentary privilege would not

arise.

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

inasmuch as the petitioners have placed reliance upon the

contents of the parliamentary standing committee report and the

respondents submit that they are forced to controvert the same.

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

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

would be duty bound to afford the respondents an opportunity of

being heard in consonance with the principles of natural justice.

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

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

accept, without contest, the opinion expressed in the
104

parliamentary standing committee report and the facts stated

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

parliamentary standing committee report and the facts stated

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

would be put in an inequitable and disadvantageous position. It

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

adjudicate the contentious facts stated in the report. Ergo,

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

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

thing to say that the report being a public document is

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

challenge.

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

between parliamentary proceedings which are in the nature of

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

Parliament for highlighting the purpose of an enactment or, for

that matter, a parliamentary committee report that had come into

existence prior to the enactment of a law and a

contestable/conflicting matter of ―fact‖ stated in the

parliamentary committee report. It is the parliamentary

proceedings falling within the former category of which Courts
105

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

notice of, whereas, for the latter category of parliamentary

proceedings, the truthfulness of the contestable matter of fact

stated during such proceedings has to be proved in the manner

known to law.

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

judicial notice of parliamentary standing committee reports for a

factual finding will obviously be required to be proved for

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

said report.

127. Taking judicial notice of the Parliamentary Standing

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

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

understanding the statutory provision wherever it is felt so

necessary or to take cognizance of a historical fact that is

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

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

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

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

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

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

negatived.

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

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

to allude to various authorities cited by the petitioners herein

highlighting the occasions where this Court has referred to and

taken note of various Parliamentary Committee reports. In

Catering Cleaners of Southern Railway v. Union of India

and another 96 , the catering cleaners of the Southern Railway

filed a writ petition praying for abolition of the contract labour

system and their absorption as direct employees of the principal

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

Parliamentary Committee Report under the Chairmanship of K.P.

Tewari which had dealt with the question of abolishing the

contract labour system and regularizing the services of the

catering cleaners. The Committee had, inter alia, recommended

that the government should consider direct employment of

catering cleaners by the Railway Administration to avoid their

exploitation.

96 (1987) 1 SCC 700
107

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

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

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

case, referred to the report of Joint Parliamentary Committee

which did not make any recommendation to include ‘Halba-

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

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

reports and recommendations of several committees such as the

Railways Reforms Committee in 1984 which recommended the

formation of new four Zones; the Standing Committee Report of

Parliament on Railway which recommended for creation of new

zones on the basis of work load, efficiency and effective

management and the Rakesh Mohan Committee Report which

had suggested that the formation of additional zones would be of

dubious merit and would add substantial cost and be of little

value to the system.

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

others98, the education policy framed by NCERT was challenged

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

referred, in extensio, to the Parliamentary committee report which

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

had made several recommendations in this regard. After so

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

recommendations made by the Parliamentary Committee are

accepted by the NCERT and are sought to be implemented, it

cannot be stated that its action is arbitrary or unjustified.

131. In M.C. Mehta v. Union of India and others99, this Court

referred to the report of the Standing Committee of Parliament on

Petroleum Natural Gas which expressed concern over the

phenomenal rise of air pollution and made some

recommendations. The Court, in this case, made it clear that it

had mentioned the report only for indicating that the Government

was and is proactively supporting the reduction of vehicular

pollution by controlling the emission norms and complying with

the Bharat Stage standards.

132. In Lal Babu Priyadarshi v. Amritpal Singh 100 , while

dealing with a Trade Mark case under various sections of the

Trade and Merchandise Marks Act, 1958 [repealed by the Trade

Marks Act, 1999 (47 of 1999), this Court referred to the Eighth

Report on the Trade Marks Bill, 1993 submitted by the

Parliamentary Standing Committee which was of the opinion that

99 (2017) 7 SCC 243
100 (2015) 16 SCC 795
109

any symbol relating to Gods, Goddesses or places of worship

should not ordinarily be registered as a trade mark.

133. The petitioners have also referred to other cases such as

Gujarat Electricity Board v. Hind Mazdoor Sabha and

others101, Modern Dental College and Research Centre and

others v. State of Madhya Pradesh and others 102 and

Krishan Lal Gera v. State of Haryana and others103 wherein

also this Court has made a passing reference to reports of the

Parliament Standing Committees.

134. We have, for the sake of completeness, noted the decisions

relied upon by the petitioners to advance their stand. But it is

condign to mention here that in the abovereferred cases, the

question of contest/challenge never emerged. In all the cases, the

situation never arose that warranted any contest amongst the

competing parties for arriving at a particular factual finding.

That being the position, the said judgments, in our considered

opinion, do not render any assistance to the controversy in

question.

135. We have distinguished the said decisions, as we are

disposed to think that a party can always establish his case on

101 (1995) 5 SCC 27
102 (2016) 7 SCC 353
103 (2011) 10 SCC 529
110

the materials on record and the Court can independently

adjudicate the controversy without allowing a challenge to

Parliamentary Standing Committee report. We think so as the

Court has a constitutional duty to strike a delicate balance

between the legislature and judiciary. It is more so when the

issue does not involve a fundamental right that is affected by

parliamentary action. In such a situation, we may deal with the

concept of jurisprudential foundational principle having due

regard to constitutional conscience. The perception of self-evolved

judicial restraint and the idea of jurisprudential progression has

to be juxtaposed for a seemly balance. There is no strait-jacket

formula for determining what constitutes judicial restraint and

judicial progressionism. Sometimes, there is necessity for the

Courts to conceptualise a path that can be a wise middle path.

The middle course between these two views is the concept of

judicial engagement so that the concept of judicial restraint does

not take the colour of judicial abdication or judicial passivism.

Judicial engagement requires that the Courts maintain their

constitutional obligation to remain the sentinel on qui vive. It

requires a vigilant progressive judiciary for the rights and

liberties of the citizens to be sustained. Thus, as long as a
111

decision of a Court is progressive being in accord with the theory

of judicial engagement, the approach would be to ensure the

proper discharge of duty by the Constitutional Courts so as to

secure the inalienable rights of the citizens recognized by the

Constitution. A Constitutional Court cannot abdicate its duty to

allow injustice to get any space or not allow real space to a

principle that has certain range of acceptability. Stradford C.J.,

speaking the tone and tenor in Jajbhay v Cassim 104 , has

observed:-

“Now the Roman-Dutch law, which we must apply,
is a living system capable of growth and
development to allow adaptation to the increasing
complexities and activities of modern civilised life.
The instruments of that development are our own
Courts of law. In saying that, of course, I do not
mean that it is permissible for a Court of law to
alter the law; its function is to elucidate, expound
and apply the law. But it would be idle to deny that
in the process of the exercise of those functions
rules of law are slowly and beneficially evolved.”

136. In Miranda v. Arizona105, the Supreme Court of United

States observed:-

‘That the Court’s holding today is neither compelled
nor even strongly suggested by the language of the
Fifth Amendment, is at odds with American and
English legal history, and involves a departure from
a long line of precedent does not prove either that

104 1939 AD 537 at p 542
105 384 U.S. 436 (1966)
112

the Court has exceeded its powers or that the Court
is wrong or unwise in its present reinterpretation of
the Fifth Amendment. It does, however, underscore
the obvious — that the Court has not discovered or
found the law in making today’s decision, nor has it
derived it from some irrefutable sources; what it has
done is to make new law and new public policy in
much the same way that it has in the course of
interpreting other great clauses of the Constitution.
This is what the Court historically has done. Indeed,
it is what it must do, and will continue to do until
and unless there is some fundamental change in
the constitutional distribution of governmental
powers.”

137. In the Indian context, this Court has recognized the

comprehensive, progressive and engaging role of Constitutional

Courts in a catena of judgments starting from Lakshmi Kant

Pandey v. Union of India106, Vishaka and others v. State of

Rajasthan and others107, Prakash Singh and others v. Union

of India and others108, Common Cause (A Regd. Society) v.

Union of India109 and Shakti Vahini v. Union of India and

others110. In all these judgments, the dynamic and spirited duty

of the Supreme Court has been recognized and it has been

highlighted that this Court ought not to shy away from its

primary responsibility of interpreting the Constitution and other

106 (1984) 2 SCC 244
107 (1997) 6 SCC 241
108 (2006) 8 SCC 1
109
2018 (4) SCALE 1
110
2018 (5) SCALE 51
113

statutes in a manner that is not only legally tenable but also

facilitates the progress and development of the avowed purpose of

the rights-oriented Constitution. The Constitution itself being a

dynamic, lively and ever changing document adapts to the

paradigm of epochs. That being the situation, it is also for this

Court to take a fresh look and mould the existing precepts to suit

the new emerging situations. Therefore, the Constitutional Courts

should always adopt a progressive approach and display a

dynamic and spirited discharge of duties regard being had to the

concepts of judicial statesmanship and judicial engagement, for

they subserve the larger public interest. In the case at hand, the

constitutional obligation persuades us to take the view that the

Parliamentary Standing Committee Report or any Parliamentary

Committee Report can be taken judicial notice of and regarded as

admissible in evidence, but it can neither be impinged nor

challenged nor its validity can be called in question.

Q. Conclusions

138. In view of the aforesaid analysis, we answer the referred

questions in the following manner:-

114

(i) Parliamentary Standing Committee report can be

taken aid of for the purpose of interpretation of a

statutory provision wherever it is so necessary and

also it can be taken note of as existence of a

historical fact.

(ii) Judicial notice can be taken of the Parliamentary

Standing Committee report under Section 57(4) of

the Evidence Act and it is admissible under

Section 74 of the said Act.

(iii) In a litigation filed either under Article 32 or

Article 136 of the Constitution of India, this Court

can take on record the report of the Parliamentary

Standing Committee. However, the report cannot

be impinged or challenged in a court of law.

(iv) Where the fact is contentious, the petitioner can

always collect the facts from many a source and

produce such facts by way of affidavits, and the

Court can render its verdict by way of independent

adjudication.

(v) The Parliamentary Standing Committee report

being in the public domain can invite fair comments
115

and criticism from the citizens as in such a

situation, the citizens do not really comment upon

any member of the Parliament to invite the hazard

of violation of parliamentary privilege.

139. The reference is answered accordingly.

140. Let the Writ Petitions be listed before the appropriate Bench

for hearing.

…..………………………CJI
(Dipak Misra)

….…..………….………….J.

(A.M. Khanwilkar)
New Delhi;

May 09, 2018
REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 558 OF 2012

KALPANA MEHTA ORS …. PETITIONERS

VERSUS

UNION OF INDIA ORS ….RESPONDENTS

WITH

WRIT PETITION (CIVIL) No. 921 OF 2013

J U D G M E N T

Dr D Y CHANDRACHUD, J

This judgment has been divided into sections to facilitate analysis. They are:

A     Reference to the Constitution Bench
B Submissions
C The Constitution
D Parliamentary Standing Committees
E Parliamentary privilege

1
PART A

E.1 UK Decisions
E.2 India
F Separation of powers : a nuanced modern doctrine
G A functional relationship
H Conclusion

A Reference to the Constitution Bench

1 Two public interest petitions instituted before this Court under Article 32

of the Constitution in 2012 and 2013 have placed into focus the process

adopted for licensing vaccines1 to prevent cervical cancer. The petitioners

allege that the process of licensing was not preceded by adequate clinical trials

to ensure the safety and efficacy of the vaccines. Nearly twenty four thousand

adolescent girls are alleged to have been vaccinated in Gujarat and before its

bifurcation, in Andhra Pradesh without following safeguards. The trials are

alleged to have been conducted under the auspices of a project initiated by the

Sixth respondent. The drugs are manufactured and marketed by the Seventh

and Eighth respondents. Each of them produces pharmaceuticals. The petition

calls into question the role of the Drugs Controller General of India and the

Indian Council of Medical Research. The administration of the vaccine is alleged

to have resulted in serious health disorders. Deaths were reported.

1 Human Papillomavirus (HPV)

2
PART A

2 On 12 August 2014, a Bench of two judges formulated the questions

which would have to be addressed in the course of the proceedings.2 They are:

“(i) Whether before the drug was accepted to be used as a
vaccine in India, the Drugs Controller General of India and
the ICMR had followed the procedure for said introduction?

(ii) What is the action taken after the Parliamentary Committee
had submitted the 72nd Report on 30.8.2013?

(iii) What are the reasons for choosing certain places in Gujarat
and Andhra Pradesh?

(iv) What has actually caused the deaths and other ailments
who had been administered the said vaccine?

(v) Assuming this vaccine has been administered, regard being
had to the nature of the vaccine, being not an ordinary one,
what steps have been taken for monitoring the same by the
competent authorities of the Union of India, who are
concerned with the health of the nation as well as the State
Governments who have an equal role in this regard?

(vi) The girls who were administered the vaccine, whether
proper consent has been taken from their
parents/guardians, as we have been apprised at the Bar
that the young girls had not reached the age of majority?

(vii) What protocol is required to be observed/followed,
assuming this kind of vaccination is required to be carried
out?”

3 At the hearing, the petitioners relied upon the 81st Report of the

Parliamentary Standing Committee dated 22 December 2014. The petitioners

sought to place reliance on the Report so as to enable the Court to be apprised

of the facts and to facilitate its conclusions and directions. This was objected to.

4 The issue which arose before the Court was whether a report of a

Parliamentary Standing Committee can be relied upon in a public interest

2 Writ Petition (Civil) No. 558 of 2012

3
PART A

litigation under Article 32 or Article 226. If it could be adverted to, then an allied

issue was the extent to which reliance could be placed upon it and its probative

value. The then Attorney General for India, in response to a request for

assistance, submitted that reports of Parliamentary Standing Committees are

at best an external aid to construction, to determine the surrounding

circumstances or historical facts for understanding the mischief sought to be

remedied by legislation. The Union government urged that reports of

Parliamentary Standing Committees are meant to guide the functioning of its

departments and are a precursor to debates in Parliament. However, those

reports (it was urged) cannot be utilized in court nor can they be subject to a

contest between litigating parties.

5 In an order dated 5 April 2017, a two judge Bench of this Court adverted

to Articles 105 and 122 of the Constitution and observed thus:

“69. The purpose of referring to the aforesaid Articles is that
while exercising the power of judicial review or to place reliance
on the report of the Parliamentary Standing Committee, the
doctrine of restraint has to be applied by this Court as required
under the Constitution. What is argued by the learned counsel
for the petitioners is that there is no question of any kind of
judicial review from this Court or attributing anything on the
conduct of any of the members of the Committee, but to look
at the report for understanding the controversy before us. The
submission “looking at the report,” as we perceive, is nothing
but placing reliance thereupon. The view of a member of
Parliament or a member of the Parliamentary Standing
Committee who enjoys freedom of speech and expression
within the constitutional parameters and the rules or
regulations framed by Parliament inside Parliament or the
Committee is not to be adverted to by the court in a lis.”3

3 Id, at pages 320-321

4
PART A

6 The referring order notes that when a mandamus is sought, the Court has

to address the facts which are the foundation of the case and the opposition, in

response. If a Court were to be called upon to peruse the report of a

Parliamentary Standing Committee, a contestant to the litigation may well seek

to challenge it. Such a challenge, according to the Court, in the form of “an

invitation to contest” the report of a Parliamentary Committee “is likely to disturb

the delicate balance that the Constitution provides between the constitutional

institutions”. Such a contest and adjudication would (in that view) be contrary to

the privileges of Parliament which the Constitution protects. Hence according

to the Court:

“73…we are prima facie of the view that the Parliamentary
Standing Committee report may not be tendered as a
document to augment the stance on the factual score that a
particular activity is unacceptable or erroneous. “

A substantial question involving the interpretation of the Constitution having

arisen, two questions have been referred to the Constitution Bench under Article

145(3):

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

(ii) Whether such a report can be looked at for the purpose of
reference and, if so, can there be restrictions for the purpose
of reference regard being had to the concept of parliamentary
privilege and the delicate balance between the constitutional
institutions that Articles 105, 121 and 122 of the Constitution
conceive?.”4

4 Id, at page 322

5
PART B

B Submissions

7 Leading the submissions on behalf of the petitioners, Mr Harish Salve,

learned Senior Counsel underscored the importance of three constitutional

principles:

(i)     Privileges of Parliament;
(ii) Comity of institutions; and
(iii) Separation of powers.

Based on them, the submission is that reference to what transpires in a

co-equal constitutional institution must be circumspect and consistent with due

deference to and comity between institutions. Freedom of speech and

expression is implicit in the working of every institution and it is that institution

alone which can regulate its own processes. In Parliament, what speakers state

is controlled by the House or, as the case may be, by its Committee and a

falsehood in Parliament is punishable by that institution alone. It has been urged

that if what is stated in a report of a Parliamentary Standing Committee were to

be impeached in a court of law, that would affect the control of the Committee

and of Parliament itself. The functions performed by Parliament and by the

judiciary as two co-equal branches are, it is urged, completely different.

Parliamentary business is either for the purpose of enforcing accountability of

the government or to enact legislation. The function of judicial institutions is

adjudicatory. Courts resolve a lis on objective satisfaction and have a duty to

6
PART B

act judicially. Courts would not, it has been urged, receive as evidence of facts

any material whose truth or integrity cannot be assailed in court.

8 On the above conceptual foundation, Mr Salve urged that the report of a

Parliamentary Standing Committee can be relied upon in a judicial proceeding

in two exceptional situations:

(i) Where it becomes necessary for the court to examine the legislative history

of a statutory provision;

(ii) As a source from which the policy of the government, as reflected in the

statements made by a Minister before the House can be discerned; and

(iii) Reports of Parliamentary Standing Committees are meant for

consideration before Parliament and can only be regarded as “considered

advice” to the House.

Except in the two situations enumerated above, no petition seeking a

mandamus can be brought before the court on the basis of such a report for the

reason that (i) No right can be founded on the recommendation of a House

Committee; and (ii) Relying on such a report may result in a challenge before

the court, impinging upon Parliamentary privileges.

9 Mr K K Venugopal, the learned Attorney General for India has supported

the adoption of a rule of exclusion, based on the privileges of the legislature,

7
PART B

separation of powers and as a matter of textual interpretation of the

Constitution. In his submission:

I Committees of Parliament being an essential adjunct to Parliament, and

their reports being for the purpose of advising and guiding Parliament in

framing laws and the executive for framing policies, it would be a breach

of privilege of Parliament to judicially scrutinize and/or review these

reports for any purpose whatsoever;

II The broad separation of powers, which is a part of the basic structure of

the Constitution of India, would prevent Courts from subjecting the reports

of Parliamentary Standing Committees to scrutiny or judicial review; and

III A conjoint reading of Articles 105 and 122 of the Constitution would

establish that, expressly or by necessary implication, there is a bar on the

Courts from scrutinizing or judicially reviewing the functioning or reports of

the Committees of Parliament.

10 Refuting the submissions which have been urged by the Attorney General

and on behalf of the pharmaceutical companies, Mr. Colin Gonsalves, learned

Senior Counsel urges that there can be no objection to reliance being placed

on the Report of a Parliamentary Standing Committee where (as in the present

case) there is no attempt

(i) to criticize Parliament;

    (ii)    to summon a witness; or

8
PART B

(iii) to breach a privilege of the legislating body.

The Report of a Parliamentary Standing Committee is (it is urged) relied upon

only for the court to seek guidance from it. The court may derive such support

in whichever manner it may best regard in the interest of justice, to advance a

cause which has been brought in a social action litigation. According to Mr

Gonsalves, the core of the submission (urged by Mr Salve) is that because his

clients object to the findings in the Report, it becomes a contentious issue. Mr

Gonsalves submits that this Court should not allow what in substance is an

argument for a black out against the highest court taking notice of the report in

its PIL jurisdiction. The submission is that the Court need not treat any of the

facts contained in the Report as conclusive except those that are permitted by

Section 57 of the Indian Evidence Act 1872. No mandamus is sought that the

recommendations of the Parliamentary Committee be enforced. The Court, it

has been urged, will not be invited to comment upon the Report even if it were

not to agree with the contents of the Report. Learned Counsel urged that the

legislative function of Parliament is distinct from the oversight which it exercises

over government departments. An issue of parliamentary privileges arises when

the court makes a member of Parliament or of a Parliamentary Committee liable

in a civil or criminal action for what is stated in Parliament. Such is not the

position here. Mr Gonsalves submitted that in significant respects, our

Constitution marks a historical break from the English Parliamentary tradition.

India has adopted the doctrine of constitutional supremacy and not

9
PART B

Parliamentary sovereignty, as in the UK. Hence, cases decided under the

English Common Law cannot be transplanted, without regard to context, in

Indian jurisprudence on the subject. The unrestrained use of parliamentary

privileges, it has been urged, stands modified in the Indian context, which is

governed by constitutional supremacy. In matters involving public interest or

issues of a national character, both the institutions – Parliament and the courts

– must act together. As a matter of fact, Parliament has placed the Report of its

Standing Committee in the public domain. It is ironical, Mr Gonsalves urges,

that in the present case, it is the executive which seeks to protect itself from

disclosure in the guise of parliamentary privileges. Finally, it has been urged

that the public interest jurisdiction is not adversarial and constitutes a distinctly

Indian phenomenon. Where the fulfilment and pursuit of a constitutional goal,

national purpose or public interest is in issue, both Parliament and the judiciary

will act in comity. No issue arises here in relation to the separation of powers or

breach of Parliamentary privilege. On the contrary, it has been submitted that

the approach of the respondents is not in accordance with the march of

transparency in our law.

11 Mr Anand Grover, learned Senior Counsel submitted that if there is no

dispute that a certain statement was made before Parliament or, as the case

may be, a Parliamentary Standing Committee, such a statement can be relied

upon as a fact of it being stated in Parliament. The truth of the statement is, in

the submission of the learned Senior Counsel, another and distinct issue. The

10
PART C

Report is uncontentious not as regards the truth of its contents but of it having

been made. The court in the exercise of its power of judicial review will not hold

that an inference drawn by a Parliamentary Committee is wrong. But the court

can certainly look at a statement where there is no dispute of it having been

made.

12 Mr Shyam Divan and Mr Gourab Banerji, learned Senior Counsel have

broadly pursued the same line of argument as the learned Attorney General for

India and Mr Harish Salve.

C     The Constitution

13 Articles 105, 118, 119 and 121 are comprised in Part V of the Constitution

which deals with the Union and form a part of Chapter II, which deals with

Parliament. Article 105 is extracted below:

“105.(1) Subject to the provisions of this Constitution and to
the rules and standing orders regulating the procedure of
Parliament, there shall be freedom of speech in Parliament.

(2) No member of Parliament shall be liable to any proceedings
in any court in respect of anything said or any vote given by
him in Parliament or any committee thereof, and no person
shall be so liable in respect of the publication by or under the
authority of either House of Parliament of any report, paper,
votes or proceedings.

(3) In other respects, the powers, privileges and immunities of
each House of Parliament, and of the members and the
committees of each House, shall be such as may from time to
time be defined by Parliament by law, and, until so defined,
[shall be those of that House and of its members and

11
PART C

committees immediately before the coming into force of section
15 of the Constitution (Forty-fourth Amendment) Act, 1978.]

(4) The provisions of clauses (1), (2) and (3) shall apply in
relation to persons who by virtue of this Constitution have the
right to speak in, and otherwise to take part in the proceedings
of, a House of Parliament or any committee thereof as they
apply in relation to members of Parliament.”

14 The first major principle which emerges from Article 105 is that it expects,

recognizes and protects the freedom of speech in Parliament. Stated in a

sentence, the principle enunciates a vital norm for the existence of democracy.

Parliament represents collectively, through the representative character of its

members, the voice and aspirations of the people. Free speech within the

Parliament is crucial for democratic governance. It is through the fearless

expression of their views that Parliamentarians pursue their commitment to

those who elect them. The power of speech exacts democratic accountability

from elected governments. The free flow of dialogue ensures that in framing

legislation and overseeing government policies, Parliament reflects the diverse

views of the electorate which an elected institution represents.

15 The Constitution recognizes free speech as a fundamental right in Article

19(1)(a). A separate articulation of that right in Article 105(1) shows how

important the debates and expression of view in Parliament have been viewed

by the draftspersons. Article 105(1) is not a simple reiteration or for that matter,

a surplusage. It embodies the fundamental value that the free and fearless

exposition of critique in Parliament is the essence of democracy. Elected

12
PART C

members of Parliament represent the voices of the citizens. In giving expression

to the concerns of citizens, Parliamentary speech enhances democracy. Article

105(1) emphasizes free speech as an institutional value, apart from it being a

part of individual rights. Elected members of the legislature continue to wield

that fundamental right in their individual capacity. Collectively, their expression

of opinion has an institutional protection since the words which they speak are

spoken within the portals of Parliament. This articulated major premise is

however subject to the provisions of the Constitution and is conditioned by the

procedure of Parliament embodied in its rules and standing orders. The

recognition in clause (1) that there shall be freedom of speech in Parliament is

effectuated by the immunity conferred on Members of Parliament against being

liable in a court of law for anything said or for any vote given in Parliament or a

committee. Similarly, a person who publishes a report, paper, votes or

proceedings under the authority of Parliament is protected against liability in

any court. In other respects – that is to say, on matters other than those falling

under clause (1) and (2), Parliament has been empowered to define the powers,

privileges and immunities of each of its Houses and of its members and

committees. Until Parliament does so, those powers, privileges and immunities

are such as existed immediately before the enforcement of the 44th amendment

to the Constitution5. Clause (4) of Article 105 widens the scope of the protection

by making it applicable “in relation to persons” who have a right to speak in or

to take part in the proceedings before the House or its committees. The

5 The Constitution (44th amendment) Act, 1978 came into force from 20 June, 1979.

13
PART C

protection afforded to Members of Parliament is extended to all such persons

as well. Committees of the Houses of Parliament are established by and under

the authority of Parliament. They represent Parliament. They are comprised

within Parliament and are as much, Parliament.

16 Article 118 deals with the Rules of Procedure of Parliament:

“118.(1) Each House of Parliament may make rules for
regulating, subject to the provisions of this Constitution, its
procedure and the conduct of its business.

(2) Until rules are made under clause (1), the rules of
procedure and standing orders in force immediately before the
commencement of this Constitution with respect to the
Legislature of the Dominion of India shall have effect in relation
to Parliament subject to such modifications and adaptations as
may be made therein by the Chairman of the Council of States
or the Speaker of the House of the People, as the case may
be.

(3) The President, after consultation with the Chairman of the
Council of States and the Speaker of the House of the People,
may make rules as to the procedure with respect to joint sittings
of, and communications between, the two Houses.

(4) At a joint sitting of the two Houses the Speaker of the House
of the People, or in his absence such person as may be
determined by rules of procedure made under clause (3), shall
preside.”

The procedure and conduct of business of Parliament are governed by the rules

made by each House. The rule making authority is subject only to the provisions

of the Constitution. Until rules are framed, the procedure of Parliament was to

be governed by the rules of procedure and Standing Orders which applied to

the legislature of the Dominion of India immediately before the commencement

of the Constitution (subject to adaptations and modifications). Rules of

14
PART C

procedure for joint sittings of the two Houses of Parliament and in regard to

communications between them are to be framed by the President in

consultation with the Chairman of the Rajya Sabha and the Speaker of the Lok

Sabha.

17 Article 119 provides for regulation by law of the procedure in Parliament

in relation to financial business. Article 119 provides thus:

“119.Parliament may, for the purpose of the timely completion
of financial business, regulate by law the procedure of, and the
conduct of business in, each House of Parliament in relation to
any financial matter or to any Bill for the appropriation of
moneys out of the Consolidated Fund of India, and, if and so
far as any provision of any law so made is inconsistent with
any rule made by a House of Parliament under clause (1) of
article 118 or with any rule or standing order having effect in
relation to Parliament under clause (2) of that article, such
provision shall prevail.”

Article 119 thus embodies a special provision which enables Parliament to

regulate the procedure for and conduct of business in each House in relation to

financial matters or for appropriation of monies from the Consolidated Fund.

18 Article 122 contains a bar on courts inquiring into the validity of any

proceedings of Parliament on the ground of an irregularity of procedure:

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

(2) No officer or member of Parliament in whom powers are
vested by or under this Constitution for
regulating procedure or the conduct of business, or for
maintaining order, in Parliament shall be subject to the

15
PART C

jurisdiction of any court in respect of the exercise by him of
those powers.”

Article 122 protects the proceedings in Parliament being questioned on the

ground of an irregularity or procedure. In a similar vein, a Member of Parliament

or an officer vested with authority under the Constitution to regulate the

procedure or the conduct of business (or to maintain order) in Parliament is

immune from being subject to the jurisdiction of any Court for the exercise of

those powers. Those who perform the task – sometimes unenviable – of

maintaining order in Parliament are also protected, to enable them to discharge

their functions dispassionately.

19 The provisions contained in Chapter II of Part V are mirrored, in the case

of the State Legislatures, in Chapter III of Part VI. The corresponding provisions

in regard to State Legislatures are contained in Articles 194, 208, 209 and 212.

20 The fundamental principle which the Constitution embodies is in terms of

its recognition of and protection to the freedom of speech in Parliament.

Freedom of speech has been entrenched by conferring an immunity against

holding a Member of Parliament liable for what has been spoken in Parliament

or for a vote which has been tendered. The freedom to speak is extended to

other persons who have a right to speak in or take part in the proceedings of

Parliament. Parliament is vested with the authority to regulate its procedures

and to define its powers, privileges and immunities. The same protection which

16
PART D

extends to Parliamentary proceedings is extended to proceedings in or before

the Committees constituted by each House. Parliament has been vested with a

complete and exclusive authority to regulate its own procedure and the conduct

of its business.

21 While making the above provisions, the Constitution has carefully

engrafted provisions to ensure institutional comity between Parliament and the

judiciary. Under Article 121, the conduct of a Judge of the Supreme Court or of

a High Court in the discharge of duties cannot be discussed in Parliament

(except upon a motion for removal). Article 211 makes a similar provision in

regard to the state legislatures.

D     Parliamentary Standing Committees

22 Parliamentary Committees exist both in the Westminster form of

government in the United Kingdom as well in the Houses of Parliament in India.

In the UK, Select Committees have emerged as instruments through which

Parliament scrutinizes the policies and actions of government and enforces

accountability of government and its officers. Select committees are composed

of specifically nominated members of Parliament and exercise the authority

which the House delegates to them. The role of select committees has been set

17
PART D

forth in Erskine May’s Treatise on The Law, Privileges, Proceedings and

Usage of Parliament6 :

“Select committees are appointed by the House to perform a
wide range of functions on the House’s behalf. Most notably
they have become over recent years the principal mechanism
by which the House discharges its responsibilities for the
scrutiny of government policy and actions. Increasingly this
scrutiny work has become the most widely recognized and
public means by which Parliament holds government Ministers
and their departments to account.”

The scope of deliberations or inquiries before a Select Committee is defined in

the order by which the committee is appointed. When a Bill is referred to a

Select Committee, the Bill constitutes the order of reference7. Select

committees are a microcosm of the House. During the course of their work,

Select Committees rely upon documentary and oral evidence8:

“Once received by the committee as evidence, papers
prepared for a committee become its property and may not be
published without the express authority of the committee.

Some committees have agreed to a resolution at the beginning
of an inquiry authorizing witnesses to publish their own
evidence.”

Evidence which has been collected during the course of an inquiry is published

with the report of the committee9:

“It is usual practice of committees to publish the evidence
which they have taken during the course of an inquiry with the
report to which the evidence is relevant. In the case of longer
inquiries, the evidence may be separately published during the
course of the inquiry. In such cases, however, that evidence
may be published again with the report. Additionally,

6 Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, (Lexis Nexis, 24 th edn.,
2011), 37.

7 Id, at pages 805-806.

8 Erskine May, at page 818.

9 Erskine May, at page 825.

18
PART D

committees may take evidence with no intention of producing
a subsequent report and publish it without comment.”

A Select committee decides when to publish any report which it has agreed10.

Article 105 of the Indian Constitution recognizes committees of the Houses of

Parliament. Rules of Procedure of the Lok Sabha and the Rajya Sabha framed

under Article 118(1) of the Constitution inter alia provide for the organization

and working of these committees11.

23 The rules governing procedure and the conduct of business in the Rajya

Sabha provide for the constitution of the committees of the House. Chapter IX

of the Rules contains provisions relating to legislation. Provisions have been

made for Bills which originate in the Rajya Sabha and for those which originate

in the Lok Sabha and are transmitted to the Rajya Sabha. Under Rule 72,

members of a Select Committee for a Bill are appointed by the Rajya Sabha

when a motion that the Bill be referred to a Select Committee is made. Rule 84

empowers the Select Committee to require the attendance of witnesses or the

production of papers or records. The Select Committee can hear expert

evidence and representatives of special interests affected by the measure.

Documents submitted to the Committee cannot be withdrawn or altered without

its knowledge and approval. The Select Committee, under Rule 85, is

empowered to decide upon its procedure and the nature of questions which it

10
Erskine May, at page 838
11Rules of Procedure and Conduct of Business in Lok Sabha, (Lok Sabha Secretariat, 15 th edn., April 2014).
Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha), (published by the Secretary
General, 9th edn., August 2016).

19
PART D

may address to a witness called before it. Rule 86 provides for the printing and

publication of evidence and empowers the Committee to direct that the

evidence or a summary be laid on the table. Evidence tendered before the

Select Committee can only be published after it has been laid on the table. The

Select Committee prepares its report on the Bill referred to it, under Rule 90.

Under Rule 91, the report of the Select Committee on a Bill, together with

minutes of dissent, is presented to the Rajya Sabha by the Chairperson of the

Committee. Under Rule 92, the Secretary General must print every report of a

Select Committee. The report together with the Bill proposed by the Select

Committee has to be published in the Gazette. The rules contemplate the

procedure to be followed in the Rajya Sabha for debating and discussing the

report and for considering amendments, leading up to the eventual passage of

the Bill. In a manner similar to reference of Bills originating in the Rajya Sabha

to Select Committees, Bills which are transmitted from the Lok Sabha to the

Rajya Sabha may be referred to a Select Committee under Rule 125, if a motion

for that purpose is carried.

24 Chapter XXII of the Rules contains provisions in regard to Department

related Parliamentary Standing Committees. Rule 268 stipulates that there shall

be Parliamentary Standing Committees related to Ministries/Departments. The

Third schedule elucidates the name of each Committee and the

Ministries/Departments which fall within its purview. Under Rule 269, each such

Committee is to consist of not more than 31 members: 10 to be nominated by

20
PART D

the Chairperson from the Members of the Rajya Sabha and 21 to be nominated

by the Speaker from the Members of the Lok Sabha. Rule 270 specifies the

functions of the Standing Committees:

“270. Functions

Each of the Standing Committees shall have the following
functions, namely:-

(a) to consider the Demands for Grants of the related
Ministries/Departments and report thereon. The report
shall not suggest anything of the nature of cut motions;

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

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

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

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

Rule 274 envisages that the report of the Standing Committee “shall be based

on broad consensus” though a member may record a dissent. The report of the

Committee is presented to the Houses of Parliament. Under Rule 275,

provisions applicable to Select Committees on Bills apply mutatis mutandis to

the Standing Committees. Rule 277 indicates that the report of a Standing

Committee is to have persuasive value and is treated as advice to the House:

“277. Reports to have persuasive value

The report of a Standing Committee shall have persuasive
value and shall be treated as considered advice given by the
Committee.”

21
PART D

Department related Parliamentary Standing Committees are Committees of the

Houses of Parliament. The Committees can regulate their procedure for

requiring the attendance of persons and for the production of documents. The

Committees can hear experts or special interests. These Committees ensure

parliamentary oversight of the work of the ministries/departments of

government. As a part of that function, each Committee considers demands for

grants, examines Bills which are referred to it, considers the annual reports of

the ministry/department and submits reports on national long-term policy

documents, when they have been referred for consideration. The reports of

these Committees are published and presented to the Houses of Parliament.

They have a persuasive value and are advice given by the Committee to

Parliament.

25 Besides the Department related Standing Committees, there is a General

Purposes Committee (Chapter XXIII) whose function is to consider and advise

on matters governing the affairs of the House, referred by the Chairperson.

Chapter XXIV provides for the constitution of a Committee on Ethics to oversee

“the moral and ethical conduct” of members, prepare a code of conduct,

examine cases of alleged breach and to tender advise to members on questions

involving ethical standards.

22
PART E

E Parliamentary privilege

E.1 UK Decisions

26 In the UK, a body of law has evolved around the immunity which is

afforded to conduct within or in relation to statements made to Parliament

against civil or criminal liability in a court of law. The common law also affords

protection against the validity of a report of a Select Committee being

challenged in a court.

27 Article 9 of the Bill of Rights, 1689 declares that:

“..That the freedom of speech and debates or proceedings in
Parliament, ought not to be impeached or questioned in any
court or place out of Parliament…”

Construed strictly, the expression “out of Parliament” will effectively squelch any

discussion of the proceedings of Parliament, outside it. This would compromise

to the need for debate and discussion on matters of governance in a

democracy. Hence, there has been an effort to bring a sense of balance: a

balance which will ensure free speech within Parliament but will allow a free

expression of views among citizens. Both are essential to the health of

democracy.

23

PART E

Article 9 has provided the foundation for a line of judicial precedent in the

English Courts. In 1884, the principle was formulated In Bradlaugh v

Gossett12:

“The House of Commons is not subject to the control of Her
Majesty’s Courts in its administration of that part of the Statute
law which has relation to its internal procedure only. What is
said or done within its walls cannot be inquired into a court of
law. A resolution of the House of Commons cannot change the
law of the land. But a court of law has no right to inquire into
the propriety of a resolution of the House restraining a member
from doing within the walls of the House itself something which
by the general law of the land he had a right to do.”

In Dingle v Associated Newspapers Ltd13, the above formulation was held to

constitute “a clear affirmation of the exclusive right of Parliament to regulate its

own internal proceedings”. Applying that principle, the Queen’s Bench Division

ruled that the report of a Select Committee of the House of Commons could not

be impugned outside Parliament. This principle was applied in Church of

Scientology of California v Johnson-Smith14, when an action for libel was

brought against a Member of Parliament for a statement made during the

course of a television interview. In order to refute the defendants’ plea of fair

comment, the plaintiff sought to prove malice by leading evidence of what had

taken place in Parliament. Rejecting such an attempt, the court adverted to the

following statement of principle in Blackstone:

“The whole of the law and custom of Parliament has its origin
from this one maxim, “that whatever matter arises concerning
either House of Parliament ought to be examined, discussed,
and adjudged in that House to which it relates, and not
elsewhere.”

12 (1884) 12 Q.B.D. 271
13 (1960) 2 Q.B. 405
14 (1972) 1 Q.B. 522

24
PART E

Reiterating that principle, the court held:

“…what is said or done in the House in the course of any
proceedings there cannot be examined outside Parliament for
the purpose of supporting a cause of action even though the
cause of action itself arises out of something done outside the
House.”

The decision involved a libel action brought against a Member of Parliament for

a statement made outside. The court rejected an attempt to rely upon what was

stated in Parliament to establish a case of malice against the defendant.

28 In Pepper (Inspector of Taxes) v Hart15, Lord Browne-Wilkinson held

for the House of Lords that there was a valid reason to relax the conventional

rule of exclusion under which reference to Parliamentary material, as an aid to

statutory construction, was not permissible. The learned Law Lord held:

“In my judgment, subject to the questions of the privileges of
the House of Commons, reference to Parliamentary material
should be permitted as an aid to the construction of legislation
which is ambiguous or obscure or the literal meaning of which
leads to an absurdity. Even in such cases references in court
to Parliamentary material should only be permitted where such
material clearly discloses the mischief aimed at or the
legislative intention lying behind the ambiguous or obscure
words.”

Holding that such a relaxation would not involve the court criticizing what has

been said in Parliament since the court was only giving effect to the words used

by the Minister, the court held that the exclusionary rule should be relaxed to

permit reference to Parliamentary materials where:

“(a) legislation is ambiguous or obscure, or leads to an
absurdity; (b) the material relied upon consists of one or more

15 (1992) 3 W.L.R. 1032

25
PART E

statements by a Minister or other promoter of the Bill together
if necessary with such other Parliamentary material as is
necessary to understand such statements and their effect; (c)
the statements relied upon are clear.”

29 The decision of the Privy Council in Richard William Prebble v

Television New Zealand (“Prebble”)16 arose from a case where, in a

television programme transmitted by the defendant, allegations were levelled

against the Government of New Zealand, involving the sale of state owned

assets to the private sector while the plaintiff was the Minister of the department.

In his justification, the defendant alleged that the plaintiff had made statements

in the House calculated to mislead. Lord Browne-Wilkinson held that the

defendant was precluded from questioning a statement made by the plaintiff

before the House of Parliament. The principle was formulated thus:

“In addition to article 9 itself, there is a long line of authority
which supports a wider principle, of which
article 9 is merely
one manifestation, viz. that the courts and Parliament are both
astute to recognize their respective constitutional roles. So far
as the courts are concerned they will not allow any challenge
to be made to what is said or done within the walls of
Parliament in performance of its legislative functions and
protection of its established privileges: Burdett v. Abbot (1811)
14 East 1; Stockdale v. Hansard (1839) 9 Ad. EI. 1;
Bradlaugh v. Gossett (1884) 12 Q.B.D. 271; Pickin v. British
Railways Board (1974) A.C. 765;
Pepper v. Hart (1993) A.C.

593. As Blackstone said in his Commentaries on the Laws of
England, 17th ed. (1830), vol. 1, p.163:

‘the whole of the law and custom of Parliament
has its origin from this one maxim, ‘that
whatever matter arises concerning either
House of Parliament, ought to be examined,
discussed, and adjudged in that House to
which it relates, and not elsewhere.”

16 (1994) 3 W.L.R. 970

26
PART E

The Privy Council held that cross-examination based on the Hansard was

impermissible.

In the course of its decision in Prebble, the Privy Council adverted to an

Australian judgment of the New South Wales Supreme Court in Reg. v

Murphy (“Murphy”)17 which had allowed a witness to be cross examined on

the basis of evidence given to a Select Committee on the ground that Article 9

did not prohibit cross-examination to show that the statement of the witness

before the committee was false. In order to overcome the situation created by

the decision, the Australian legislature enacted the Parliamentary Privileges,

Act 1987. Section 16(3) introduced the following provisions:

“(3) In proceedings in any court or tribunal, it is not lawful for
evidence to be tendered or received, questions asked or
statements, submissions or comments made, concerning
proceedings in Parliament, by way of, or for the purpose of: (a)
questioning or relying on the truth, motive, intention or good
faith of anything forming part of those proceedings in
Parliament; (b) otherwise questioning or establishing the
credibility, motive, intention or good faith of any person; or (c)
drawing, or inviting the drawing of, inferences or conclusions
wholly or partly from anything forming part of those
proceedings in Parliament.”

In Prebble, the Privy Council held that Section 16(3) contains “what, in the

opinion of their lordships, is the true principle to be applied”. The Privy Council

held that the Australian view in Murphy was not correct, so far as the rest of the

Commonwealth is concerned, because it was in conflict with a long line of

17(1986) 64 A.L.R. 498

27
PART E

authority that courts will not allow any challenge to what is said or done in

Parliament.

The Defamation Act, 1996 (UK) contained a provision in Section 13 under which

an individual litigant in a defamation case could waive Parliamentary privilege.

The report of the Joint Committee observed that the provision “undermined the

basis of privilege: freedom of speech was the privilege of the House as a whole

and not of the individual Member in his or her own right, although an individual

Member could assert and rely on it.” The waiver provision was deleted on the

ground that the privilege belongs to the House and not to an individual member.

The impact of the provisions of Section 13 of the Defamation Act, 1996 was

dealt with in a 2011 decision of the House of Lords in Hamilton v AI Fayed

(“Hamilton”)18. The defendant had alleged that as a Member of Parliament, the

plaintiff had accepted cash from him for asking questions on his behalf in the

House of Commons. The plaintiff commenced an action for defamation against

the defendant, waiving his parliamentary privileges pursuant to Section 13 of

the Defamation Act, 1996. Lord Browne-Wilkinson dwelt on parliamentary

privileges, which prohibit the court from questioning whether a witness before

Parliament had misled it. The House of Lords held that any attempt to cross-

examine the defendant to the effect that he had lied to a Parliamentary

committee when he had stated that he had paid money for questions would

have infringed parliamentary privileges. However, under Section 13, the plaintiff

18 (2001) 1 A.C. 395

28
PART E

could waive his own protection from Parliamentary privilege. The consequence

was thus:

“The privileges of the House are just that. They all belong to
the House and not to the individual. They exist to enable the
House to perform its functions. Thus
section 13(1) accurately
refers, not to the privileges of the individual MP, but to “the
protection of any enactment or rule of law” which prevents the
questioning of procedures in Parliament. The individual MP
enjoys the protection of parliamentary privileges. If he waives
such protection, then under
section 13(2) any questioning of
parliamentary proceedings (even by challenging
“findings…made about his conduct”) is not to be treated as a
breach of the privileges of Parliament.”

The effect of Section 13 was that if a Member of Parliament waived the

protection, an assail of proceedings before Parliament would not be regarded

as a breach of privilege.

30 The decision in Hamilton is significant for explaining precisely the

relationship between parliamentary privilege and proceedings in a Court which

seek to challenge the truth or propriety of anything done in parliamentary

proceedings. As the Court holds:

“The normal impact of parliamentary privilege is to prevent the
court from entertaining any evidence, cross-examination or
submissions which challenge the veracity or propriety of
anything done in the course of parliamentary proceedings.

Thus, it is not permissible to challenge by cross-examination in
a later action the veracity of evidence given to a parliamentary
committee.”

But for the provisions of Section 13, evidence by Hamilton that he had not

received money for questions would come into conflict with the evidence

tendered by AI Fayed which was accepted by the Parliamentary Committees.

29
PART E

Hence it would have been impermissible to cross-examine Al Fayed to the effect

that he had falsely stated before the Parliamentary Committees that he had paid

money for questions. Such a consequence was obviated by the waiver

provisions of Section 13.

31 In Toussaint v Attorney General of Saint Vincent and the Grenadines

(“Toussaint”)19, the Privy Council dealt with a case where a claim was brought

against the government by an individual claiming that the acquisition of his land

was unlawful. In support, he referred to a speech of the Prime Minister in

Parliament and a transcript taken from the video-tape of a televised debate. The

submission was that the true reason for the acquisition of the land, as evident

from the speech of the Prime Minister, was political. Adverting to Prebble, Lord

Mance, speaking for the Privy Council, noted that there were three principles

involved: the need to ensure the free exercise of powers by the legislature on

behalf of the electors; the need to protect the interest of justice; and the interest

of justice in ensuring that all relevant evidence is available to the courts. The

Privy Council held that it was permissible to rely upon the speech of the Prime

Minister though the attempt was to demonstrate an improper exercise of power

for extraneous purposes. As Lord Mance observed:

“In such cases, the minister’s statement is relied upon to
explain the conduct occurring outside Parliament, and the
policy and motivation leading to it. This is unobjectionable
although the aim and effect is to show that such conduct
involved the improper exercise of a power “for an alien purpose
or in a wholly unreasonable manner”: Pepper v Hart, per Lord

19 (2007) 1 W.L.R. 2825

30
PART E

Browne-Wilkinson at p 639 A. The Joint Committee expressed
the view that Parliament should welcome this development, on
the basis that “Both parliamentary scrutiny and judicial review
have important roles, separate and distinct, in a modern
democratic society” (para 50) and on the basis that “The
contrary view would have bizarre consequences”, hampering
challenges to the “legality of executive decisions… by ring-
fencing what ministers said in Parliament, and making
“ministerial decisions announced in Parliament…less readily
open to examination than other ministerial decisions”: para 51.

The Joint Committee observed, pertinently, that

“That would be an ironic consequence of
article 9. Intended to protect the integrity of the
legislature from the executive and the courts,
article 9 would become a source of protection
of the executive from the courts.””

The Prime Minister’s statement in the House was “relied on for what it says,

rather than questioned or challenged”. This was permissible.

32 Toussaint is an important stage in the development of the law. A

statement made in Parliament by a Minister could be relied upon, not just to

explain the history of a law. Where there is a challenge to the exercise of

governmental authority on the ground that it is actuated by extraneous reasons,

a statement by a Minister in Parliament could be used in court in regard to

conduct outside Parliament. The challenge is not to a statement made in

Parliament but to governmental action outside. The statement would be relevant

to question an abuse of power by government.

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PART E

33 In Regina (Bradley and Others) v Secretary of State for Work and

Pensions (Attorney General intervening)20, the Court of Appeal visited the

statement in Prebble that Section 16(3) of the Parliamentary Privileges Act,

1987 in Australia declared the true effect of Article 9 of the Bill of Rights and

that Section 16(3) contained “the true principle to be applied” in the case.

Holding that the dictum in Prebble appears to be too wide, it was held:

“…But paragraph (c), if read literally, is extremely wide. It would
seem to rule out reliance on or a challenge to a ministerial
statement itself on judicial review of the decision embodied in
that statement (which was permitted in R v Secretary of State
for the Home Department, Ex p Brind [1991] 1 AC 696, and to
which no objection has been raised in the present case), or to
resolve an ambiguity in legislation (Pepper v Hart [1993] AC

593), or to assist in establishing the policy objectives of an
enactment (Wilson v First County Trust Ltd (No 2) [2004] 1 AC

816). It would also prohibit reliance on report of the Joint
Committee on Human Rights, which, as Mr Lewis’s
submissions rightly state, have been cited in a number of
appellate cases in this jurisdiction: a very recent example is R
v F [2007] QB 960 para 11. As Lord Nicholls of Birkenhead
observed in Wilson’s case [2004] 1 AC 816, para 60:

“there are occasions when courts may properly
have regard to ministerial and other statements
made in Parliament without in any way
‘questioning’ what has been said in Parliament,
without giving rise to difficulties inherent in treating
such statements as indicative of the will of
Parliament, and without in any other way
encroaching upon parliamentary privilege by
interfering in matters properly for consideration
and regulation by Parliament alone.”

I therefore do not treat the text of paragraph(c) of the Australian
statute as being a rule of English law.”

The report of a Select Committee, it was observed, is a written document

published after a draft report has been placed before and approved by the

20(2007) EWHC 242 (Admin)

32
PART E

Committee. Hence, it was unlikely that the use of such a report in the

submissions of a party in civil litigation would have inhibited the Committee from

expressing its view. The freedom of speech in Parliament principle would not

be affected, since there would be no inhibition of that freedom.

34 The decision of the Administrative Court in the UK in Office of

Government Commerce v Information Commissioner (Attorney General

intervening)21 involved a case where a department of government had carried

out reviews into an identity card programme. The case involved a claim for the

disclosure of information. The Court observed that the law of parliamentary

privilege is based on two principles: the need for free speech in Parliament and

separation of powers between the legislature and the judiciary:

“...the law of parliamentary privilege is essentially based on two
principles. The first is the need to avoid any risk of interference
with free speech in Parliament. The second is the principle of
the separation of powers, which in our constitution is restricted
to the judicial function of government and requires the
executive and the legislature to abstain from interference with
the judicial function, and conversely requires the judiciary not
to interfere with or to criticise the proceedings of the legislature.
These basic principles lead to the requirement of mutual
respect by the courts for the proceedings and decisions of the
legislature and by the legislature (and the executive) for the
proceedings and decisions of the courts.

Conflicts between Parliament and the courts are to be avoided.

The above principles lead to the conclusion that the courts
cannot consider allegations of impropriety or inadequacy or
lack of accuracy in the proceedings of Parliament. Such
allegations are for Parliament to address, if it thinks fit, and if
an allegation is well founded any sanction is for Parliament to
determine. The proceedings of Parliament include

21(2009) 3 W.L.R. 627

33
PART E

parliamentary questions and answers. These are not matters
for the courts to consider.”

Yet, the Court also noticed the limitation of the above principles, when

proceedings in Parliament are relied upon simply as relevant historical facts or

to determine whether the legislation is incompatible with the European

Convention for the Protection of Human Rights which was embodied in the

Human Rights Act 1998 (“HRA”) in the UK. In that context the Court observed:

“However, it is also important to recognise the limitations of
these principles. There is no reason why the courts should not
receive evidence of the proceedings of Parliament when they
are simply relevant historical facts or events; no “questioning”
arises in such a case… Similarly, it is of the essence of the
judicial function that the courts should determine issues of law
arising from legislation and delegated legislation. Thus, there
can be no suggestion of a breach of parliamentary privilege if
the courts decide that legislation is incompatible with the
European Convention for the Protection of Human Rights and
Fundamental Freedoms: by enacting the
Human Rights Act
1998…”

The Court held that the conclusions of the report of a Committee that had led to

legislation could well be relied upon since the purpose of the reference is either

historical or made with a view to ascertaining the mischief at which the

legislation was aimed. If the evidence given to a Committee is uncontentious –

the parties being in agreement that it is true and accurate - there could be no

objection to it being taken into account. What the Tribunal could not do was to

refer to contentious evidence given to a Parliamentary Committee or the finding

of the Committee on an issue which the Tribunal had to determine.

34

PART E

35 The decision indicates a calibrated approach to Parliamentary privilege

consistent with the enactment of the HRA. The doctrine of incompatibility

envisages a role for courts in the UK to assess the consistency of the provisions

of law with reference to the standards of the European Convention.

Parliamentary supremacy does not allow the court to strike down legislation.

Yet the emergence of standards under the HRA has allowed for a distinct

adjudicatory role: to determine the compatibility of domestic law with reference

to European Convention standards, adopted by the HRA. To hold that this has

not altered the role of courts vis-à-vis Parliamentary legislation would be to miss

a significant constitutional development.

Wheeler v The Office of the Prime Minister22 was a case where there was a

challenge to a decision brought by the government to give notice of the intention

of the UK to participate in the Council Framework Decision on the European

arrest warrants. It was claimed that the government was precluded from issuing

a notification of its intention without holding a referendum. Holding that the plea

would breach Parliamentary privilege the Court held:

“…In substance, however, the claim is that, unless the House
of Commons organises its business in a particular way, and
arranges for a vote in a particular form, the courts must
intervene and either grant a declaration or issue an order
prohibiting the government from taking certain steps unless
and until there is such a vote. In my judgment, that would
involve the courts impermissibly straying from the legal into the
political realm.”

22(2014) EWHC 3815 (Admin)

35
PART E

The plea, the Court ruled, would amount to the Court questioning things done

in Parliament and instead of facilitating the role of Parliament, the Court would

be usurping it.

In Wilson v First County Trust Ltd23 the House of Lords observed that the

Human Rights Act 1998 had obligated the Court to exercise a new role in

respect of primary legislation. Courts were required to evaluate the effect of

domestic legislation upon rights conferred by the European Convention and

where necessary; to make a declaration of incompatibility. While doing so, the

Court would primarily construe the legislation in question. Yet, the practical

effect of a statutory provision may require the court to look outside the statute.

The court would be justified in looking at additional background information to

understand the practical impact of a statutory measure on a Convention right

and decide upon the proportionality of a statutory provision. In that context, the

Court held:

“This additional background material may be found in
published documents, such as a government white paper. If
relevant information is provided by a minister or, indeed, any
other member of either House in the course of a debate on a
Bill, the courts must also be able to take this into account. The
courts, similarly, must be able to have regard to information
contained in explanatory notes prepared by the relevant
government department and published with a Bill. The courts
would be failing in the due discharge of the new role assigned
to them by Parliament if they were to exclude from
consideration relevant background information whose only
source was a ministerial statement in Parliament or an
explanatory note prepared by his department while the Bill was
proceeding through Parliament. By having regard to such
material, the court would not be “questioning” proceedings in

23(2004) 1 AC 816

36
PART E

Parliament or intruding improperly into the legislative process
or ascribing to Parliament the views expressed by a minister.
The court would merely be placing itself in a better position to
understand the legislation.

To that limited extent there may be occasion for the courts,
when conducting the statutory “compatibility” exercise, to have
regard to matters stated in Parliament. It is a consequence
flowing from the
Human Rights Act. The constitutionally
unexceptionable nature of this consequence receives some
confirmation from the view expressed in the unanimous report
of the parliamentary Joint Committee on Parliamentary
Privilege (1999) (HL Paper 43-I, HC 214-I), p 28, para 86, that
it is difficult to see how there could be any objection to the court
taking account of something said in Parliament when there is
no suggestion the statement was inspired by improper motives
or was untrue or misleading and there is no question of legal
liability.”

Recourse to such background information would enable the court to better

understand the law and would not amount to a breach of parliamentary

privilege.

36 The decision of the Privy Council in Owen Robert Jennings v Roger

Edward Wyndham Buchanan24 arose from the Court of Appeal in New

Zealand. The judgment recognises that while the protection conferred by Article

9 of the Bill of Rights should not be whittled away, yet as the Joint Committee

on Parliamentary privileges (Chaired by Lord Nicholls of Birkenhead) observed,

freedom to discuss parliamentary proceedings is necessary in a democracy:

“Freedom for the public and the media to discuss parliamentary
proceedings outside Parliament is as essential to a healthy
democracy as the freedom of members to discuss what they
choose within Parliament.”

24(2004) UKPC 36

37
PART E

Media reporting of Parliamentary proceedings, the Court held, has been an

important instrument of public debate. Hence the freedom of the Members of

Parliament to discuss freely within its portals must be weighed with the freedom

of the public to discuss and debate matters of concern to them:

“As it is, parliamentary proceedings are televised and
recorded. They are transcribed in Hansard. They are reported
in the press, sometimes less fully than parliamentarians would
wish. They form a staple of current affairs and news
programmes on the radio and television. They inform and
stimulate public debate. All this is highly desirable, since the
legislature is representative of the whole nation. Thus, as the
Joint Committee observed in its executive summary (page 1):

“This legal immunity is comprehensive and
absolute.
Article 9 should therefore be confined to
activities justifying such a high degree of
protection, and its boundaries should be clear.””

These observations reflect a concern to define the boundaries of the immunities

under Article 9 in clear terms. While recognizing the absolute nature of the

immunity, its boundaries must “be confined to activities justifying such a high

degree of protection”. The right of Members of Parliament to speak their minds

in Parliament without incurring a liability is absolute. However, that right is not

infringed if a member, having spoken and in so doing defamed another person,

thereafter chooses to repeat his statement outside Parliament. In such

circumstances, the privilege may be qualified. While it is necessary that the

legislature and the courts do not intrude into the spheres reserved to the other,

a reference to Parliamentary records to prove that certain words were in fact

uttered is not prohibited.

“In a case such as the present, however, reference is made to
the parliamentary record only to prove the historical fact that

38
PART E

certain words were uttered. The claim is founded on the later
extra-parliamentary statement. The propriety of the member’s
behaviour as a parliamentarian will not be in issue. Nor will his
state of mind, motive or intention when saying what he did in
Parliament.”

37 The evolution of the law in the UK indicates the manner in which the

protection under Article 9 of the Bill of Rights has been transformed. There are

essentially three principles which underlie the debate. The first is the importance

of the freedom of speech in Parliament. The absolute protection which is

afforded to what is done or spoken by a Member of Parliament in Parliament is

an emanation of the need to protect freedom of speech in Parliament. The

second principle which is at work is the separation of powers between

Parliament and the courts. This principle recognizes that liability for a falsehood

spoken in Parliament lies within the exclusive control of Parliament. A Member

of Parliament cannot be held to account in a court of law for anything which is

said or spoken in Parliament. A speech in Parliament would not attract either a

civil or criminal liability enforceable in a court of law. The third principle

emphasises that debates in Parliament have a public element. Public debate is

the essence of and a barometer to the health of democracy. Though the

privilege which attaches to a speech in Parliament is absolute, the immunity

extends to those activities within Parliament, which justify a high degree of

protection. As Parliamentary proceedings have come to be widely reported,

published and televised, the common law has come to recognize that a mere

reference to or production of a record of what has been stated in Parliament

does not infringe Article 9 of the Bill of Rights. In other words, a reference to

39
PART E

Parliamentary record to prove a historical fact that certain words were spoken

is not prohibited. What is impermissible is to question the truthfulness or veracity

of what was stated before Parliament in any forum including a court, outside

Parliament. Nor can a Member of Parliament be cross-examined in a

proceeding before the court with reference to what was stated in Parliament.

The validity of an Act of Parliament or of the proceedings of a Parliamentary

Committee cannot be questioned in a court in the UK. The enactment of the

Human Rights Act has led to a recognition that in testing whether a statutory

provision is incompatible with a Convention right, it may become necessary for

the court to adjudge the practical effects of a law. To do so, the court may

legitimately have reference to background material which elucidates the

rationale for the law, the social purpose which it has sought to achieve and the

proportionality of its imposition. In order to understand the facets of the law

which bear upon rights protected under the European Convention, the court

may justifiably seek recourse to statements of ministers, policy documents and

white papers to find meaning in the words of the statute. The law in the UK has

hence developed to recognize that free speech in Parliament and separation of

powers must be placed in a scale of interpretation that is cognizant of the need

to protect the democratic rights of citizens.

E.2    India

38 The law in India has witnessed a marked degree of evolution. Indian

jurisprudence on the subject has recognized the importance of the freedom of

40
PART E

speech in Parliament, the principle of separation of powers and the concomitant

protection afforded to members from being held liable for what is spoken in

Parliament. Principles grounded in the common law in the UK have not

remained just in the realm of common law. The Constitution, in recognizing

many of those principles imparts sanctity to them in a manner which only the

text of a fundamental written charter for governance can provide. Separation

of powers is part of the basic structure. Our precedent on the subject notices

the qualitative difference between Parliamentary democracy in the UK and in

India. The fundamental difference arises from the supremacy of the Indian

Constitution which subjects all constitutional authorities to the mandate of a

written Constitution.

39 The locus classicus on the subject of parliamentary privileges is the

seven-judge Bench decision in Re: Powers, Privileges and Immunities of

State Legislatures25. It was argued before this Court that the privilege of the

House to construe Article 194(3) and to determine the width of the privileges,

powers and immunities enables the House to determine questions relating to

the existence and extent of its powers and privileges, unfettered by the views

of the Supreme Court. Chief Justice Gajendragadkar, held that it was necessary

to determine whether even in the matter of privileges, the Constitution confers

on the House a sole and exclusive jurisdiction. The decision recognizes that

while in the UK, Parliament is sovereign, the Indian Constitution creates a

25Special Reference No. 1 of 1964: (1965) 1 SCR 413

41
PART E

federal structure and the supremacy of the Constitution is fundamental to

preserving the delicate balance of power between constituent units:

“38. …it is necessary to bear in mind one fundamental feature
of a federal constitution. In England, Parliament is sovereign;
and in the words of Dicey, the three distinguishing features of
the principle of Parliamentary Sovereignty are that Parliament
has the right to make or unmake any law whatever; that no
person or body is recognized by the law of England as having
a right to override or set aside the legislation of Parliament, and
that the right or power of Parliament extends to every part of
the Queen’s dominions. On the other hand, the essential
characteristic of federalism is “the distribution of limited
executive, legislative and judicial authority among bodies
which are co-ordinate with and independent of each other”.
The supremacy of the Constitution is fundamental to the
existence of a federal State in order to prevent either the
legislatures of the federal unit or those of the member States
from destroying or impairing that delicate balance of power
which satisfied the particular requirements of States which are
desirous of union, but not prepared to merge their individuality
in a unity. This supremacy of the constitution is protected by
the authority of an independent judicial body to act as the
interpreter of a scheme of distribution of powers. Nor is any
change possible in the constitution by the ordinary process of
federal or State legislation. Thus the dominant characteristic of
the British Constitution cannot be claimed by a federal
constitution like ours”.

While the legislatures in our country have plenary powers, they function within

the limits of a written Constitution. As a result, the sovereignty which Parliament

can claim in the UK cannot be claimed by any legislature in India “in the literal

absolute sense”.

40 The immunity conferred on Members of Parliament from liability to “any

proceedings in any court in respect of anything said or any vote given by him in

Parliament” (Article 105(2)) was deliberated upon in a judgment of the

42
PART E

Constitution Bench in P V Narasimha Rao v State (CBI/SPE)26. Justice G N

Ray agreed with the view of Justice S P Bharucha on the scope of the immunity

under clauses (2) and (3) of Article 105. The judgment of Justice Bharucha (for

himself and Justice S Rajendra Babu) thus represents the view of the majority.

The minority view was of Justices S C Agrawal and Dr A S Anand. In construing

the scope of the immunity conferred by Article 105(2), Justice Bharucha

adverted to judgments delivered by courts in the United Kingdom (including

those of the Privy Council noted earlier27). Interpreting Article 105(2), Justice

Bharucha observed thus:

“133. Broadly interpreted, as we think it should be, Article
105(2) protects a Member of Parliament against proceedings
in court that relate to, or concern, or have a connection or
nexus with anything said, or a vote given, by him in
Parliament.”

In that case, the charge in a criminal prosecution for offences under Section

120B of the Penal Code and the Prevention of Corruption Act, 1988 was that

there was a criminal conspiracy between alleged bribe givers and bribe takers

(who were members of the legislature) to defeat a motion of no confidence by

obtaining illegal gratification in pursuance of which bribes were given and

accepted. The charge did not refer to the votes that the alleged bribe takers had

actually cast upon the no confidence motion. Nevertheless, the majority held

that the expression “in respect of” in Article 105(2) must perceive a ‘broad

meaning’. The alleged conspiracy and agreement had nexus in respect of those

26 (1998) 4 SCC 626
27 Bradlaugh v Gosset: (1884) 12 QBD 271: 53 LJQB 290; Prebble v Television New Zealand Ltd: (1994) 3 AII ER
407, PC; R v Currie: (1992)

43
PART E

votes, and the proposed inquiry in the criminal proceedings was in regard to its

motivation. The submission of the Attorney General for India that the protection

under Article 105(2) is limited to court proceedings and to a speech that is given

or a vote that is cast was not accepted by the Constitution Bench for the

following reasons:

“136. It is difficult to agree with the learned Attorney General
that though the words “in respect of” must receive a broad
meaning, the protection under
Article 105(2) is limited to court
proceedings that impugn the speech that is given or the vote
that is cast or arises thereout or that the object of the protection
would be fully satisfied thereby. The object of the protection is
to enable Members to speak their mind in Parliament and vote
in the same way, freed of the fear of being made answerable
on that account in a court of law. It is not enough that Members
should be protected against civil action and criminal
proceedings, the cause of action of which is their speech or
their vote. To enable Members to participate fearlessly in
parliamentary debates, Members need the wider protection of
immunity against all civil and criminal proceedings that bear a
nexus to their speech or vote. It is for that reason that a
Member is not “liable to any proceedings in any court in respect
of anything said or any vote given by him”.
Article 105(2) does
not say, which it would have if the learned Attorney General
were right, that a Member is not liable for what he has said or
how he has voted. While imputing no such motive to the
present prosecution, it is not difficult to envisage a Member
who has made a speech or cast a vote that is not to the liking
of the powers that be being troubled by a prosecution alleging
that he had been party to an agreement and conspiracy to
achieve a certain result in Parliament and had been paid a
bribe.”28

The view of the minority was that the offence of bribery is made out against a

bribe taker either upon taking or agreeing to take money for a promise to act in

a certain manner. Following this logic, Justice SC Agrawal held that the criminal

28Id, at pages 729-730

44
PART E

liability of a Member of Parliament who accepts a bribe for speaking or giving a

vote in Parliament arises independent of the making of the speech or the giving

of the vote and hence is not a liability “in respect of anything said or any vote

given” in Parliament. The correctness of the view in the judgment of the majority

does not fall for consideration in the present case. Should it become necessary

in an appropriate case in future, a larger bench may have to consider the issue.

41 The judgment of the Constitution Bench in Raja Ram Pal v Hon’ble

Speaker, Lok Sabha29, has a significant bearing on the issues which arise in

the present reference. Chief Justice YK Sabharwal, delivering the leading

opinion on behalf of three judges dealt with the ambit of Article 105 in relation

to the expulsion of a member and the extent to which such a decision of the

Houses of Parliament is amenable to judicial review. The judgment notices that

“parliamentary democracy in India is qualitatively distinct” from the UK. In

defining the nature and extent of judicial review in such cases, Chief Justice

Sabharwal observed that it is the jurisdiction of the court to examine whether a

particular privilege claimed by the legislature is actually available to it:

“62. In view of the above clear enunciation of law by
Constitution Benches of this Court in case after case, there
ought not be any doubt left that whenever Parliament, or for
that matter any State Legislature, claims any power or privilege
in terms of the provisions contained in
Article 105(3), or Article
194(3), as the case may be, it is the Court which has the
authority and the jurisdiction to examine, on grievance being
brought before it, to find out if the particular power or privilege
that has been claimed or asserted by the legislature is one that
was contemplated by the said constitutional provisions or, to

29 (2007) 3 SCC 184

45
PART E

put it simply, if it was such a power or privilege as can be said
to have been vested in the House of Commons of the
Parliament of the United Kingdom as on the date of
commencement of the Constitution of India so as to become
available to the Indian Legislatures.”30

While Parliament has the power to expel a member for a contempt committed,

the doctrine of “exclusive cognizance” adopted in the UK has no application in

India which is governed by a written Constitution. Though Parliament is

possessed of a plentitude of powers, it is subject to terms of legislative

competence and to the restrictions imposed by fundamental rights. Article 21 is

attracted when the liberty of a Member of Parliament is threatened by

imprisonment in execution of a parliamentary privilege. Fundamental rights can

be invoked both by a member and by a non-member when faced by the exercise

of parliamentary privilege. Drawing the distinction between the UK and India,

Chief Justice Sabharwal observed:

“363. That the English cases laying down the principle of
exclusive cognizance of Parliament,
including Bradlaugh [(1884) 12 QBD 271: 53 LJQB 290: 50 LT
620], arise out of a jurisdiction controlled by the constitutional
principle of sovereignty of Parliament cannot be lost sight of. In
contrast, the system of governance in India is founded on the
norm of supremacy of the Constitution which is fundamental to
the existence of the Federal State.”31

Consequently, proceedings which are tainted as a result of a substantive

illegality or unconstitutionality (as opposed to a mere irregularity) would not be

protected from judicial review. The doctrine of exclusive cognizance was

evolved in England as incidental to a system of governance based on

30 Id, at page 259
31 Id, at page 348

46
PART E

parliamentary sovereignty. This has no application to India, where none of the

organs created by the Constitution is sovereign, and each is subject to the

checks and controls provided by the Constitution.

The decision in Raja Ram Pal holds that Article 122(1) embodies the twin test

of legality and constitutionality. This Court has categorically rejected the position

that the exercise of powers by the legislature is not amenable to judicial review:

“389. …there is no scope for a general rule that the exercise of
powers by the legislature is not amenable to judicial review.

This is neither the letter nor the spirit of our Constitution. We
find no reason not to accept that the scope for judicial review
in matters concerning parliamentary proceedings is limited and
restricted. In fact, this has been done by express prescription
in the constitutional provisions, including the one contained in
Article 122(1). But our scrutiny cannot stop, as earlier held,
merely on the privilege being found, especially when breach of
other constitutional provisions has been alleged.”32

The Court will not exercise its power of judicial review where there is merely an

irregularity of procedure, in view of the provisions of Article 122(1). But judicial

review is not “inhibited in any manner” where there is a gross illegality or a

violation of constitutional provisions. While summarizing the conclusions of the

judgment, Chief Justice Sabharwal emphasized the need for constitutional

comity, since Parliament being a coordinate constitutional institution. The

expediency and necessity for the exercise of the power of privilege are for the

legislature to determine. Yet, judicial review is not excluded for the purpose of

determining whether the legislature has trespassed on the fundamental rights

32 Id, at page 360

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PART E

of its citizens. Among the conclusions in the judgment, of relevance to the

present case, are the following:

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

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

(m) Article 122(1) and Article 212(1) displace the broad
doctrine of exclusive cognizance of the legislature in England
of exclusive cognizance of internal proceedings of the House
rendering irrelevant the case-law that emanated from courts in
that jurisdiction; inasmuch as the same has no application to
the system of governance provided by the Constitution of
India;.”33

42 The decision in Raja Ram Pal has been adverted to in the subsequent

judgment of the Constitution Bench in Amarinder Singh v Special Committee,

Punjab Vidhan Sabha34. Chief Justice Balakrishnan, speaking for the

Constitution Bench, held that all the privileges which have been claimed by the

House of Commons cannot be claimed automatically by legislative bodies in

India. Legislatures in India do not have the power of self-composition which is

available to the House of Commons. Indian legislatures are governed by a

written Constitution.

43 The limits of comparative law must weigh in the analysis in this area of

constitutional law, when the Court is confronted by a copious attempt, during

the course of submissions, to find meaning in the nature and extent of

33 Id, at page 372
34 (2010) 6 SCC 113

48
PART F

parliamentary privilege in India from decided cases in the UK. The fundamental

difference between the two systems lies in the fact that parliamentary

sovereignty in the Westminster form of government in the UK has given way, in

the Indian Constitution, to constitutional supremacy. Constitutional supremacy

mandates that every institution of governance is subject to the norms embodied

in the constitutional text. The Constitution does not allow for the existence of

absolute power in the institutions which it creates. Judicial review as a part of

the basic features of the Constitution is intended to ensure that every institution

acts within its bounds and limits. The fundamental rights guaranteed to citizens

are an assurance of liberty and a recognition of the autonomy which inheres in

every person. Hence, judicial scrutiny of the exercise of parliamentary privileges

is not excluded where a fundamental right is violated or a gross illegality occurs.

In recognizing the position of Parliament as a coordinate institution created by

the Constitution, judicial review acknowledges that Parliament can decide the

expediency of asserting its privileges in a given case. The Court will not

supplant such an assertion or intercede merely on the basis of an irregularity of

procedure. But where a violation of a constitutional prescription is shown,

judicial review cannot be ousted.

F Separation of powers: a nuanced modern doctrine

44 The submission of the Attorney General is that the carefully structured

dividing lines between the judicial, executive and legislative wings of the state

49
PART F

would be obliterated if the court were to scrutinize or judicially review reports of

parliamentary committees. The principle of separation, it has been submitted,

interdicts the courts from scrutinizing or reviewing reports of parliamentary

committees. Judicial review may well result in a conflict between the two

institutions of the State and is hence – according to the submission – best

eschewed.

45 Separation of powers between the legislature, the executive and the

judiciary covers a large swathe of constitutional history spanning the writings of

Montesquieu and Blackstone, to the work of Dicey and Jennings.

Gerangelos (2009) laments that in the UK, parliamentary sovereignty has

prevented the principle of separation from emerging as a judicially enforceable

standard35:

“Britain’s unwritten constitution and the influence of Diceyan
orthodoxy, emphasising parliamentary sovereignty and a fusion
of powers which did not countenance judicial invalidation of
legislative action, has meant that the separation of powers has
not become a source of judicially-enforceable constitutional
limitations. The precise status of the doctrine has varied from
time to time and the extent to which the doctrine nevertheless
provides some restraint on legislative interference with judicial
process cannot be determined with precision. It can be said,
however, that constitutional entrenchment of the separation
doctrine has not been part of the Westminster constitution
tradition; a tradition which has not, in any event, placed much
store by written constitutions with their accompanying legalism
and rigidities. The prevailing influence from that quarter has
been the maintenance of judicial independence in terms of
institutional independence through the protection of tenure and
remuneration, and afforded statutory protection in the Act of

35 Peter A Gerangelos, THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIAL PROCESS,
CONSTITUTIONAL PRINCIPLES AND LIMITATIONS (Hart Publishing, 2009).

50

PART F

Settlement in 1701, as opposed to the protection of judicial
power in a functional sense.”

The impact of the doctrine is seen best in terms of the institutional

independence of the judiciary from other organs of the state. The doctrine is

stated to have been overshadowed in the UK “by the more dominant

constitutional principles of parliamentary sovereignty and the rule of law”. For

instance, in the UK, Ministers of Crown are both part of the executive and

members of the Parliament. Until the Constitutional Reform Act, 2005 the Lord

Chancellor was a member of the Cabinet and was eligible to sit as a judge in

the Appellate Committee of the House of Lords. The Judicial Committee of the

House of Lords was the highest court, even though the House constituted the

Upper House of the legislature. In the enforcement of parliamentary privileges,

the House exercises judicial functions. Delegated legislation enables the

executive to exercise legislative functions.

46 Many contemporary scholars have differed on the normative importance

of the doctrine of separation. One view is that while a distinct legislature,

executive and judiciary can be identified as a matter of practice, this is not a

mandate of the unwritten Constitution. The statement that there is a separation

is construed to be descriptive and not normative36. On the other hand, other

scholars regard the doctrine as “a fundamental underlying constitutional

principle which informs the whole British constitutional structure”37. Yet, even

36 See A Tomkins, PUBLIC LAW (Oxford University Press, 2003) 37 (as cited by Gerangelos at page 274).
37 E Barendt, ‘Separating of Powers and Constitutional Government’ [1995] Public Law 599 at 599-60,

51
PART F

scholars who emphasise the importance of the separation of powers in the UK

acknowledge that the Constitution does not strictly observe such a separation.

Courts in the UK do not possess a direct power of judicial review to invalidate

legislation though, with the enactment of the Human Rights Act, the doctrine of

incompatibility has become an entrenched feature of the law. Gerangelos

(supra) states that “the most that can be said is that the separation of powers

does play an influential role as a constitutional principle, but as a non-binding

one”.38 He cites Professor Robert Stevens39:

“In modern Britain the concept of the separation of powers is
cloudy and the notion of the independence of the judiciary
remains primarily a term of constitutional rhetoric. Certainly its
penumbra, and perhaps even its core, are vague. No general
theory exists, although practically the English have developed
surprisingly effective informal systems for the separation of
powers; although it should never be forgotten that the system
of responsible government is based on a co-mingling of the
executive with the legislature. The political culture of the United
Kingdom, however, provides protections for the independence
of the judiciary, which are missing in law.”

The importance of the principle of separation essentially lies in the

independence of the judiciary. The protections in the Act of Settlement 1701

have now been reinforced in the Constitutional Reform Act, 2005. Though the

supremacy of Parliament is one of the fundamental features in the UK and the

unwritten Constitution does not mandate a strict separation of powers, it would

be difficult to regard a state which has no control on legislative supremacy as a

C Munro, Studies in Constitutional Law, 2nd edn (London, Butterworths, 1999) at 304,
TRS Allan, Law Liberty and Justice, The Legal Foundations of British Constitutionalism (Oxford, Clarendon
Press, 1993) chs 3 and 8, and TRS Allan, Constitutional Justice, A Liberal Theory of the Rule of Law (Oxford,
Oxford University Press, 2001)
38
Peter A Gerangelos, THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIAL PROCESS,
CONSTITUTIONAL PRINCIPLES AND LIMITATIONS (Hart Publishing, 2009)
39 R Stevens, ‘A Loss of Innocence?: Judicial Independence and the Separation of powers’ (1999) 19 OXFORD
JOURNAL OF LEGAL STUDIES 365.

52

PART F

constitutional state founded on the rule of law40. Consequently, where the rule

of law and constitutionalism govern society there may yet be fundamental

principles inhering in the nature of the polity, which can be enforced by the

judiciary even against Parliament, in the absence of a written Constitution 41. In

other words, even in the context of an unwritten Constitution, the law has a

certain internal morality as a part of which it embodies fundamental notions of

justice and fairness.

47 The interpretation of the doctrine of separation of powers has evolved

from being a “one branch – one function approach”42 with limited exceptions, to

a concept which involves an integration of the ‘division of work’ and ‘checks and

balances’43. The primary aim of the doctrine today is to ensure the

accountability of each wing of the State, while ensuring concerted action in

respect of the functions of each organ for good governance in a democracy.

The doctrine of separation of power has developed to fulfill the changing needs

of society and its growing necessities. Many of these considerations are

significantly different from those which were prevalent when Montesquieu

originally formulated the doctrine.

48 In 1967, MJC Vile in his book titled ‘Constitutionalism and the

40 Allan, Law Liberty and Justice (supra note 36)
41 Gerangelos, at page 277.

42

Aileen Kavanagh, The Constitutional Separation of Powers, Chapter 11 in David Dyzenhaus and Malcolm
Thorburn (eds.) PHILOSOPHICAL FOUNDATIONS OF CONSTITUTIONAL LAW , (Oxford University Press, 2016) 221
(hereinafter, “Philosophical Foundations of Constitutional Law”).
43 See MJC Vile, CONSTITUTIONALISM AND THE SEPARATION OF POWERS (Oxford University Press, 1967).

53
PART F

Separation of Powers’44 defined the ‘pure doctrine’ of separation of powers

thus:

“[a] ‘pure doctrine’ of the separation of powers might be
formulated in the following way: It is essential for the
establishment and maintenance of political liberty that the
government be divided into three branches or departments, the
legislature, the executive, and the judiciary. To each of these
three branches, there is a corresponding identifiable function
of government, legislative, executive, or judicial. Each branch
of the government must be confined to the exercise of its own
function and not allowed to encroach upon the functions of the
other branches. Furthermore, the persons who compose these
three agencies of government must be kept separate and
distinct, no individual being allowed to be at the same time a
member of more than one branch. In this way, each of the
branches will be a check to the others and no single group of
people will be able to control the machinery of the State.”45

This definition becomes important to facilitate an understanding of the

reconstructed and modern view on separation of powers vis-à-vis its traditional

understanding. Vile essentially proposes that ‘division of labor’ and ‘checks and

balances’ are intrinsic to the theory of separation of powers. In his view, a

scheme of checks and balances would involve a degree of mutual supervision

among the branches of government, and may therefore result in a certain

amount of interference by one branch into the functions and tasks of the other. 46

Aileen Kavanagh, has presented a scholarly analysis of separation of powers

in a chapter titled ‘The Constitutional Separation of Powers’.47 She concurs

with the view expressed by MJC Vile that separation of powers includes two

44 Id.

45

Id, at page 13
46 See, MJC Vile, CONSTITUTIONALISM AND THE SEPARATION OF POWERS (Oxford University Press, 1967).
47Aileen Kavanagh, The Constitutional Separation of Powers, Chapter 11 in David Dyzenhaus and Malcolm

Thorburn (eds.) PHILOSOPHICAL FOUNDATIONS OF CONSTITUTIONAL LAW, (Oxford University Press, 2016) 221.

54
PART F

components, that of ‘division of labour’ and ‘checks and balances’. These two

components are strengthened by the deep-rooted ethos of coordinated

institutional effort and joint activity between branches of the government in the

interest of good governance.48 Instead of an isolated compartmentalization of

branches of government, she highlights the necessary independence,

interdependence, interaction and interconnection between these branches in a

complex interactive setting.49 Kavanagh acknowledges that in view of the

stronghold of the pure doctrine over our understanding of separation of powers,

the idea of a collective enterprise between the branches of the government for

the purpose of governing may seem jarring. However, she argues that this idea

of “branches being both independent and interdependent-distinct but

interconnected-also has some pedigree in canonical literature.”50 Kavanagh

thus opines that the tasks of law-making, law-applying and law-executing are

collaborative in nature, necessitating co-operation between the branches of the

government in furtherance of the common objective of good governance.

Kavanagh explains this as follows:

“In some contexts, the interaction between the branches will be
supervisory, where the goal is to check, review and hold the
other to account. At other times, the interaction will be a form
of cooperative engagement where the branches have to
support each other’s role in the joint endeavor.”51

48 See, D Kyritsis, ‘What is Good about Legal Conventionalism?’ (2008) 14 LEGAL THEORY 135, 154 (as cited in
Philosophical Foundations of Constitutional Law, at page 235).

49 Id.

50

Philosophical Foundations of Constitutional Law, at page 236.
51 K Malleson, ‘The Rehabilitation of Separation of Powers in UK’ in L. de Groot-van Leeuwen and W Rombouts,

SEPARATION OF POWERS IN THEORY AND PRACTICE: AN INTERNATIONAL PERSPECTIVE (Nijmegen: Wolf Publishing,
2010) 99-122, 115 (as cited in Philosophical Foundations of Constitutional Law, at page 237).

55
PART F

Jeremy Waldron has dealt with the relationships among officials or institutions

in a State. He proposes that separation of powers is not just a principle involving

the division of labour and the distribution of power but also includes inter-

institutional relationships between the three branches when carrying out their

distinct roles as part of a joint enterprise. This is in order to facilitate, what

Waldron called the ‘Principle of Institutional Settlement’.52 Further, inter-

institutional comity, which is the respect that one branch of the state owes to

another, is also a significant factor, which calls for collaboration among

branches of the government to ensure that general public values such as

welfare, autonomy, transparency, efficiency and fairness are protected and

secured for the benefit of citizens.53

Thus, in a comparative international context, authors have accepted separation

of powers to widely include two elements: ‘division of labour’ and ‘checks and

balances’. The recent literature on the subject matter encourages inter-

institutional assistance and aid towards the joint enterprise of good governance.

The current view on the doctrine of separation of powers also seeks to

incorporate mutual supervision, interdependence and coordination because the

ultimate aim of the different branches of the government, through their distinct

functions is to ensure good governance and to serve public interest, which is

essential in the background of growing social and economic interests in a

52 J Waldron, ‘Authority for Officials’ in L. Meyer, S. Paulson and T. Pogge (eds), RIGHTS, CULTURE, AND THE LAW:
THEMES FROM THE LEGAL AND POLITICAL PHILOSOPHY OF JOSEPH RAZ (Oxford University Press, 2003) 45-70.
53 See, J King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 OXFORD JOURNAL OF LEGAL STUDIES 409,

428; See also, Buckley v. Attorney General [1950] Irish Reports 67, 80 (per O’Bryne J) (as cited in Philosophical
Foundations of Constitutional Law, at page 235).

56
PART F

welfare state. This stands in contrast with the former and original interpretation

of the doctrine, which sought to compartmentalize and isolate the different

branches of the government from one another, with limited permissible

exceptions.

49 Eoin Carolan’s book titled ‘The New Separation of Powers’ (2009)

reflects an attempt to reshape the traditional doctrine of separation, to make it

relevant to the practical realities of modern government. He notes that while the

tripartite separation of powers between the legislature, executive and judiciary

had “conceptual simplicity with an impeccable academic pedigree” 54, the

doctrine has obvious limitations in the sense that it does not satisfactorily

explain the emergence and growth of the modern administrative State we see

today. The author contends that an institutional theory like the separation of

powers can no longer be accepted in its original form if it cannot account for

this ‘significant tranche of government activity’. Among the characteristics of the

modern administrative State is that public power is exercised in a decentralized

manner and on an ever-growing discretionary basis.55

The shared growth of administrative powers of the bureaucracy in the modern

state defies the tripartite division. Therefore, a realistic modern application of

the theory is necessary. The modern system of government has grown in ways

previously thought unfathomable, and now encompasses a breadth and

54 Eoin Carolan, THE NEW SEPARATION OF POWERS- A THEORY FOR THE MODERN STATE (Oxford University Press, 2009)

253.
55 Id.

57
PART F

diversity previously unseen. Government today is characterized by the increase

in powers of its agencies and the rapid growth of organizations which can

neither be classified as exclusively public or private bodies. These modern

systems of government and the existence and rapid rise of supranational

organizations defy the traditional three- way division of powers. Administrative

bodies are not defined by a uniform design, and exercise institutional fluidity in

a manner which has come to characterize the administrative state’s

organizational complexity: In a single instance, they exercise powers and

perform functions that might have been formerly classified as executive, judicial

or legislative in nature.56 In this view, the modern State is distinctly different from

Locke’s seventeenth century Model and Montesquieu’s eighteenth century

ideas:

“The state is now dirigiste, discretionary, and broadly
dispersed.”57

50 Carolan thus proposes that to be suitable, a theory of institutional justice

must be rooted in the principle of non-arbitrariness. He believes that a more

suitable approach of classification of institutions would be not by functions, but

by constituencies, and the sole constituency in this legal framework is the

individual citizen. Carolan’s proposed model places emphasis on the exercise

of power on the basis of inter-institutional dialogue which ensures that a

communicative process has taken place58. Carolan describes his model thus:

56 Eoin Carolan, The Problems with the Theory of Separation of Powers’, SSRN, (2011) 26.
57 Supra note 53, 256
58 Supra note 53, 132

58
PART F

“The prescribed institutional structure operates by inter-organ
mingling instead of separation. Individual decisions are
delivered at the end of a multi institutional process, the central
concern of which is to organize, structure, manage, and—
crucially—ensure the input of all relevant institutional interests.
On this model, the government and the courts are presented
as providing an orienting framework within which
administrative decision-making will occur. These first-order
organs function at the level of macro-social organization,
adopting general measures which are expected to advance
their constituent social interest. The government specifies the
actions it feels are required (or requested) to enhance the
position of the collective. The courts, for their part, insist on the
process precautions necessary to secure individual protection.
Issues of informational efficacy and non-arbitrariness combine
to ensure, however, that these provisions are not
particularized.”65

While the autonomy of the administration is respected as a vital institutional

process, corrective measures are required where an institution has strayed

outside the range of permissible outcomes. He speaks of a collaborative

process of exercising power, with the judiciary acting as a restraining influence

on the arbitrary exercise of authority.

51 While the Indian Constitution has been held to have recognized the

doctrine of separation of powers, it does not adopt a rigid separation. In Ram

Jawaya Kapur v State of Punjab59, this Court held:

“12. …The Indian Constitution has not indeed recognised the
doctrine of separation of powers in its absolute rigidity but the
functions of the different parts or branches of the Government
have been sufficiently differentiated and consequently it can
very well be said that our Constitution does not contemplate
assumption, by one organ or part of the State, of functions that
essentially belong to another.”

59 (1955) 2 SCR 225

59
PART F

Reduced to its core, separation entails that one organ or institution of the state

cannot usurp the powers of another.

In Re: Powers, Privileges and Immunities of State Legislatures60, this Court

held that whether or not the Constitution brings about a “distinct and rigid

separation of powers”, judicial review is an inseparable part of the judicial

function. Whether legislative authority has extended beyond its constitutional

boundaries or the fundamental rights have been contravened cannot be

decided by the legislature, but is a matter entrusted exclusively to judicial

decision.

In Kesavananda Bharati v State of Kerala61, separation of powers was

regarded as a feature of the basic structure of the Indian Constitution. Chief

Justice Sikri held:

“292. The learned Attorney-General said that every provision
of the Constitution is essential; otherwise it would not have
been put in the Constitution. This is true. But this does not
place every provision of the Constitution in the same position.
The true position is that every provision of the Constitution can
be amended provided in the result the basic foundation and
structure of the constitution remains the same. The basic
structure may be said to consist of the following features:

(1) Supremacy of the Constitution;

(2) Republican and Democratic form of Government;
(3) Secular character of the Constitution;
(4) Separation of powers between the legislature, the
executive and the judiciary;

(5) Federal character of the Constitution.”62

60 (1965) 1 SCR 413
61 (1973) 4 SCC 225
62 Id, at page 366

60
PART F

Justices Shelat and Grover emphasized the doctrine of separation as a part of

the checks and balances envisaged by the Constitution:

“577. …There is ample evidence in the Constitution itself to
indicate that it creates a system of checks and balances by
reason of which powers are so distributed that none of the
three organs it sets up can become so pre-dominant as to
disable the others from exercising and discharging powers and
functions entrusted to them. Though the Constitution does not
lay down the principle of separation of powers in all its rigidity
as is the case in the United States Constitution yet it envisages
such a separation to a degree…”63

In Indira Nehru Gandhi v Raj Narain64, Justice YV Chandrachud held that

while the Constitution does not embody a rigid separation of governmental

powers, a judicial function cannot be usurped by the legislature:

“689. …the exercise by the legislature of what is purely and
indubitably a judicial function is impossible to sustain in the
context even of our cooperative federalism which contains no
rigid distribution of powers but which provides a system of
salutary checks and balances.”65

The 39th amendment of the Constitution did precisely that and was held to

violate the basic structure.

In I R Coelho v State of Tamil Nadu66, the Court underlined the functional

complementarity between equality, the rule of law, judicial review and

separation of powers:

“129. Equality, rule of law, judicial review and separation of
powers form parts of the basic structure of the Constitution.

Each of these concepts are intimately connected. There can
be no rule of law, if there is no equality before the law. These

63
Id, at page 452.

64 (1975) Suppl SCC 1
65 Id, at page 261.

66 (2007) 2 SCC 1

61
PART F

would be meaningless if the violation was not subject to the
judicial review. All these would be redundant if the legislative,
executive and judicial powers are vested in one organ.
Therefore, the duty to decide whether the limits have been
transgressed has been placed on the judiciary.”67

A Constitution Bench of this Court in State of Tamil Nadu v State of Kerala68

ruled on the importance of separation as an entrenched constitutional principle.

The court held:

“126.1. Even without express provision of the separation of
powers, the doctrine of separation of powers is an entrenched
principle in the Constitution of India. The doctrine of separation
of powers informs the Indian constitutional structure and it is
an essential constituent of rule of law. In other words, the
doctrine of separation of power though not expressly engrafted
in the Constitution, its sweep, operation and visibility are
apparent from the scheme of Indian Constitution. Constitution
has made demarcation, without drawing formal lines between
the three organs—legislature, executive and judiciary. In that
sense, even in the absence of express provision for separation
of powers, the separation of powers between the legislature,
executive and judiciary is not different from the Constitutions of
the countries which contain express provision for separation of
power.”69

52 The doctrine of separation restrains the legislature from declaring a

judgment of a court to be void and of no effect. However, in the exercise of its

law making authority, a legislature possessed of legislative competence can

enact validating law which remedies a defect pointed out in a judgment of a

court. While the legislature cannot ordain that a decision rendered by the court

is invalid, it may by enacting a law, take away the basis of the judgment such

67 Id, at page 105
68 (2014) 12 SCC 696
69 Id, at page 771

62
PART F

that the conditions on which it is based are so fundamentally altered that the

decision could not have been given in the altered circumstances.70

53 In State of UP v Jeet S Bisht71, the Court held that the doctrine of

separation of powers limits the “active jurisdiction” of each branch of

government. However, even when the active jurisdiction of an organ of the

State is not challenged, the doctrine allows for methods to be used to prod and

communicate to an institution either its shortfalls or excesses in discharging its

duty. The court recognized that fundamentally, the purpose of the doctrine is to

act as a scheme of checks and balances over the activities of other organs.

The Court noted that the modern concept of separation of powers subscribes

to the understanding that it should not only demarcate the area of functioning

of various organs of the State, but should also, to some extent, define the

minimum content in that delineated area of functioning.

Justice SB Sinha addressed the need for the doctrine to evolve, as

administrative bodies are involved in the dispensation of socio-economic

entitlements:

“83. If we notice the evolution of separation of powers doctrine,
traditionally the checks and balances dimension was only
associated with governmental excesses and violations. But in
today's world of positive rights and justifiable social and
economic entitlements, hybrid administrative bodies, private
functionaries discharging public functions, we have to perform

70 I.N. Saksena v. State of MP (1976) 4 SCC 750; Indian Aluminium Co. v. State of Kerala (1996) 7 SCC 637; S.S
Bola and Others v. B.D Sardana Others (1997) 8 SCC 522;
Shri Prithvi Cotton Mills Ltd. v. Broach Borough
Municipality (1969) 2 SCC 283; Supreme Court
Advocates-on-Record-Association and Ors. v. Union of India
(2016) 5 SCC 1
71 (2007) 6 SCC 586

63
PART F

the oversight function with more urgency and enlarge the field
of checks and balances to include governmental inaction.

Otherwise we envisage the country getting transformed into
a state of repose. Social engineering as well as institutional
engineering therefore forms part of this obligation.”72

54 The constitutional validity of the Members of Parliament Local Area

Development (“MPLAD”) Scheme, which allocates funds to MPs for

development work in their constituencies was considered by a Constitution

Bench of this Court in Bhim Singh v Union of India73. The challenge was that

by entrusting funds to MPs, the Scheme vests governmental functions in

legislators and violates the separation of powers. The Court held that while the

concept of separation of powers is not found explicitly in a particular

constitutional provision, it “is inherent in the polity the Constitution has adopted”.

The Constitution Bench perceived that there is a link between separation and

the need to ensure accountability of each branch of government. While the

Constitution does not prohibit overlapping functions, what it prohibits is the

exercise of functions by a branch in a way which “results in wresting away of

the regime of constitutional accountability.” The Court held that by allowing

funds to be allocated to Members of Parliament for addressing the development

needs of their constituencies, the MPLAD Scheme does not breach the doctrine

of separation of powers. The administration of the scheme was adequately

supervised by district authorities.

72 Id, at page 619
73 (2010) 5 SCC 538

64
PART F

55 In Supreme Court Advocates-on-Record Association v Union of

India74, Justice Madan B Lokur observed that separation of powers does not

envisage that each of the three organs of the State – the legislature, executive

and judiciary - work in a silo. The learned judge held:

“678. There is quite clearly an entire host of parliamentary and
legislative checks placed on the judiciary whereby its
administrative functioning can be and is controlled, but these
do not necessarily violate the theory of separation of powers or
infringe the independence of the judiciary as far as decision-

making is concerned. As has been repeatedly held, the theory
of separation of powers is not rigidly implemented in our
Constitution, but if there is an overlap in the form of a check
with reference to an essential or a basic function or element of
one organ of State as against another, a constitutional issue
does arise. It is in this context that the 99th
Constitution
Amendment Act has to be viewed—whether it impacts on a
basic or an essential element of the independence of the
judiciary, namely, its decisional independence.”75

56 In State of West Bengal v Committee for Protection of Democratic

Rights, West Bengal76, this Court held that the doctrine of separation of

powers could not be invoked to limit the Court’s power to exercise judicial

review, in a case where fundamental rights are sought to be breached or

abrogated on the ground that exercise of the power would impinge upon the

doctrine.

57 In a more recent decision of a Bench of two learned judges of this Court

in Common Cause v Union of India77, the Court construed the provisions of

74
(2016) 5 SCC 1
75 Id, at page 583
76 (2010) 3 SCC 571
77 (2017) 7 SCC 158

65
PART F

the Lokpal and Lokayuktas Act, 2013 under which a multi-member selection

committee for the appointment of the Lokpal is to consist, among others, of the

Leader of the Opposition. A Bill for amending the provisions of the Act was

referred to a parliamentary committee which proposed the inclusion of the

leader of the largest opposition party in the Lok Sabha as a member, in lieu of

the Leader of the Opposition in the selection committee. The grievance of the

petitioners was that despite the enactment of the law, its provisions had not

been implemented. It was urged that even if there is no recognized Leader of

the Opposition in the Lok Sabha, the leader of the single largest opposition party

should be inducted as a part of the Selection Committee. Justice Ranjan Gogoi

speaking for this Court held thus:

“18. There can be no manner of doubt that the parliamentary
wisdom of seeking changes in an existing law by means of an
amendment lies within the exclusive domain of the legislature
and it is not the province of the Court to express any opinion
on the exercise of the legislative prerogative in this regard. The
framing of the Amendment Bill; reference of the same to the
Parliamentary Standing Committee; the consideration thereof
by the said Committee; the report prepared along with further
steps that are required to be taken and the time-frame thereof
are essential legislative functions which should not be
ordinarily subjected to interference or intervention of the Court.
The constitutional doctrine of separation of powers and the
demarcation of the respective jurisdiction of the Executive, the
Legislature and the Judiciary under the constitutional
framework would lead the Court to the conclusion that the
exercise of the amendment of the Act, which is presently
underway, must be allowed to be completed without any
intervention of the Court. Any other view and any interference,
at this juncture, would negate the basic constitutional principle
that the legislature is supreme in the sphere of law-making.

Reading down a statute to make it workable in a situation
where an exercise of amendment of the law is pending, will not
be justified either. A perception, however strong, of the
imminent need of the law engrafted in the Act and its beneficial
effects on the citizenry of a democratic country, by itself, will

66
PART F

not permit the Court to overstep its jurisdiction. Judicial
discipline must caution the Court against such an approach.”78

58 While assessing the impact of the separation of powers upon the present

controversy, certain precepts must be formulated. Separation of powers

between the legislature, the executive and the judiciary is a basic feature of the

Constitution. As a foundational principle which is comprised within the basic

structure, it lies beyond the reach of the constituent power to amend. It cannot

be substituted or abrogated. While recognizing this position, decided cases

indicate that the Indian Constitution does not adopt a separation of powers in

the strict sense. Textbook examples of exceptions to the doctrine include the

power of the executive to frame subordinate legislation, the power of the

legislature to punish for contempt of its privileges and the authority entrusted to

the Supreme Court and High Courts to regulate their own procedures by framing

rules. In making subordinate legislation, the executive is entrusted by the

legislature to make delegated legislation, subject to its control. The rule making

power of the higher judiciary has trappings of a legislative character. The power

of the legislature to punish for contempt of its privileges has a judicial character.

These exceptions indicate that the separation doctrine has not been adopted in

the strict form in our Constitution. But the importance of the doctrine lies in its

postulate that the essential functions entrusted to one organ of the state cannot

be exercised by the other. By standing against the usurpation of constitutional

powers entrusted to other organs, separation of powers supports the rule of law

78 Id, at page 173

67
PART F

and guards against authoritarian excesses. Parliament and the State

Legislatures legislate. The executive frames policies and administers the law.

The judiciary decides and adjudicates upon disputes in the course of which facts

are proved and the law is applied. The distinction between the legislative

function and judicial functions is enhanced by the basic structure doctrine. The

legislature is constitutionally entrusted with the power to legislate. Courts are

not entrusted with the power to enact law. Yet, in a constitutional democracy

which is founded on the supremacy of the Constitution, it is an accepted

principle of jurisprudence that the judiciary has the authority to test the validity

of legislation. Legislation can be invalidated where the enacting legislature lacks

legislative competence or where there is a violation of fundamental rights. A

law which is constitutionally ultra vires can be declared to be so in the exercise

of the power of judicial review. Judicial review is indeed also a part of the basic

features of the Constitution. Entrustment to the judiciary of the power to test the

validity of law is an established constitutional principle which co-exists with the

separation of powers. Where a law is held to be ultra vires there is no breach of

parliamentary privileges for the simple reason that all institutions created by the

Constitution are subject to constitutional limitations. The legislature, it is well

settled, cannot simply declare that the judgment of a court is invalid or that it

stands nullified. If the legislature were permitted to do so, it would travel beyond

the boundaries of constitutional entrustment. While the separation of powers

prevents the legislature from issuing a mere declaration that a judgment is

erroneous or invalid, the law-making body is entitled to enact a law which

68
PART G

remedies the defects which have been pointed out by the court. Enactment of

a law which takes away the basis of the judgment (as opposed to merely

invalidating it) is permissible and does not constitute a violation of the

separation doctrine. That indeed is the basis on which validating legislation is

permitted.

59 This discussion leads to the conclusion that while the separation of

powers, as a principle, constitutes the cornerstone of our democratic

Constitution, its application in the actual governance of the polity is nuanced.

The nuances of the doctrine recognize that while the essential functions of one

organ of the state cannot be taken over by the other and that a sense of

institutional comity must guide the work of the legislature, executive and

judiciary, the practical problems which arise in the unfolding of democracy can

be resolved through robust constitutional cultures and mechanisms. The

separation doctrine cannot be reduced to its descriptive content, bereft of its

normative features. Evidently, it has both normative and descriptive features. In

applying it to the Indian Constitution, the significant precept to be borne in mind

is that no institution of governance lies above the Constitution. No entrustment

of power is absolute.

G     A functional relationship

60 What then does the above analysis tell us about the functional

relationship of the work which is done by parliamentary committees and the role

69
PART G

of the court as an adjudicator of disputes? In assessing the issue, it must be

remembered, that parliamentary committees owe their existence to Parliament.

They report to Parliament. They comprise of the members of Parliament. Their

work consists of tendering advice to the legislature. A parliamentary committee

does not decide a lis between contesting disputants nor does it perform an

adjudicatory function. A committee appointed by the House can undoubtedly

receive evidence, including expert evidence, both oral and documentary. A

Select Committee may be appointed by the House to scrutinize a Bill. When the

committee performs its task, its report is subject to further discussion and

debate in the House in the course of which the legislative body would decide as

to whether the Bill should be enacted into law. The validity of the advice which

is tendered by a parliamentary committee in framing its recommendations for

legislation cannot be subject to a challenge before a court of law. The advice

tendered is, after all, what it purports to be: it is advice to the legislating body.

The correctness of or the expediency or justification for the advice is a matter

to be considered by the legislature and by it alone.

61 Department related standing committees are constituted by Parliament to

oversee the functioning of ministries/departments of government. It is through

the work of these committees that Parliament exacts the accountability of the

executive. It is through the work of these committees that Parliament is able to

assess as to whether the laws which it has framed are being implemented in

70
PART G

letter and spirit and to determine the efficacy of government policies in meeting

the problems of the day.

62 The contents of the report of a parliamentary committee may have a

bearing on diverse perspectives. It is necessary to elucidate them in order to

determine whether, and if so to what extent, they can form the subject matter of

consideration in the course of adjudication in a court. Some of these

perspectives are enumerated below:

(i) The report of a parliamentary committee may contain a statement of

position by government on matters of policy;

(ii) The report may allude to statements made by persons who have deposed

before the Committee;

(iii) The report may contain inferences of fact including on the performance

of government in implementing policies and legislation;

(iv) The report may contain findings of misdemeanor implicating a breach of

duty by public officials or private individuals or an evasion of law; or

(v) The report may shed light on the purpose of a law, the social problem

which the legislature had in view and the manner in which it was sought

to be remedied.

63 The use of parliamentary history as an aid to statutory construction is an

area which poses the fewest problems. In understanding the true meaning of

the words used by the legislature, the court may have regard to the reasons

71
PART G

which have led to the enactment of the law, the problems which were sought to

be remedied and the object and purpose of the law. For understanding this, the

court may seek recourse to background parliamentary material associated with

the framing of the law. In his seminal work on the Interpretation of Statutes,

Justice G P Singh notes that the traditional rule of exclusion in English Courts

has over a period of time been departed from in India as well to permit the court

to have access to the historical background in which the law was enacted.

Justice G P Singh79 notes:

“The Supreme Court, speaking generally, to begin with,
enunciated the rule of exclusion of Parliamentary history in the
way it was traditionally enunciated by the English Courts, but
on many an occasion, the court used this aid in resolving
questions of construction. The court has now veered to the
view80 that legislative history within circumspect limits may be
consulted by courts in resolving ambiguities. But the courts still
sometimes, like the English courts, make a distinction between
use of a material for finding the mischief dealt with by the Act
and its use for finding the meaning of the Act. As submitted
earlier this distinction is unrealistic and has now been
abandoned by the House of Lords.”

64 Reports of parliamentary committees may contain a statement of position

by government on matters of policy. There is no reason in principle to exclude

recourse by a court to the report of the committee at least as a reflection of the

fact that such a statement was made before the committee. Similarly, that a

statement was made before the committee - as a historical fact - may be taken

note of by the court in a situation where the making of the statement itself is not

a contentious issue.

79 Justice G P Singh, PRINCIPLES OF STATUTORY INTERPRETATION (14th edn.) 253.
80
Kesavananda Bharati v. State of Kerala 1973 (4) SCC 225; Tata Power Co. Ltd. v. Reliance Energy Ltd (2009)
16 SCC 659;
Namit Sharma v. Union of India (2013) 1 SCC 745.

72
PART G

65 In matters involving public interest which come up before the court, a

grievance is often made of the violation of the fundamental rights of persons

who by reason of poverty, ignorance or marginalized status are unable to seek

access to justice. Public interest litigation has been perceived as social action

litigation because a relaxation of the rules of standing has enabled constitutional

courts to reach out to those who have suffered discrimination and prejudice.

Whatever be the source of such discrimination – the feudal and patriarchal

structures of Indian society being among them – public interest litigation has

enabled courts to develop flexible tools of decision making and pursue

innovative remedies. The writ of continuing mandamus is one of them. In the

process, the violation of the fundamental rights of those groups of citizens who

may not be able to seek access to justice is sought to be remedied. Public

interest litigation has emerged as a powerful tool to provide justice to the

marginalized. In matters involving issues of public interest, courts have been

called upon to scrutinize the failure of the state or its agencies to implement law

and to provide social welfare benefits to those for whom they are envisaged

under legislation. Courts have intervened to ensure the structural probity of the

system of democratic governance. Executive power has been made

accountable to the guarantee against arbitrariness (Article 14) and to

fundamental liberties (principally Articles 19 and 21).

66 Committees of Parliament attached to ministries/departments of the

government perform the function of holding government accountable to

73
PART G

implement its policies and its duties under legislation. The performance of

governmental agencies may form the subject matter of such a report. In other

cases, the deficiencies of the legislative framework in remedying social wrongs

may be the subject of an evaluation by a parliamentary committee. The work

of a parliamentary committee may traverse the area of social welfare either in

terms of the extent to which existing legislation is being effectively implemented

or in highlighting the lacunae in its framework. There is no reason in principle

why the wide jurisdiction of the High Courts under Article 226 or of this Court

under Article 32 should be exercised in a manner oblivious to the enormous

work which is carried out by parliamentary committees in the field. The work of

the committee is to secure alacrity on the part of the government in alleviating

deprivations of social justice and in securing efficient and accountable

governance. When courts enter upon issues of public interest and adjudicate

upon them, they do not discharge a function which is adversarial. The

constitutional function of adjudication in matters of public interest is in step with

the role of parliamentary committees which is to secure accountability,

transparency and responsiveness in government. In such areas, the doctrine of

separation does not militate against the court relying upon the report of a

parliamentary committee. The court does not adjudge the validity of the report

nor for that matter does it embark upon a scrutiny into its correctness. There is

a functional complementarity between the purpose of the investigation by the

parliamentary committee and the adjudication by the court. To deprive the court

of the valuable insight of a parliamentary committee would amount to excluding

74
PART G

an important source of information from the purview of the court. To do so on

the supposed hypothesis that it would amount to a breach of parliamentary

privilege would be to miss the wood for the trees. Once the report of the

parliamentary committee has been published it lies in the public domain. Once

Parliament has placed it in the public domain, there is an irony about the

executive relying on parliamentary privilege. There is no reason or justification

to exclude it from the purview of the material to which the court seeks recourse

to understand the problem with which it is required to deal. The court must look

at the report with a robust common sense, conscious of the fact that it is not

called upon to determine the validity of the report which constitutes advice

tendered to Parliament. The extent to which the court would rely upon a report

must necessarily vary from case to case and no absolute rule can be laid down

in that regard.

67 There may, however, be contentious matters in the report of a

parliamentary committee in regard to which the court will tread with

circumspection. For instance, the report of the committee may contain a finding

of misdemeanor involving either officials of the government or private

individuals bearing on a violation of law. If the issue before the court for

adjudication is whether there has in fact been a breach of duty or a violation of

law by a public official or a private interest, the court would have to deal with it

independently and arrive at its own conclusions based on the material before it.

Obviously in such a case the finding by a Parliamentary Committee cannot

75
PART G

constitute substantive evidence before the court. The parliamentary committee

is not called upon to decide a lis or dispute involving contesting parties and

when an occasion to do so arises before the court, it has to make its

determination based on the material which is admissible before it. An individual

whose conduct has been commented upon in the report of a parliamentary

committee cannot be held guilty of a violation on the basis of that finding. In

Jyoti Harshad Mehta v The Custodian81, this Court held that a report of the

Janakiraman committee could not have been used as evidence by the Special

Court. The court held:

“57. It is an accepted fact that the reports of the Janakiraman
Committee, the Joint Parliamentary Committee and the Inter-

Disciplinary Group (IDG) are admissible only for the purpose
of tracing the legal history of the Act alone. The contents of the
report should not have been used by the learned Judge of the
Special Court as evidence.”82

68 Section 57 of the Indian Evidence Act 1872 speaks of facts of which the

court must take judicial notice. Section 57 is comprised in Part II (titled ‘On

proof’). Chapter III deals with facts which need not be proved. Section 57(4)

provides as follows:

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

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

81 (2009) 10 SCC 564
82 Id, at page 582

76
PART G

In The Sole Trustee, Lok Shikshana Trust v The Commissioner of Income

Tax, Mysore83, a three judge Bench of this Court, while construing Section

57(4) made a distinction between the fact that a particular statement is made in

Parliament and the correctness of what is stated on a question of fact. The

former could be relied upon. However, the truth of a disputable question of fact

would have to be independently proved before the court. Justice HR Khanna

observed thus:

“33. We find that Section 57, sub-section (4) of the Evidence
Act not only enables but enjoins courts to take judicial notice of
the course of proceedings in Parliament assuming, of course,
that it is relevant. It is true that the correctness of what is stated,
on a question of fact, in the course of parliamentary
proceedings, can only be proved by somebody who had direct
knowledge of the fact stated. There is, however, a distinction
between the fact that a particular statement giving the purpose
of an enactment was made in Parliament, of which judicial
notice can be taken as part of the proceedings, and the truth of
a disputable matter of fact stated in the course of proceedings,
which has to be proved aliunde, that is to say, apart from the
fact that a statement about it was made in the course of
proceedings in Parliament (see: Rt. Hon'ble Jerald Lord
Strickland v. Carmelo Mifud Bonnici [AIR 1935 PC 34 : 153 IC
1] ; the
Englishman Ltd. v. Lajpat Rai, ILR 37 Cal 760: 6 IC 81:

14 CWN 945.”84

A statement made by the Finance Minister while proposing amendment could,

it was held, be taken judicial notice of. Judicial notice would be taken of the fact

that “such a statement of the reason was given in the course of such a speech”.

83 (1976) 1 SCC 254
84 Id, at page 272

77
PART G

In Onkar Nath v The Delhi Administration85, another Bench of three judges

elaborated upon Section 57(4). Justice YV Chandrachud, speaking for the

Court, held thus:

“6. One of the points urged before us is whether the courts
below were justified in taking judicial notice of the fact that on
the date when the appellants delivered their speeches a
railway strike was imminent and that such a strike was in fact
launched on May 8, 1974.
Section 56 of the Evidence Act
provides that no fact of which the Court will take judicial notice
need be proved.
Section 57 enumerates facts of which the
Court “shall” take judicial notice and states that on all matters
of public history, literature, science or art the Court may resort
for its aid to appropriate books or documents of reference. The
list of facts mentioned in
Section 57 of which the Court can take
judicial notice is not exhaustive and indeed the purpose of the
section is to provide that the Court shall take judicial notice of
certain facts rather than exhaust the category of facts of which
the Court may in appropriate cases take judicial notice.

Recognition of facts without formal proof is a matter of
expediency and no one has ever questioned the need and
wisdom of accepting the existence of matters which are
unquestionably within public knowledge. (See Taylor, 11th
Edn., pp. 3-12; Wigmore,
Section 2571, footnote; Stephen's
Digest, notes to
Article 58; Whitley Stokes' Anglo-Indian
Codes, Vol. II, p. 887.) Shutting the judicial eye to the existence
of such facts and matters is in a sense an insult to
commonsense and would tend to reduce the judicial process
to a meaningless and wasteful ritual. No court therefore insists
on formal proof, by evidence, of notorious facts of history, past
or present. The date of poll, the passing away of a man of
eminence and events that have rocked the nation need no
proof and are judicially noticed. Judicial notice, in such matters,
takes the place of proof and is of equal force.”86

In Baburao Alias P B Samant v Union of India87, the court observed thus:

“31. The Lok Sabha Debates and the Rajya Sabha Debates
are the journals or the reports of the two Houses of Parliament
which are printed and published by them. The court has to take
judicial notice of the proceedings of both the Houses of

85 (1977) 2 SCC 611
86 Id, at page 614
87 1988 (Supp.) SCC 401

78
PART H

Parliament and is expected to treat the proceedings of the two
Houses of Parliament as proved on the production of the
copies of the journals or the reports
containing proceedings of the two Houses of Parliament which
are published by them.”88

These observations were in the context, specifically, of the provisions of the

Evidence Act, including Section 57(4). The court held that the production of

debates of the Lok Sabha and Rajya Sabha containing the proceedings of the

two Houses of Parliament, relating to the period between the time when the

resolutions were moved in each of the two Houses and the time when the

resolutions were duly adopted amounted to proof of the resolutions. The court

was required to take judicial notice under Section 57.

H          Conclusion

69 The issue which has been referred to the Constitution Bench is whether

the report of a Parliamentary Standing Committee can be relied upon in a

proceeding under Article 32 or Article 136 of the Constitution. Allied to this is

whether parliamentary privileges and the doctrine of separation of powers

(shades of which find expression in the often-used phrase ‘the delicate

balance’) impose restraints on the ability of the court to seek recourse to

parliamentary reports.

88 Id, at page 414

79
PART H

70 In finding an answer to the questions in reference, this Court must of

necessity travel from a literal and perhaps superficial approach, to an

understanding of the essence of what the Constitution seeks to achieve. At one

level, our Constitution has overseen the transfer of political power from a

colonial regime to a regime under law of a democratic republic. Legitimizing the

transfer of political power is one, but only one facet of the Constitution. To focus

upon it alone is to miss a significant element of the constitutional vision. That

vision is of about achieving a social transformation. This transformation which

the Constitution seeks to achieve is by placing the individual at the forefront of

its endeavours. Crucial to that transformation is the need to reverse the

philosophy of the colonial regime, which was founded on the subordination of

the individual to the state. Liberty, freedom, dignity and autonomy have

meaning because it is to the individual to whom the Constitution holds out an

assurance of protecting fundamental human rights. The Constitution is about

empowerment. The democratic transformation to which it aspires places the

individual at the core of the concerns of governance. For a colonial regime,

individuals were subordinate to the law. Individuals were subject to the authority

of the state and their well-being was governed by the acceptance of a destiny

wedded to its power. Those assumptions which lay at the foundation of colonial

rule have undergone a fundamental transformation for a nation of individuals

governed by the Constitution. The Constitution recognises their rights and

entitlements. Empowerment of individuals through the enforcement of their

rights is the essence of the constitutional purpose. Hence, in understanding the

80
PART H

issues which have arisen before the Court in the present reference, it is well to

remind ourselves that since the Constitution is about transformation and its

vision is about empowerment, our reading of precepts drawn from a colonial

past, including parliamentary privilege, must be subjected to a nuance that

facilitates the assertion of rights and access to justice. We no longer live in a

political culture based on the subordination of individuals to the authority of the

State. Our interpretation of the Constitution must reflect a keen sense of

awareness of the basic change which the Constitution has made to the polity

and to its governance.

71 A distinguished South African Judge, Albie Sachs has spoken of the

importance of understanding the value of constitutional transformation. In his

book titled ‘The Strange Alchemy of Life and Law’89, explaining the role of the

constitutional court, Sachs has this to say:

“It is difficult to analyse the impact that court decisions have on
actual historical events. It may well be that the publicity given
to the case, and the evidence and arguments presented had
more impact on public life than did the actual decision. Yet any
amount of forensic combat, however bitter and prolonged, is
better than a single bullet. Submitting the harsh conflicts of our
times to legal scrutiny – conducted transparently and in the
light of internationally accepted values of fairness and justice –
was a telling rebuttal of mercenarism and violence, whether
from or against the State. It responded in a practical way to
the immediate issues, and at the same time induced
governments, judiciaries, and law enforcement agencies in
three countries to engage with each other and carefully
consider their powers and responsibilities under the
international law. It reaffirmed to the South African public that
we were living in a constitutional democracy in which all
exercises of power were subject to constitutional control.

It said something important about the kind of country in which

89 Justice Albie Sachs, The Strange Alchemy of Life and Law (Oxford University Press 2009) pages 32-33.

81
PART H

we lived and about the importance of principled and reasoned
debate. It underlined that we had moved from a culture of
authority and submission to the law, to one of justification
and rights under the law.” (emphasis supplied)

72 In India, no less than in South Africa it is important to realise that citizens

live in a constitutional democracy in which every exercise of power is subject

to constitutional control. Every institution of the State is subject to the

Constitution. None lies above it. The most important feature of Sachs’ vision

relevant to our Constitution is that Indian society must move “from the culture

of authority and submission to the law, to one of justification and rights under

the law”.

73 Once we place the fulfilment of individual rights and human freedoms at

the forefront of constitutional discourse, the resolution of the present case

presents no difficulty. Individuals access courts to remedy injustice. As

institutions which are committed to the performance of a duty to facilitate the

realisation of human freedom, High Courts as well as this Court are under a

bounden obligation to seek and pursue all information on the causes of

injustice. Where the work which has been performed by a coordinate

constitutional institution – in this case a Parliamentary Committee, throws light

on the nature of the injustice or its causes and effects, constitutional theory

which has to aid justice cannot lead us to hold that the court must act oblivious

to the content of the report. History and contemporary events across the world

are a reminder that black-outs of information are used as a willing ally to

82
PART H

totalitarian excesses of power. They have no place in a democracy. Placing

reliance on the report of a Parliamentary Committee does not infringe

parliamentary privilege. No Member of Parliament is sought to be made liable

for what has been said or for a vote tendered in the course of a debate. The

correctness or validity of the report of a Parliamentary Committee is not a

matter which can be agitated before the Court nor does the Court exercise such

a function. Where an issue of fact becomes contentious, it undoubtedly has to

be proved before a court independently on the basis of the material on the

record. In other words, where a fact referred to in the report of the Parliamentary

Committee is contentious, the court has to arrive at its own finding on the basis

of the material adduced before it.

74 Parliamentary Committees are an intrinsic part of the process by which

the elected legislature in a democracy exacts accountability on the part of the

government. Department related Parliamentary Standing Committees

undertake the meticulous exercise of scrutinizing the implementation of law,

including welfare legislation and the performance of the departments of the

State. The purpose of law is to promote order for the benefit of the citizen and

to protect rights and entitlements guaranteed by the Constitution and by statute.

Access to justice as a means of securing fundamental freedoms and realizing

socio-economic entitlements is complementary to the work of other organs of

the State. The modern doctrine of separation of powers has moved away from

a ‘one organ – one function’ approach, to a more realistic perspective which

83
PART H

recognizes the complementarity in the work which is performed by institutions

of governance. Judicial review is founded on the need to ensure accountable

governance in the administration of law as an instrument of realizing the rights

guaranteed by the Constitution. If the function of judicial review in facilitating

the realization of socio-economic rights is construed in the context of the

modern notion of separation of powers, there is no real conflict between the

independence of the judicial process and its reliance on published reports of

Parliamentary Committees. Ultimately it is for the court in each case to

determine the relevance of a report to the case at hand and the extent to which

reliance can be placed upon it to facilitate access to justice. Reports of

Parliamentary Committees become part of the published record of the State.

As a matter of principle, there is no reason or justification to exclude them from

the purview of the judicial process, for purposes such as understanding the

historical background of a law, the nature of the problem, the causes of a social

evil and the remedies which may provide answers to intractable problems of

governance. The court will in the facts of a case determine when a matter which

is contentious between the parties would have to be adjudicated upon

independently on the basis of the evidence adduced in accordance with law.

In the circumstances, the reference is answered by holding that:

(i) As a matter of principle, there is no reason why reliance upon the report

of a Parliamentary Standing Committee cannot be placed in proceedings

under Article 32 or Article 136 of the Constitution;

84
PART H

(ii) Once the report of a Parliamentary Committee has been published,

reference to it in the course of judicial proceedings will not constitute a

breach of parliamentary privilege;

(iii) The validity of the report of a Parliamentary Committee cannot be called

into question in the court. No Member of Parliament or person can be

made liable for what is stated in the course of the proceedings before a

Parliamentary Committee or for a vote tendered or given; and

(iv) When a matter before the court assumes a contentious character, a

finding of fact by the court must be premised on the evidence adduced

in the judicial proceeding as explained in paragraphs 67 and 73.

75 The issues framed for reference are accordingly answered.

76 The proceedings may now be placed before the Hon’ble Chief Justice for

assignment of the case for disposal.

………........................................J
[A K SIKRI]

...….............................................J
[Dr D Y CHANDRACHUD]

New Delhi;

May 9, 2018.

85
1

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 558 OF 2012

KALPANA MEHTA AND ORS.   ... PETITIONERS

VERSUS

UNION OF INDIA AND ORS.    ... RESPONDENTS

WITH WRIT PETITION (C) NO. 921 OF 2013(PIL­W)

J U D G M E N T

ASHOK BHUSHAN, J.

This Constitution Bench is required to answer some

important   Constitutional   issues   which   also   involve

issues   relating   to   delicate   balance   between   the

Parliament   and   the   Judiciary.   The   Hon'ble   Chief

Justice   has   circulated   His   Lordships'   judgment   which

has   been   carefully   read   by   me.   Although   I   am   in

substantial agreement with the conclusions arrived by

My   Lord   the   Chief   Justice,   but   looking   to   the

importance of the issues involved I have penned my own
2

views  conclusions.

2. Whether acceptance and reliance on a Parliamentary

Standing Committee Report by this Court while hearing

a   Public   Interest   Writ   Petition   amount   to   breach   of

any   privilege   of   the   Parliament,   is   the   sum  

substance   of   the   questions   referred   to   this

Constitution Bench. During course of hearing of these

Writ   Petitions,   learned   senior   counsel   of   respondent

No. 8 (M.S.D. Pharmaceuticals Private Limited) raised

objection   regarding   admissibility     consideration   of

the   Parliamentary   Committee   Report,   considering   which

objections following two questions have been referred

to be answered: 

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

(ii) Whether such a Report can be looked
at for the purpose of reference and, if
so,   can   there   be   restrictions   for   the
purpose of reference regard being had to
the   concept   of   parliamentary   privilege
and   the   delicate   balance   between   the
constitutional   institutions   that
Articles   105,   121   and   122   of   the
Constitution conceive?”
3

3. The background facts as disclosed by the two writ

petitions giving rise to the above two questions need

to be noted now:

WRIT PETITION (C) NO.558 OF 2012

The Writ Petition as a Public Interest Litigation

has been filed by three petitioners, petitioner Nos.1

and 2 claim to be working for women health whereas the

Petitioner   No.3   is   a   registered   Society   working   with

women   organisations   to   help   them   to   improve   their

lives   and   livelihood   and   to   seek   justice   for

marginalised   communities.   In   July,   2009,   the

petitioners became aware of a so called demonstration

project   work   being   carried   out   in   States   of   Andhra

Pradesh   and   Gujarat   by   PATH   (respondent   No.6),   a   US

based   NGO   along   with   the   Indian   Council   of   Medical

Research(ICMR)   and   Governments   of   Andhra   Pradesh   and

Gujarat.   In   the   above   project   about   32,000   young

adolescent girls in the age group of 10­14 years were

to   be   administered   HPV   (Human   Papilloma   Virus)

vaccines   purported   to   be   effective   in   preventing
4

cervical   cancer.   HPV   vaccine,   namely,   “Gardasil”   is

manufactured   by   respondent   No.7­   Glaxosmithkline   Asia

Pvt.   Ltd.   and   “Cervarix”   by   respondent   No.8­   M.S.D.

Pharmaceuticals   Private   Limited,   licenced   in   India

only in July, 2008 and September, 2008 respectively by

Drug Controller General of India.

4. In July, 2009 vaccine Gardasil in Khammam District

in   Andhra   Pradesh   was   administered.   Few   girl   childs

died. Health activists wrote to the Ministry of Health

pointing   out   concern   about   irregularities   and   health

risk   of   the   HPV   vaccine.   Women   organisation   sent

representations   and   also   conducted   a   fact   finding

enquiry.   On   15th  April,   2010,   Government   of   India

appointed   a   Committee   to   enquire   into   “alleged

irregularities   in   the   conduct   of   studies   using   Human

Papilloma   Virus(HPV)   vaccine”   by   PATH   in   India.   The

final report of Committee was submitted on 15.02.2011.

Enquiry   committee   noted   several   discrepancies.   The

Parliamentary   Standing   Committee   of   Department   of

Health Research, Ministry of Health and Family Welfare
5

while   examining   the   demand   for   grants   (2010­11)   of

Department   of   Health   Research   took   up   the   issue   of

trial   of   HPV   vaccine   on   children   in   Districts   of

Khammam,   Andhra   Pradesh   and   Vadodara,   Gujarat.

Parliamentary Standing Committee (hereinafter referred

to   as   “P.S.C.”)   deliberated   on   the   subject   and   held

various   meetings.   The   Committee   heard   the   UOI,   ICMR,

Department   of   Drugs   Controller   General   of   India   and

also   took   oral   evidence.   The   Departmental   Standing

Committee   submitted   its   report   (72nd  Report)   to   Rajya

Sabha on 30th  August, 2013 which was also laid on the

table   of   Lok   Sabha   on   30th  August,   2013.   The   P.S.C.

found   various   shortcomings   and   lapses   of   the

Government Departments, ICMR as well as on part of the

respondent   Nos.6   to   8.   Various   directions   and

recommendations were issued by the Committee.  Again a

detailed   report,   namely,   81st  Report   on   “action   taken

by the Government on the recommendations/ observations

contained   in   the   72nd  Report   on   the   alleged

irregularities   in   the   conduct   of   studies   using   Human

Papilloma   Virus(HPV)   vaccine   by   PATH”   in   India   was
6

submitted   to   Rajya   Sabha   on   23rd  December,   2014   and

also laid on the table of Lok Sabha on 23rd  December,

2014. Both the reports have been brought on record.

Writ Petition (C) No. 921 of 2013

5. The Writ Petition as a Public Interest Litigation

has been filed by petitioners of which petitioner Nos.

1 and 2 are public trusts and petitioner Nos. 3 and 4

are   registered   societies.     The   petitioners   have

questioned   the   methods   in   which   clinical   trials   for

medicines including vaccines are taking place in this

country   to   the   disadvantage   of   vulnerable   groups   in

the   society   including   the   poor,   tribal,   women   and

children.     The   facts   and   pleadings   in   the   writ

petition   are   on   the   line   of   facts   and   pleadings   as

contained in Writ Petition (c) No. 558 of 2012, hence

are not repeated for brevity. Petitioners have prayed

for   various   reliefs   including   declaration   that   HPV

Vaccine   Observational   Study   Demonstration   Project   was

a   Phase   IV   clinical   trial   within   the   meaning   of

various   Rules   in   Drugs   and   Cosmetics   Rules,   1945.
7

Petitioners   have   made   several   prayers   including   the

prayers   for   grant   of   compensation   and   direction   for

investigation by Special Investigation Team of various

offences committed by respondent Nos. 2 to 8.

6. In   both   the   writ   petitions,   most   of   materials

including   fact   finding   enquiry   conducted   by   the

petitioner   No.1   in   Writ   Petition   (C)   No.   921   of

2013(PIL­W),   newspapers   reports,   articles,

representations,   correspondence   have   been   referred   to

and relied. Apart from other materials, reference and

reliance on 72nd  Report presented on  30th  August,  2013

and   81st  Report   presented   on   23rd  December,   2014   to

Rajya Sabha have also been placed. 

7. A two Judge Bench of this Court while hearing the

writ petitions has posed several questions and issued

various   directions.   In   this   context   the   Court   passed

various   directions   on   12.08.2014,   13.01.2015   and

17.11.2015. 

8

8. When   the   matter   was   heard   on   18.11.2015   by   two

Judge   Bench   this   Court   Stated   :   “Be   it   noted,   a

substantial   issue   in   law   has   arisen   in   course   of

hearing   of   this   case   which   pertains   to   exercise   of

power   of   judicial   review   when   a   report   of   the

Parliamentary   Standing   Committee   is   filed   before   the

Court.”    After hearing the parties on 18.11.2015 the

two   Judge   Bench   of   this   Court   by   a   detailed   order

dated   05.04.2017   has   referred   two   questions   as   noted

above to be answered by a Constitution Bench.

SUBMISSIONS

9. We have heard Shri Colin Gonsalves, learned senior

advocate   for   petitioner   in   Writ   Petition   (C)

No.558/2012   and   Shri   Anand   Grover,   learned   senior

advocate for petitioner in Writ Petition (C) No.921 of

2013.   Shri   Harish   Salve   and   Shri   Gourab   Banerji,

learned senior advocates have appeared for respondent

No.8­MSD   Pharmaceuticals   Private   Limited.  Shri   Shyam

Divan,   learned   senior   advocate   has   appeared   for   PATH

International. We have also heard Shri K.K.Venugopal,

learned Attorney General of India.

9

10. Shri   Salve   submits   that   Parliamentary   Committee

Report  can neither  be looked into nor relied  by this

Court. Shri Salve, however, submits that there are two

areas   where   Parliamentary   Committee   Report   can   be

relied   i.e. (a) legislative history of a statute and

(b) Minister's statement in the House.  The Members of

Parliament   as   well   as   those   who   appear   before   the

Parliamentary   Committee   are   fully   protected   by   the

legislative   privileges   of   the   members   as   well   as   of

the   Houses.   Article   105   sub­clause   (2)   of   the

Constitution   of   India   provides   that   no   member   of

Parliament   shall   be   liable   to   any   proceedings   in   any

court in respect of anything said or any vote given by

him in Parliament or any committee thereof. He further

submits   that   as   per   Article   105   sub­clause   (3)   the

powers,   privileges   and   immunities   of   each   House   of

Parliament,   and   of   the   members   and   the   committees   of

each   House,   is   same   as   of   those   of   the   House   of

Commons   as   it   exists   on   26th  November,   1950.   Article

105 sub­clause (4) extends the privileges as referred

to in clauses (1), (2) and (3) to all persons who have
10

the right to speak in, and otherwise to take part in

the   proceedings   of   any   House   of   Parliament   or   any

committee   thereof.   Evidence   led   in   a   Court   cannot   be

criticised.   Same   principles   can   apply   with   regard   to

evidence   taken   by   a   Parliamentary   Committee.   A

committee of Parliament is part of Parliament.

 

11. The principal submission which has been canvassed

by   Shri   Salve   is   that   there   being   legislative

privilege of all acts done in the Parliament including

report   of   Parliamentary   Committee,   the   report   cannot

be   challenged   in   a   Court   of   Law.   He   submits   that

reliance   of   a   Parliamentary   Committee   Report   also

involves   a   challenge   to   the   report   by   other   parties.

No adjudication can be entertained by this Court with

regard   to   a   Parliamentary   Committee   Report,   hence

reliance placed by the petitioner on the Parliamentary

Committee Report is misplaced.

 

12. Relying on Article IX of Bill of Rights 1688, Shri

Salve   submits   that   it   confers   on   'proceedings   in
11

Parliament'   protection   from   being   'impeached   or

questioned' in any 'court or place out of Parliament'.

He   submits   that   Indian   Parliament   is   conferred   the

same   privileges   which   are   enjoyed   by   the   House   of

Commons,   hence   Parliamentary   Committee   Report   can

neither be relied nor questioned in any Court of Law.

Shri   Salve   referred   to   various   English   cases   and

several   judgments   of   this   Court   which   shall   be

referred   to   while   considering   the   submissions   in

detail.

13. Shri K.K. Venugopal, learned Attorney General also

contends   that   Parliamentary   Reports   cannot   be   relied

in  Court. He submits  that although there is no  rigid

separation of powers in the three wings of States but

each   wing   of   the   States   works   in   its   own   sphere.

Parliament   is   supreme   in   its   proceedings   which

proceedings cannot be questioned in any Court of Law.

The   Parliamentary   Reports   cannot   be   made   subject

matter of an issue in any proceeding of Court of Law

or  even in  a  public interest  litigation.   He submits
12

that all wings of the States have to work in their own

spheres so as not to entrench upon the sphere allotted

to other wing of State. He submitted that referring to

a   report   of   Parliamentary   Committee   is   a   sensitive

issue   of   jurisdiction   between   Courts   and   Parliament

which   should   be   avoided   by   this   Court.     When   the

courts   cannot   adjudicate   on   Parliamentary   Committee

Report, what is the use of looking into it. Referring

to   Section   57(4)   of   the   Evidence   Act,   1872   which

provides that the Court shall take judicial notice of

the proceedings of the Parliament and the Legislature

established under any law for the time being in force,

he   submits   that   the   substitutions   were   made   in   sub­

clause  (4) of Section 57 by Adaptation  Order  of 1950

which were orders issued by the President and were not

amendments   made   by   Parliament   in   Section   57.  He

submits   that   by   Adaptation   Order   various   words   which

were   earlier   used   in   Evidence   Act,   1872   were   changed

after adoption of Constitution which cannot be treated

to   be   an   act   done   by   conscious   deliberation   of

Legislature. He submits that historical facts as well
13

as   statement   of   Minister   in   Parliament   can   be   used

with   which   there   cannot   be   any   quarrel.   He,   however,

submits   that   inferences   in   Parliamentary   Committee

Report   are   not   acceptable.   He   submits   that   when   any

litigant   wants   to   prove   a   fact,   he   has   to   search

material and produce evidence and he cannot be allowed

to   take   a   shortcut   by   placing   reliance   on   the

Parliamentary   Committee   Report.   Parliamentary

Committee Report, is, in a manner, a speech.   Article

105 of the Constitution does not make any distinction

with reports which can be termed to as Social Welfare

Reports   or   other   kinds   of   reports.   He   submits   that

there   is   total   bar   in   looking   into   the   Reports   of

Parliament   based   on   separation   of   power   and   express

provisions   of   Article   105(2)   and   105(4)   of   the

Constitution of India. The very fact that Speaker can

say ‘no’ with regard to any parliamentary material, it

has   to   be   assumed   that   they   operate   as   total   bar   on

use   of   parliamentary   material   as   evidence.   The

protection which is extended to a Member of Parliament

is also extended to the  Parliamentary proceedings and
14

Parliamentary reports.

14. Shri   Colin   Gonsalves,   learned   senior   counsel

appearing   for   the   petitioner   submits   that   the

petitioner   does   not   intend   to   challenge   any   part   of

the   Parliamentary   Committee   Report.  The   Writ

Petitioner   seeks   nothing   which   may   give   rise   to   any

question   of   breach   of   Parliamentary   privileges.   The

writ petitioner is  not asking this Court to take any

facts stated in Parliamentary Report to be conclusive

except   which   is   permissible   under   Section   57   of

Evidence Act, 1872. As per the Evidence Act, 1872, the

Parliamentary   proceedings   are   public   documents   which

are   admissible   in   evidence.   The   petitioner   does   not

ask   for   issuing   any   mandamus   to   enforce   the

Parliamentary   Committee   Report.   The   cases   cited   by

Shri Harish Salve in support of his submissions relate

to   breach   of   privileges   of   members   of   Parliament

whereas present is not a case involving any breach of

any privileges of a member of Parliament. Neither any

question   is   being   raised   in   the   Writ   Petition
15

questioning   any   action   or   conduct   of   any   member   of

Parliament   nor   petitioner   is   asking   to   initiate   any

proceeding   against   any   member   of   Parliament.   He

submits that facts noticed and stated in Parliamentary

report can very well be relied. The Parliament by its

procedure permits the Committee Report to be filed in

the Court, hence there is no prohibition in the Court

in looking into the Parliamentary Report.

15. It is further submitted that in the present case,

it is the Executive, which is trying to protect itself

taking   shield   of   Parliamentary   privileges   whereas

Parliament   does   not   take   objection   or   offence   of   its

reports   being   relied   and   used.   When   the   reports   are

published   by   Parliament   the   process   is   over   and

thereafter   there   is   no   prohibition   on   reports   being

filed as evidence and used by all concern. This court

should   follow   the   principles   of   the   comity   of   the

institution   instead   of   relying   on   principles   of

separation   of   power   and   conflict   of   the   institution.

Under the Right to Information Act, the Parliamentary
16

Reports can be sought for and used by all concern. The

present is an age of transparency, in which period the

respondent cannot be heard in saying that benefits of

report should be blacked out from the courts.

16. The   72nd  and   81st  Parliamentary   Committee   Reports

play   a   very   important   role   since   they   unearth   the

events   of   the   illegal   vaccination   done   on   poor   and

malnourished   young   tribal   girls   and   further   it   has

commented adversely on the role of Government agencies

such as ICMR and DGCI and the State of Andhra Pradesh

and   Gujarat.   The   Government   officials   had   appeared

before   the   Parliamentary   Committee   and   admitted

several wrong doings.

17. Shri   Anand   Grover,  learned   senior   advocate

appearing for petitioners in Writ Petition (C) No.921

of   2013   has   adopted   most   of   the   submissions   of   Shri

Colin   Gonsalves   but   has   raised   certain   additional

submissions.   Shri   Grover   submits   that   truth   and

contents   of   documents   are   two   entirely   different
17

things.   When   document   is   admitted   what   is   proved   is

document   and   contents   and   not   the   truth.   He   submits

that there is no question of challenging the findings

of   the   Parliamentary   Committee’s   Report   nor   the

reports   are   being   questioned   in   this   Court.   Shri

Grover   has   also   referred   to   several   English   cases   as

well   as   judgments   of   Australian   High   Court,   U.S.

Supreme Court and of this Court. Referring to Section

16(3)   of   the   Australian   Parliamentary   Privileges   Act

1987,   Shri   Grover   submits   that   law   as   applicable   in

Australia by virtue of Section 16(3) is not applicable

in   India   nor   has   been   accepted   as   law   applicable   in

United   Kingdom.   He   submits   that   Parliamentary

Committee   Report   which   is   a   measure   of   social

protection   should   be   looked   into   by   the   Court   while

rendering   justice   to   the   common   man   especially   in

Public Interest Litigation.

18. Shri   Grover   further   submits   that   Parliamentary

Committee   Reports   can   be   relied   only   when   they   are

published   and   becomes   a   public   document.   He   submits
18

that   statements   can   be   looked   into   from   the

Parliamentary Committee Report but not the inferences

and findings. The Parliamentary Committee Reports have

been obtained from the House and no kind of privilege

is involved.

19. Shri   Shyam   Divan,   learned   senior   advocate

appearing   for   PATH   submits   that   PATH   is   a   non­profit

body operating in area of health. Referring to Section

57  of the Evidence Act, Shri  Divan  Submits that sub­

section (4) of  Section 57 uses the  phrase 'course of

proceeding'. He submits that the expression ‘course of

proceeding’   does   not   comprehend   the   Parliamentary

reports.   He   submits   that   when   in   this   Court   anyone

traverses   or   controverts   a   Parliamentary   Committee

Report, it is not in the interest of the comity of the

institutions.   He   submits   that   references   to

Parliamentary   proceedings   are   possible   only   in   two

areas i.e. in interpreting a Legislation and Statement

of a Minister. He submits that entire report is to be

examined as a whole.  The answering respondent in Writ
19

Petition   (C)   No.921   of   2013   in   its   counter   affidavit

has   challenged   the   veracity   of   the   findings   of   the

Parliamentary   Standing   Committee   Report.   The

Parliamentary Committee is the functional organ of the

Parliament   which   also   enjoys   the   privileges   and

immunity   provided   under   Article   105(2)   of   the

Constitution   of   India.   The   reports   of   Parliamentary

Committee   are   not   amenable   to   judicial   review.

Parliamentary Standing Committee Reports are not to be

relied   in   court   proceedings   in   as   much   as   traversing

or   contesting   the   content   of   report,   it   may   cause

breach   of   Parliamentary   privileges   under   Article   105

and   Article   122   of   the   Constitution   of   India.

Challenge   to   such   reports   may   invite   contempt

proceedings   by   Parliament   for   breach   of   privileges.

The   Parliamentary   reports   cannot   be   basis   for   any

action   in   law   both   criminal   and   civil   in   any   court

including Writ Petition or Public Interest Litigation.

20. Shri   Gourab   Banerji,   learned   senior   advocate,

replying   the   submissions   of   Shri   Colin   Gonsalves   and
20

Shri   Anand   Grover,   submits   that   recommendations   and

conclusions   of   Parliamentary   Committee   Reports   cannot

be relied. A moment there is a fact finding in report,

it cannot be looked into.

21. We   have   considered   above   submissions   and   perused

the   record.   For   answering   the   two   questions   referred

to this Constitution Bench, as noted above, we need to

consider the following issues:

a.   Whether   by   accepting   on   record   a
Parliamentary   Standing   Committee's   Report   by
this Court in a case under 
Article 32 or 136,
any privilege of Parliament is breached. 

b.   In   the   event,   a   Parliamentary   Standing
Committee's   Report   can   be   accepted   as   an
evidence,   what   are   the   restrictions   in   its
reference  and   use   as   per  the   parliamentary
privileges enjoyed by the Legislature of this
country. 

c. Whether in traversing and questioning the
reports, the private respondents may invite a
contempt of House. 

22. The above issues being inter­connected, we proceed
21

to examine all the issues together. While considering

the   above   issues,   we   have   divided   our   discussion   in

different   sub­heads/   topics   for   overall   understanding

of   parliamentary   privileges   enjoyed   by   the   Indian

Legislature. 

A. PARLIAMENTARY PRIVILEGES

23. The   origin   and   evolution   of   parliamentary

privilege   is   traceable   from   High   Court   of   British

Parliament.     In   the   early   period   of   British   History,

the High Court of Parliament assisted the Crown in his

judicial   functions.     The   High   Court   of   Parliament

started sitting in two parts i.e.   House of Lords and

House of Commons.   Gradually, both the Houses claimed

various privileges which were recognised.  Some of the

privileges   were   claimed   by   both   the   Houses   as   rights

from   ancient   times   and   some   of   the   privileges   were

statutorily   recognised.   A   significant   parliamentary

privilege   is   recognised   and   declared   by   Article   IX.

Bill   of   Rights,   1688   which   conferred   on   'proceedings

in   Parliament   protection   from   being   'impeached'   or
22

'questioned' in any court or place out of Parliament'.

By   the   end   of   19th  Century   most   of   the   parliamentary

privileges of House of Commons were firmly established

and recognised by the Courts also. 

24. Erskine   May  in   his   treaties  'Parliamentary

Practice',   Twenty­fourth   Edition'   has   elaborately

dealt with the privileges of Parliament and all other

related   aspects.   In   Chapter   XII   of   the   Book,   Erskine

May states about what constitutes the privilege:

“Parliamentary   privilege   is   the   sum   of
certain   rights   enjoyed   by   each   House
collectively as a constituent part of the
High Court of Parliament; and by Members
of each House individually, without which
they could not discharge their functions,
and which exceed those possessed by other
bodies   or   individuals.   Some   privileges
rest   solely   on   the   law   and   custom   of
Parliament,   while   others   have   been
defined by stature.” 

25. The   term   'parliamentary   privilege'   refers   to   the

immunity and powers possessed by each of the Houses of

the   Parliament   and   by   the   Members   of   the   Parliament,

which   allow   them   to   carry   out   their   parliamentary

functions   effectively.   Enumerating   few   rights   and
23

immunities Erskine May states:

"Certain   rights   and   immunities   such   as
freedom from arrest or freedom of speech
belong primarily to individual Members of
each   House   and   exist   because   the   House
cannot   perform   its   functions   without
unimpeded   use   of   the   services   of   its
Members.   Other   rights   and   immunities,
such as the power to punish for contempt
and   the   power   to   regulate   its   own
constitution,   belong   primarily   to   each
House   as   a   collective   body,   for   the
protection   of   its   Members   and   the
vindication   of   its   own   authority   and
dignity.   Fundamentally,   however,   it   is
only   as   a   means   to   the   effective
discharge of the collective functions of
the House that the individual privileges
are   enjoyed   by   Members.   The   Speaker   has
ruled   that   parliamentary   privilege   is
absolute. 

When   any   of   these   rights   and   immunities
is   disregarded   or   attacked,   the   offence
is   called   a   breach   of   privilege,   and   is
punishable   under   the   law   of   Parliament.
Each   House   also   claims   the   right   to
punish contempts, that is, actions which,
while   not   breaches   of   any   specific
privilege,   obstruct   or   impede   it   in   the
performance   of   its   functions,   or   are
offences   against   its   authority   or
dignity,   such   as   disobedience   to   its
legitimate   commands   or   libels   upon
itself, its Members or its officers. The
power   to   punish   for   contempt   has   been
judicially   considered   to   be   inherent   in
each   House   of   Parliament   not   as   a
necessary   incident   of   the   authority   and
functions   of   a   legislature   (as   might   be
24

argued in respect of certain privileges)
but   by   virtue   of   their   descent   from   the
undivided High Court of Parliament and in
right   of   the   lex   et   consuetudo
parliamenti.”

26. The Halsbury's Laws of England, Fifth Edition Vol.

78,   while   tracing   the   'origin   and   scope   of

privileges', states following:

"1076. Claim   to   rights   and   privileges.
The   House   of   Lords   and   the   House   of
Commons   claim   for   their   members,   both
individually   and   collectively,   certain
rights and privileges which are necessary
to   each   House,   without   which   they   could
not discharge their functions, and which
exceed   those   possessed   by   other   bodies
and   individuals.   In   1705   the   House   of
Lords   resolved   that   neither   House   had
power   to   create   any   new   privilege   and
when   this   was   communicated   to   the
Commons, that House agreed. Each House is
the   guardian   of   its   own   privileges   and
claims to be the sole judge of any matter
that may arise which in any way impinges
upon them, and, if it deems it advisable,
to punish any person whom it considers to
be guilty of a breach of privilege or a
contempt of the House.”

27. The   privileges   of   the   Indian   Legislatures   have

also gradually developed alongwith the progress in the

constitutional   development   of   the   country.     The

Government   of   India   Act,   1919   and   1935   constitute
25

successive   milestone   in   the   development   of   the

legislative bodies in India.   The Government of India

Act, 1935 has been referred to as Constitution Act by

Privy Council.

28. Dr. B. R. Ambedkar, the Chairman of the Drafting

Committee   while   debating   on   draft   Article   85(Article

105   of   the   Constitution   of   India)   and   draft   Article

169(Article   194   of   the   Constitution   of   India)   has

referred to Erskine May's 'Parliamentary Practice' as

a source book of knowledge with regard to immunities,

privileges of Parliament. The Constitution of India by

Article   105   and   Article   194   gives   constitutional

recognition   of   parliamentary   privileges.   We   now

proceed   to   examine   the   constitutional   provisions

pertaining to parliamentary privileges.

29. Article   105   of   the   Constitution   of   India   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
26

are  identical.   To   understand   the   constitutional

scheme,   it is sufficient to refer to Article 105 of

the   Constitution   of   India.     Article   105   of

Constitution   of   India   as   it   exists,   provides   as

follows: 

“105.  Powers,   privileges,   etc,   of   the
Houses   of   Parliament   and   of   the   Members
and committees thereof.­

(1)   Subject   to   the   provisions   of   this
Constitution   and   to   the   rules   and
standing orders regulating the procedure
of Parliament, there shall be freedom of
speech in Parliament.

(2)   No   member   of   Parliament   shall   be
liable to any proceedings in any court in
respect   of   any   thing   said   or   any   vote
given   by   him   in   Parliament   or   any
committee thereof, and no person shall be
so liable in respect of the publication by
or under the authority of either House of
Parliament of any report, paper, votes or
proceedings.

(3)   In   other   respects,   the   powers,
privileges   and   immunities   of   each   House
of Parliament, and of the members and the
committees   of   each   House,   shall   be   such
as   may   from   time   to   time   be   defined   by
Parliament by law, and, until so defined,
[shall be those of that House and of its
members and committees immediately before
the   coming   into   force   of   section   15   of
the Constitution (Forty­fourth 
Amendment)
Act, 1978].

27

(4)   The   provisions   of   clauses   (1),   (2)
and   (3)   shall   apply   in   relation   to
persons   who   by   virtue   of   this
Constitution have the right to speak in,
and   otherwise   to   take   part   in   the
proceedings of, a House of Parliament or
any   committee   thereof   as   they   apply   in
relation to members of Parliament.”

30. Two   amendments   were   made   in   Article   105   sub­

clause   (3)   i.e.   by   Constitution   (Forty   Second   and

Forty Fourth Amendment). Article 105 sub­clause (3) in

its original form was as follows: 

Article   105(3).   In   other   respects,   the
powers, privileges and immunities of each
House   of   Parliament,   and   of   the   members
and   the   committees   of   each   House,   shall
be   such   as   may   from   time   to   time   be
defined by Parliament by law, and, until
so   defined   "shall   be   those   of   the   House
of   Commons   of   the   Parliament   of   the
United   Kingdom,   and   of   its   members   and
committees,   at   the   commencement   of   this
Constitution."

31. Sub­clause (1) of Article 105 of the Constitution

of India gives constitutional recognition to 'freedom

of   speech'   in   Parliament.   Sub­clause   (2)   of   Article

105   enumerates   the   privileges   and   immunities   of

Members   of   Parliament.     There   is   absolute   protection
28

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,   we   are   called   upon   to   examine   the

parliamentary   privileges   with   regard   to   Parliamentary

Standing   Committee's   Report.   According   to   sub­clause

(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 sub­clause (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.

32. We now proceed to sub­clause (3) of Article 105 of

the   Constitution   of   India.   Sub­clause   (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
29

which are not mentioned and referred to in sub­clauses

(1) and (2) of Article 105. Sub­clause (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. 

33. The Constitution Bench in  P. V. Narsimha Rao vs.

State   (CBI/SPE),   (1998)   4   SCC   626  had   elaborately

considered   Article   105   of   the   Constitution   of   India.

In   paragraph   28   and   paragraph   29   of   the   judgment

following has been stated: 

“28.  Clause   (2)   confers   immunity   in
relation to proceedings in courts. It can
be   divided   into   two   parts.   In   the   first
part   immunity   from   liability   under   any
proceedings in any court is conferred on
a   Member   of   Parliament   in   respect   of
anything said or any vote given by him in
Parliament   or   any   committee   thereof.   In
the   second   part   such   immunity   is
conferred   on   a   person   in   respect   of
publication by or under the authority of
either House of Parliament of any report,
paper,   votes   or   proceedings.   This
immunity   that   has   been   conferred   under
clause (2) in respect of anything said or
any vote given by a Member in Parliament
or   any   committee   thereof   and   in   respect
of publication by or under the authority
of   either   House   of   Parliament   of   any
30

report,   paper,   votes   or   proceedings,
ensures   that   the   freedom   of   speech   that
is   granted   under   clause   (1)   of  
Article
105   is   totally   absolute   and   unfettered.

(See:   Legislative   Privileges   case  (1997)
66 DLT 618 (Del) pp. 441, 442.)

29.  Having secured the freedom of speech
in   Parliament   to   the   Members   under
clauses (1) and (2), the Constitution, in
clause   (3)   of  
Article   105,   deals   with
powers, privileges and immunities of the
House   of   Parliament   and   of   the   Members
and   the   committees   thereof   in   other
respects.   The   said   clause   is   in   two
parts. The first part empowers Parliament
to define, by law, the powers, privileges
and   immunities   of   each   House   of
Parliament   and   of   the   Members   and   the
committees   of   each   House.   In   the   second
part,   which   was   intended   to   be
transitional   in   nature,   it   was   provided
that until they are so defined by law the
said   powers,   privileges   and   immunities
shall be those of the House of Commons in
the United Kingdom and of its Members and
committees   at   the   commencement   of   the
Constitution. This part of the provision
was   on   the   same   lines   as   the   provisions
contained in Section 49 of the Australian
Constitution   and   Section   18   of   the
Canadian   Constitution.   Clause   (3),   as
substituted by the Forty­fourth Amendment
of   the   Constitution,   does   not   make   any
change   in   the   content   and   it   only   seeks
to omit future reference to the House of
Commons   of   Parliament   in   the   United
Kingdom while preserving the position as
it stood on the date of the coming into
force of the said amendment.”
31

B. PRIVILEGES OF HOUSE OF COMMONS

34. What   are   the   privileges   of   the   House   of   Commons

which   are   also   enjoyed   by   the   Indian   Parliament   by

virtue   of   sub­clause   (3)   of   Article   105   of   the

Constitution   of   India   need   to   be   examined   for

answering the issues which have arisen in the present

case.

35. While   dealing   with   the   privileges   of   Parliament

Erskine   May   in   his   treatise   'Parliamentary   Practice'

enumerates the following privileges:

1. Freedom of Speech

2. Freedom from Arrest

3. Freedom of Access

4. Favourable Construction

5. Privileges with respect to membership of the 
House

6. Power of commitment for breach of privilege  
or contempt.

36. Halsbury's  Laws  of  England   in  Fifth  Edition  Vol.

78, while dealing with the privileges etc. claimed by

both the Houses 'enumerates privileges':

1. Exclusive cognisance of proceedings

2. Freedom   of   Speech   and   proceedings   in  
32

Parliament

3. Contempts

4. Freedom from Arrest

5. Protection   of   witnesses   and   others   before  
Parliament

6. Power to exclude the public.

37. The main privileges which are claimed by the House

of   Commons   were   noticed   by   the   Constitution   Bench   of

this   Court   in   Special   Reference   No.   1   of   1964   (UP

Assembly Case) AIR 1965 SC 745 in para 73 and 74 which

are quoted as below:

"73.  Amongst   the   other   privileges   are:
the right to exclude strangers, the right
to   control   publication   of   debates   and
proceedings,   the   right   to   exclusive
cognizance   of   proceedings   in   Parliament,
the   right   of   each   House   to   be   the   sole
judge   of   the   lawfulness   of   its   own
proceedings,   and   the   right   implied   to
punish its own members for their conduct
in Parliament Ibid, p. 52­53.

74. Besides these privileges, both Houses
of   Parliament   were   possessed   of   the
privilege   of   freedom   from   arrest   or
molestation,   and   from   being   impleaded,
which   was   claimed   by   the   Commons   on
ground of prescription....”

38. M.   N.   Kaul   and   S.   L.   Shakdher   in   'Practice  

Procedure of Parliament', Seventh Edition published by

Lok Sabha Secretariat have enumerated 'Main privileges
33

of Parliament' to the following effect:

“Main Privileges of Parliament 

Some of the privileges of Parliament and
of   its   members   and   committees   are
specified   in   the   Constitution,   certain
statutes   and   the   Rules   of   Procedure   of
the   House,   while   others   continue   to   be
based on precedents of the British House
of Commons and on conventions which have
grown in this country.

Some   of   the   more   important   of   these
privileges are:

(i) Privileges   specified   in   the
Constitution:

Freedom of speech in Parliament Art.
105(1).

Immunity   to   a   member   from   any
proceedings   in   any   court   in   respect   of
anything   said   or   any   vote   given   by   him
in   Parliament   or   any   committee   thereof
Art. 105(2).

Immunity   to   a   person   from
proceedings   in   any   court   in   respect   of
the   publication   by   or   under   the
authority   of   either   House   of   Parliament
of   any   report,   paper,   votes   or
proceedings Ibid.

Prohibition on the courts to inquire
into proceedings of Parliament 
Art. 122.

Immunity   to   a   person   from   any
proceedings,   civil   or   criminal,   in   any
court in respect of the publication in a
newspaper of a substantially true report
of   any   proceedings   of   either   House   of
34

Parliament   unless   the   publication   is
proved   to   have   been   made   with   malice.

This   immunity   is   also   available   in
relation to reports or matters broadcast
by means of wireless telegraphy 
Art. 361
A.

(ii) Privileges specified in Statutes:

Freedom   from   arrest   of   members   in
civil   cases   during   the   continuance   of
the session of the House and forty days
before   its   commencement   and   forty   days
after   its   conclusion   CPS   s.   135   A­For
further   details,   see   sub­head   'Freedom
from Arrest in Civil Cases' infra.

(iii) Privileges   specified   in   the
Rules   of   Procedure   and   Conduct   of
Business of the House:

Right   of   the   House   to   receive
immediate   information   of   the   arrest,
detention,   conviction,   imprisonment   and
release of a member Rules 229 and 230. 

Exemption   of   a   member   from   service
of   legal   process   and   arrest   within   the
precincts   of   the   House   Rules   232   and

233. 

Prohibition   of   disclosure   of   the
proceedings   or   decisions   of   a   secret
sitting of the House Rule 252.

(iv) Privileges   based   upon   Precedents:

Members   or   officers   of   the   House   cannot
be   compelled   to   give   evidence   or   to
produce   documents   in   courts   of   law,
relating to the proceedings of the House
without   the   permission   of   the   House   1R
(CPR – 1LS).

35

Members   or   officers   of   the   House
cannot be compelled to attend as witness
before   the   other   House   or   a   committee
thereof   or   before   a   House   of   State
Legislature   or   a   committee   thereof
without   the   permission   of   the   House   and
without   the   consent   of   the   member   whose
attendance is required 6R (CPR­2LS).

In   addition   to   the   above­mentioned
privileges   and   immunities,   each   House
also enjoys certain consequential powers
necessary   for   the   protection   of   its
privileges   and   immunities.   These   powers
are:

to commit persons, whether they are
members or not, for breach  of privilege
or   contempt   of   the   House   P.D.,   1961,
Vol.  V­2, Pt.  III, pp. 51­52 (Rajasthan
Vidhan Sabha Case, 10 April 1954) 1974,
Vol. XIX­2, pp. 42­43 and 1975, Vol. XX­
1,   pp.   78   (shouting   of   slogans   and
carrying   of   arms   by   'visitors   to   Lok
Sabha); 
Homi D. Mistry v. Nafisul Hassan
–   the   Blitz   Case,   I.L.R.   1957,   Bombay
218;   the   Searchlight   Case,   A.I.R.   1959
S.C.   395;   C.   Subramaniam's   Case,   A.I.R.

1968, Madras 10.

to   compel   the   attendance   of
witnesses   and   to   send   for   persons,
papers   and   records   Rules   269   and   270,
Harendra   Nath   Barua   v.   Dev   Kant   Barua,
A.I.R. 1958, Assam 160. 

to   regulate   its   procedure   and   the
conduct of its business 
Art. 118(1)

to   prohibit   the   publication   of   its
debates and proceedings, The Searchlight
36

Case and to exclude strangers Rule 387.”

39. The   privileges   of   Indian   Parliament,   which   have

been   enumerated   above,   are   the   privileges   which   were

enjoyed   by   the   British   House   of   Commons.     From   the

parliamentary   privileges   as   enumerated   above,   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   sub­clause   (2)   of   Article   105   of   the

Constitution of India.

40. The question to be considered, is as to whether,

there   is   any   breach   of   privileges   of   Parliament   in

accepting,   referring   and   relying   on   a   Parliamentary

Committee Report by this Court.

C. THE ROLE OF PARLIAMENTARY COMMITTEES

41. The  Parliament   is  legislative  wing  of  the  Union.
37

The Council of Ministers headed by the Prime Minister

is   collectively   responsible   to   the   House   of   the

People.    The role of Parliament is  thus not confined

to   mere   transacting   legislative   business.   In   the

representative   parliamentary   democracy,   the   role   of

Parliament has immensely increased and is pivotal for

the governance of the country.

42. F.  W.  Maitland  in  the  'Constitutional  History  of

England'  while   writing   on   'The   Work   of   Parliament'

stated the following: 

“....But   we   ought   to   notice   that   the   Houses
of   parliament   do   a   great   deal   of   important
work   without   passing   statutes   or   hearing
causes.   In   the   first   place   they   exercise   a
constant   supervision   of   all   governmental
affairs.     The   ministers   of   the   king   are
expected   to   be   in   parliament   and   to   answer
questions,   and   the   House   may   be   asked   to
condemn their conduct..... ”

43. Dr.   Subhash   C.   Kashyap  in  'Parliamentary

Procedure,'  Second   Edition  while   discussing   the

functions of the Parliament stated: 

“Over the years, the functions of Parliament
have no longer remained restricted merely to
legislating. Parliament has, in fact emerged
38

as     a   multi­functional   institution
encompassing in its ambit various roles viz.
developmental,   financial   and   administrative
surveillance,   grievance   ventilation   and
redressal,   national   integrational,   conflict
resolution,   leadership   recruitment   and
training,   educational   and   so   on.     The
multifarious functions of Parliament make it
the   cornerstone   on   which   the   edifice   of
Indian   polity   stands   and   evokes   admiration
from many a quarter. ”

44. The   business   of   Parliament   is   transacted   in

accordance with the rules of procedure as framed under

Article   118   of   the   Constitution   of   India.   Both   the

Houses   of   the   Parliament   have   made   rules   for

regulating  its procedure and conduct of its business.

The   Rajya   Sabha   has   framed   rules,   namely,   'The   Rules

of Procedure and Conduct of Business in the Council of

States(Rajya   Sabha)',   which   were   brought   into   force

w.e.f. 01.07.1964. The Rules of Procedure and Conduct

of Business in Lok Sabha were framed and published in

the Gazette of India Extra­ordinary on 17.05.1952.

45. Various   committees   of   both   Rajya   Sabha   and   Lok

Sabha   are   entrusted   with   enormous   duties   and

responsibilities in reference to the functions of the
39

Parliament.  Maitland  in   'Constitutional   History   of

England'   while   referring   to   the   committees   of   the

Houses of British Parliament noticed the functions of

the committees in the following words: 

“.....Then   again   by   means   of   committees   the
Houses   now   exercise   what   we   may   call   an
inquisitorial   power.     If   anything   is   going
wrong   in   public   affairs   a   committee   may   be
appointed to investigate the matter; witnesses
can be summoned to give evidence on oath, and
if they will not testify they can be committed
for   contempt.   All   manner   of   subjects
concerning   the   public   have   of   late   been
investigated   by   parliamentary   commissions;
thus information is obtained which may be used
as   a   basis   for   legislation   or   for   the
recommendation of administrative reforms.”

46. Chapter IX of the Rajya Sabha Rules dealing with

the   legislation   provides   for   Select   Committees   on

Bills,   procedure   of   the   presentation   after   report   of

the   Select   /   Joint   Committee.   The   Rules   provide   for

various   committees   including   Committee   on   Subordinate

Legislation,   Committee   on   Government   Assurances   and

other   committees.   Chapter   XXII   deals   with

'Departmental   Related   Parliamentary   Standing

Committees'. Rule 268 which provides for 'Departmental

Select Committees' is as follows: 

40

"268. Department­related   Standing

Committees

(1) There shall be Parliamentary
Standing Committees of the Houses
(to   be   called   the   Standing
Committees)   related   to
Ministries/Departments.

(2) Each   of   the   Standing
Committees   shall   be   related   to
the   Ministries/Departments   as
specified in the Third Schedule:

Provided   that   the   Chairman   and   the
Speaker, Lok Sabha (hereinafter referred
to   as   the   Speaker),   may   alter   the   said
Schedule   from   time   to   time   in
consultation with each other.”

47. Rule   270   deals   with   functions   of   the   Standing

Committees which are to the following effect: 

"270. Functions

Each   of   the   Standing   Committees   shall
have the following functions, namely:­

(a) to   consider   the   Demands   for   Grants
of  the  related   Ministries/Department
and report thereon. The report shall not
suggest   anything   of   the   nature   of   cut
motions;

(b) to examine Bills, pertaining to the
related  Ministries/Departments,
referred to the  Committee   by   the
Chairman or the  Speaker,   as   the   case
41

may be, and report  thereon;

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

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

Provided that the Standing Committees
shall  not  consider   matters  of  day–to­day
administration   of   the   related
Ministries/Departments.” 

48. Rule 277 provides that the Report of the Standing

Committee shall have persuasive value. Schedule III of

the   Rules   deals   with   the   'Allocation   of   various

Ministries/Departments   related   to   Parliamentary

Standing Committee'.   At  Item No. 7 is 'Committee on

Health and Family Welfare' which relates to Department

of Health and Family Welfare.

49. Present   is   a   case   where   Parliamentary   Standing

Committee   which   has   submitted   the   report   is   the

Parliamentary Standing Committee on Health and Family

Welfare.    M.   N.   Kaul   and   S.   L.   Shakdher  in   their
42

treatise   on  'Practice   and   Procedure   of   Parliament'

published   by   Lok   Sabha   Secretariat,   dealing   with   the

business of Committees stated the following:

"Parliament   transacts   a   great   deal   of   its
business through Committees. These Committees
are appointed to deal with specific items of
business   requiring   expert   or   detailed
consideration.     The   system   of   Parliamentary
Committees is particularly useful in dealing
with   matters   which,   on   account   of   their
special   or   technical   nature,   are   better
considered   in   detail   by   a   small   number   of
members   rather   than   by   the   House   itself.
Moreover,   the   system   saves   the   time   of   the
House for the discussion of important matters
and prevents Parliament from getting lost in
details and thereby losing hold on matters of
policy and broad principles.”

50. The   reports   which   are   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
43

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. 

D. PUBLICATION OF PARLIAMENTARY REPORTS

51. The   Reports   of   the   Parliamentary   Standing

Committees and other decisions and resolutions of the

Parliament are published under the authority of House.

Publication of proceedings of Parliament serves public

purpose.     Members   of   British   Parliament   in   earlier

years   had   treated   publication   of   its   proceedings   as

breach   of   privilege.   However,   subsequently,   the

Members   of   British   Parliament   have   permitted   the

publication   of   its   proceedings   in   Hansard.     As   early

as,   in   the   year   1868  Cock   Burn,   CJ.   in   Wason   v.

Walter,   1869   QB   Vol.   4   at   p.   73  held   that   it   is   of

paramount   public   and   national   importance   that   the

proceedings   of   the   House   of   Parliament   shall   be

communicated to the people.  Cock Burn, CJ, at page 89
44

held the following: 

''….It   seems   to   us   impossible   to   doubt   that
it   is   of   paramount   public   and   national
importance that the proceedings of the houses
of   parliament   shall   be   communicated   to   the
public,   who   have   the   deepest   interest   in
knowing   what   passes   within   their   walls,
seeing that on what is there said and done,
the   welfare   of   the   community   depends.   Where
would be our confidence in the government of
the   country   or   in   the   legislature   by   which
our laws are framed, and to whose charge the
great interests of the country are committed,
­where   would   be   our   attachment   to   the
constitution   under   which   we   live,­if   the
proceedings of the great council of the realm
were   shrouded   in   secrecy   and   concealed   from
the   knowledge   of   the   nation?   How   could   the
communications between the representatives of
the people and their constituents, which are
so   essential   to   the   working   of   the
representative   system,   be   usefully   carried
on,   if   the   constituencies   were   kept   in
ignorance   of   what   their   representatives   are
doing?   What   would   become   of   the   right   of
petitioning   on   all   measures   pending   in
parliament,   the   undoubted   right   of   the
subject,   if   the   people   are   to   be   kept   in
ignorance of what is passing in either house?
Can any man bring himself to doubt that the
publicity   given   in   modern   times   to   what
passes   in   parliament   is   essential   to   the
maintenance   of   the   relations   subsisting
between the government, the legislature, and
the country at large?....”

52. Further, it was held 'no' subject of parliamentary

discussion   which   more   requires   to   be   made   known   than
45

an inquiry relating to it.  Cock Burn CJ. further held

that although each House by standing orders prohibits

the publication of its debate but each House not only

permits,   but   also   sanctions   and   encourages   the

publication:

“....The fact, no doubt, is, that each house
of   parliament   does,   by   its   standing   orders,
prohibit the publication of its debates. But,
practically, each house not only permits, but
also sanctions and encourages, the publication
of   its   proceedings,   and   actually   gives   every
facility to those who report them. Individual
members correct their speeches for publication
in   Hansard   or   the   public   journals,   and   in
every   debate   reports   of   former   speeches
contained therein are constantly referred to.
Collectively,   as   well   as   individually,   the
members   of   both   houses   would   deplore   as   a
national   misfortune   the   withholding   their
debates from the country at large. Practically
speaking,   therefore,   it   is   idle   to   say   that
the publication of   parliamentary proceedings
is prohibited by parliament....”

53. Under the Rule 379 of Lok Sabha, Secretary General

is   authorised   to   prepare   and   publish   the   full   report

of the proceedings of the House under the direction of

the Speaker. Parliament has also passed a legislation,

namely,   the   'Parliamentary   Proceedings   (Protection   of

Publication)   Act,   1977'   which   provides   that
46

publication of reports of parliamentary proceedings is

privileged. 

Section 3 of the Act is as follows: ­

"Section   3.   Publication   of   reports   of
parliamentary proceedings privileged:

(1) Save as otherwise provided in sub­section
(2),   no   person   shall   be   liable   to   any
proceedings,   civil   or   criminal,   in   any   court
in respect of the publication in a newspaper
of   a   substantially   true   report   of   any
proceedings   of   either   House   of   Parliament
unless the publication is proved to have been
made with malice.

(2)   Nothing   in   sub­section   (1)   shall   be
construed as protecting the publication of any
matter,   the   publication   of   which   is   not   for
the public good. ”

54. By   Constitution   (Forty   Fourth   Amendment)   Act,

1978,   Article   361A   was   inserted   in   the   Constitution

providing   for   'protection   of   publication   of

proceedings   by   Parliament   and   State   Legislatures'.

Article 361A is as follows: 

“Art.  361A   .   Protection   of   publication   of
proceedings   of   Parliament   and   State
Legislatures.­

(1)   No   person   shall   be   liable   to   any
proceedings, civil or criminal, in any court
in respect of the publication in a newspaper
of   a   substantially   true   report   of   any
47

proceedings of either House of Parliament or
the Legislative Assembly, or, as the case may
be,   either   House   of   the   Legislature   of   a
State,   unless   the   publication   is   proved   to
have been made with malice:

Provided   that   nothing   in   this   clause   shall
apply   to   the   publication   of   any   report   of
the   proceedings   of   a   secret   sitting   of
either   House   of   Parliament   or   the
Legislative   Assembly,   or,   as   the   case   may
be,   either   House   of   the   Legislature,   of   a
State.

(2)   Clause   (1)   shall   apply   in   relation   to
reports   or   matters   broadcast,   by   means   of
wireless telegraphy as part of any programme
or   service   provided   by   me   ans   of   a
broadcasting   station   as   it   applies   in
relation  to reports or  matters  published  in
a newspaper.

Explanation.­­In   this   article,   "newspaper"
includes   a   news   agency   report   containing
material for publication in a newspaper.”

55. The   rules   framed   under   Article   118   of   the

Constitution   of   India   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
48

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.

56. At this juncture, it is relevant to note that

as   per   rules   framed   under   Article   118   of   the

Constitution of India, 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.

Learned   counsel   for   both   the   petitioners   have

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
49

Reports of Parliamentary Standing Committee.

E. RULES   AND   PROCEDURES   REGARDING   PERMISSION   FOR
GIVING   EVIDENCE   IN   COURTS   REGARDING   PROCEEDINGS   IN
PARLIAMENT

57. The   papers   and     proceedings   of   Parliament   have

been   permitted   to   be   given   in   evidence   in   Courts   of

law   by   the   Parliament.   In   this   context,   reference   is

made   to   Practice   and   Procedure   of   Parliament   by  M.N.

Kaul and S.L. Shakdhar, Seventh Edition, published by

Lok Sabha Secretariat, where on this subject following

has been stated:

“Evidence in Courts Regarding Proceedings in
Parliament

Leave   of   the   House   is   necessary   for
giving evidence in a court of law in respect
of   the   proceedings   in   that   House   or
committees   thereof   or   for   production   of   any
document   connected   with   the   proceedings   of
that   House   of   Committees   thereof,   or   in   the
custody   of   the   officers   of   that   House.
According   to   the   First   Report   of   the
Committee   of   Privileges   of   the   Second   Lok
Sabha,   “no   member   or   officer   of   the   House
should   give   evidence   in   a   Court   of   law   in
respect   of   any   proceedings   of   the   House   or
any   Committees   of   the   House   or   any   other
document   connected   with   the   proceedings   of
50

the House or in the custody of the Secretary­
General without the leave of the House being
first obtained”.

When   the   House   is   not   in   session,   the
Speaker   may,   in   emergent   cases,   allow   the
production of relevant documents in courts of
law   in   order   to   prevent   delays   in   the
administration   of   justice   and   inform   the
House   accordingly   of   the   fact   when   it
reassembles or through the Bulletin. However,
in   case   the   matter   involves   any   question   of
privilege,   especially   the   privilege   of   a
witness,   or   in   case   the   production   of   the
document appears to him to be a subject for
the   discretion   of   the   House   itself,   the
Speaker   may   decline   to   grant   the   required
permission without leave of the House.

Whenever   any   document   relating   to   the
proceedings   of   the   House   or   any   committee
thereof is required to be produced in a court
of law, the Court or the parties to the legal
proceedings have to request the House stating
precisely the documents required, the purpose
for which they are required and the date by
which   they   are   required.   It   has   also   to   be
specifically stated in each case whether only
a   certified   copy   of   the   document   should   be
sent   or   an   officer   of   the   House   should
produce it before the court.”

58. 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. Kaul and Shakdher had noticed
51

the detail in the above regard in Chapter XI dealing

with   powers,   privileges   and   immunities   of   Houses,

their Committees and Members to the  following effect:

“The Committee of Privileges, Fourteenth Lok
Sabha,   felt   that   it   was   about   time   that   the
procedure   for   dealing   with   the   requests   for
documents   relating   to   proceedings   of   the   House,
its Committees etc., received from Courts of Law
and   investigating   agencies   were   given   a   fresh
look, particularly in the light of the provisions
of   the   Right   to   Information   Act,2005.   The
Committee,   with   the   permission   of   the   Speaker,
took   up   the   examination   of   the   matter.   The
Twelfth Report in the matter was presented to the
Speaker   Lok   Sabha   on   28   April   2008   and   laid   on
the   Table   of   the   House   on   30   April   2008.   The
Report   was   adopted   by   the   House   on   23   October
2008.

The Committee in their Report recommended the
following procedure:

(I)  Procedure for making requests for documents 
relating to the proceedings of the House or 
of any Committee of the House:

A. If   request   for   documents   relating   to  
proceedings   of   the   House   or   of   any  
Committee of the House is made by a Court 
or by the parties to a legal proceedings  
before a court, the court or the parties  
to   the   proceedings   as   the   case   may   be,  
shall specify the documents required, the 
purpose   for   which   they   are   required   and  
the   date   by   which  they   are   required.   It  
should also be specifically stated in each
case   whether   only   certified   copies   or  
photocopies   of   the   documents   should   be  
sent   or   an   officer   of   the   House   should  
produce it before the court.

52

*****

(II) Procedure   for   dealing   with   requests   for  
documents   relating   to   proceedings   of   the  
House or any Committee of the House.

*****

III.   Procedure   for   dealing   with   requests  
from  courts   or   investigating  
agencies for  documents other than those 
relating to the  proceedings   of   the  
House or any Committee of  the   House,  
which   are   in   the   custody   of   the  
Secretary­General.

  *****

IV. The question whether a document relates  
to the  proceedings of the House or any
Committee of  the House shall be decided 
by the Speaker and  his decision shall
be final.

V.  Documents relating to the proceedings of 
the  House or any Committee of the House 
which are  public documents should be 
taken judicial  notice of and requests
for certified copies  thereof may not be
ordinarily made unless  there   are  
sufficient   reasons   for   making   such  
requests.

VI.   Procedure   after   the   Report   of   the  
Committee  of   Privileges   has   been  
presented or laid on   the   Table   of   the  
House.”

59. Learned   counsel   for   the   respondents   in   his

compilation   has   given   Third   Edition   (2017)   of   Raj
53

Sabha   at   Work,   wherein   at   page   257   the   subject

“Production of documents before a Court” is mentioned.

From page 257 to page 259 various instances have also

been   mentioned   whereas   on   a   request   received   from

Court for production of documents, due permission was

granted   and   documents   were   made   available   to   the

Courts. At page 259 reference of the request received

from Sessions Judge, Cuddalore, for certified copy of

Attendance   Register   of   Rajya   Sabha   was   made.   The

extracts   from   relevant   file   has   been   quoted   which   is

to the following effect:

“A   request   was   received   from   the
Sessions Judge, Cuddalore, for certified
extracts   from   the   Attendance   Register
from   1   March   1963   to   15   March   1963,   in
the   Rajya   Sabha,   showing   the   presence
and   attendance   of   Shri   R.

Gopalakrishnan,   member   of   the   Rajya
Sabha.   As   the   House   was   not   in   session
when the  said request was received, the
Chairman   granted   permission   to   send   the
relevant   extracts   from   the   Attendance
Register   duly   certified   to   the   Sessions
Judge.   The   extracts   were   sent   on   30
January   1964,   and   the   Deputy   Chairman
informed the House accordingly.

As   regards   the   production   of
printed/published   debates   of   the   House
or reference to them in a court, a view
was held that no leave of the House was
54

required   for   the   purpose.   Under   Section
78   of   the   Evidence   Act,   1872,   the
proceedings   of   Legislatures   could   be
proved   by   copies   thereof,   printed   by
order of the Government. The question of
obtaining   the   leave   of   the   House   would
arise   only   if   a   court   required   the
assistance   of   any   of   the   members   or
officers   in   connection   with   the
proceedings   of   the   House   or   production
of   documents   in   the   custody   of   the
Secretary­General of the House.”

60. From   the   above   discussion   it   is   clear   that   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.

F. THE   APPLICABILITY   OF   THE   INDIAN   EVIDENCE   ACT,
1872, IN THE CONTEXT OF PARLIAMENTARY PROCEEDINGS. 

61. Learned   counsel   for   the   petitioner   has   placed

reliance on Section 57 of the Evidence Act. Section 57

provides for “Facts of which Court must take judicial

notice”. Section 57 sub­section (4) is relevant which

is quoted as below:

“Section   57.   Facts   of   which   Court   must
take judicial notice. –– The Court shall
55

take   judicial   notice   of   the   following
facts: ––  
(1)   All   laws   in   force   in   the   territory
of India;

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

                     xxx         xxx         xxx         xxx

(13) xxx xxx xxx xxx

In all these cases, and also on all

matters   of   public   history,   literature,
science or art, the Court may resort for
its   aid   to   appropriate   books   or
documents of reference.

 

If   the   Court   is   called   upon   by   any
person   to   take   judicial   notice   of   any
fact, it may refuse to do so unless and
until such person produces any such book
or document as it may consider necessary
to enable it to do so.”

62. A   plain   reading   of   Section   57   sub­section   (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.

56

63. Shri   Shyam   Divan   in   reference   to   Section   57

submits   that   Parliamentary   Standing   Committee   Reports

are not covered by expression “course of proceeding of

Parliament”,   hence   no   benefit   can   be   taken   by   the

petitioner   of   this   provision.   The   expression   “course

of proceeding of Parliament” is an expression of  vide

import. The Parliamentary Committee is defined in Rule

2 of Rules of Lok Sabha in following manner:

"Parliamentary   Committee   means   a
Committee   which   is   appointed   or   elected
by the House or nominated by the Speaker
and   which   works   under   the   direction   of
the   Speaker   and   presents   its   report   to
the   House   or   to   the   Speaker   and   the
Secretariat for which is provided by the
Lok Sabha Secretariat.”

64. Article 118 sub­clause (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”. Thus, we do not

find   any   substance   in   the   above   submission   of   Shri

Shyam Divan. 

57

65. Now   submission   of   learned   Attorney   General   in

reference to Section 57(4) needs to be considered.

66. The   President   exercises   power   under   Article   372

sub­clause   (2)   by   way   of   repeal   or   amendment   of   any

law in force in the territory of India. The Adaptation

Order   issued   by   the   President   thus   constitutionally

has same effect as the repeal or amendment of any law

in   force   in   the   territory   of   India.   Under   sub­clause

(3)(b)   of   Article   372   the   competent     Legislature   has

also power of repealing or amending any law adapted or

modified   by   the   President   under   sub­clause   (2)   of

Article 372.

67. The Adaptation Order issued by the President under

sub­clause   (2)   of   Article   372   thus   has   force   of   law

and   competent   Legislature   having   not   made   any

amendment in the Adaptation Order of 1950, even after

77   years   of   the   enforcement   of   the   Constitution

indicates   that   law   as   adapted   by   Presidential   Order,

1950 is continued in full force. The effect of Section
58

57(4)   in   no   manner   is   diminished   by   the   fact   that

amendments   were   made   in   Section   57(4)   by   the

Presidential Adaptation Order.

68. One more provision of Evidence Act which needs to

be   noted   is   Section   74   which   deals   with   the   public

documents.   Section   74   of   the   Evidence   Act   is   as

follows:

“74.   Public   documents.—The   following
documents are public documents :—
(1) Documents forming the acts, or 
records of the acts—

(i) of the sovereign authority,

(ii) of official bodies and 
tribunals, and

(iii) of public officers, 
legislative, judicial and 
executive,of any part of India or 
of the Commonwealth, or of a 
foreign country; of any part of 
India or of the Commonwealth, or 
of a foreign country;

(2) Public records kept in any State of 
private documents.”

69. According   to   Section   74   documents   forming   the

acts,   or   records   of   the   acts   of   Legislature   of   any

part   of   India   is   a   public   document.   We   have   noticed

above   that   Parliament   has   already   adopted   report   of
59

privilege committee that for those documents which are

public documents within the meaning of Indian Evidence

Act,   there   is   no   requirement   of   any   permission   of

Speaker   of   Lok   Sabha   for   producing   such   documents   as

evidence in Court. We may, however, hasten to add that

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.

70. In this context, reference is made to a judgment

of   the   Privy   Council   reported   in  Right   Honourable

Gerald Lord Strickland vs. Carmelo Mifsud Bonnici,AIR

1935 PC 34.  In the above case reports of the debates

in the Legislative Assembly containing speeches of the

appellant and the publication were produced. The Privy

Council   in   the   above   reference   has   expressed   opinion

that debates  can only be evidence of what was stated

by   the   speakers   in   the   Legislative   Assembly,   and   are

not evidence of “any facts contained in the speeches”.
60

71. A   judgment   of   Bombay   High   Court   dealing   with

Section 74 of the Evidence Act in reference to Article

105   of   the   Constitution   of   India   and   the   Rules   of

Procedure   and   Conduct   of   Business   in   Lok   Sabha   has

been   cited,   namely,  Standard   Chartered   Bank   vs.

A.B.F.S.L     ORS.,   2001   (4)   BOM.LR   520.  In   the   above

case,   a   report   of   Joint   Parliamentary   Committee   was

objected   by   the   learned   counsel   for   the   Standard

Chartered Bank. In paragraph 1 of the judgment, issue

which   has   arisen   in   the   case   was   noticed   to   the

following effect:

“1.Two   points   arise   for
determination.   Firstly,   whether   the
Report   of   Joint   Parliamentary   Committee
is   a   public   document   as   defined   under
Section 74 of   the   Indian   Evidence   Act,
1872.   Secondly,   even   if   it   is   a   public
document,   whether   the   findings   of   the
Joint Parliamentary Committee constitute
evidence   as   defined   under   Section 3 of
the Indian Evidence Act.”

72. It was contended before the Bombay High Court that

Joint   Parliamentary   Committee   report   is   a   public

document   as   defined   in   Section   74(1)   of   the   Evidence

Act.   In   paragraph   2   of   the   judgment   arguments   have
61

been   noticed.   The   argument   was   opposed   by   the   other

side.   The   Bombay   High   Court   came   to   the   conclusion

that report of JPC is a public document under Section

74  of the Evidence Act  and the  report was admissible

as   evidence.  Justice   S.   H.   Kapadia   (as   he   then   was)

held that  the  correctness of the findings  in the JPC

will   ultimately   depend   on   the   entire   view   of   the

matter.  Following   was   observed   in   paragraph   5   of   the

judgment:

“5....The Report of JPC has recorded
that   there   was   an   arrangement   between
the   brokers   and   the Banks,
including Standard   Chartered Bank,   under
which the Banks were assured of a return
of 15%. It was something like a minimum
guaranteed return offered by the brokers
to   the Banks.   As   stated   above,   the
Report   has   given   findings   on   certain
banking   and   market   practices   which   led
to   the   financial   irregularities   in
security   transactions.   In   that   context,
the   JPC   examined   various   Officers   of
the Banks and   the   brokers.   After
recording   their   evidence,   as   stated
above,   JPC   came   to   the   conclusion   that
there were certain practices followed by
the Banks and   the   brokers   like   Routing
facilities,   margin   trading   and   15%
arrangement.   To   this   extent,   the
findings of JPC can be read as evidence
in   the   present   matter.   However,   the
question   as   to   whether   the   suit
transaction   was   a   part   of   15%
62

arrangement, has  not been found by JPC.
There   is   no   finding   to   the   effect   that
the suit transaction was part of such an
arrangement. Therefore, I am of the view
that Can Bank Mutual Fund is entitled to
tender   the   Report   of   JPC   as   evidence
only   to   establish   that   there   was   a   15%
arrangement   between  Standard   Chartered
Bank  and   HPD.   The   issue   as   to   whether
the suit transaction was a part of such
a   practice/arrangement   will   have   to   be
established   independently   by   Can   Bank
Mutual  Fund.  However, in  order  to prove
that   issue,   the   Report   will   be   one   of
the   important   pieces   of   evidence.   At
this   stage,   I   am   concerned   with
admissibility.   The   correctness   of   the
findings   will   ultimately   depend   on   the
entire  view of  the matter.  The question
as to what weight the Court should give
to   the   findings   of   JPC   will   ultimately
depend   on   the   totality   of   circumstances
brought before the Court.”

73. In paragraph 6 ultimately the Court held :

“6.Accordingly,   I   hold   that   the
Report of JPC is a public document under
Section  74(1)(iii)  of the Evidence Act.

Secondly,   that   the   said   Report   is
admissible as evidence of the existence
of   15%   arrangement   between  Standard
Chartered Bank  and HPD. That subject to
above, Can Bank Mutual Fund will have to
prove whether the suit transaction took
place   under   such   an   arrangement   as   any
other   Fact.   At   the   request   of   Mr.
Cooper, it is clarified that this ruling
is   subject   to   my   earlier   ruling   dated
27th   June,   2001   on   the   argument   of
Standard   Chartered   Bank  on
63

inadmissibility   of   documents   under
Sections  91  and  92   of  the  Evidence  Act
and   also   in   view   of   the   provisions   of
the Benami Transactions Abolition Act.”

G. NATURE   AND   EXTENT   OF   PARLIAMENTARY   PRIVILEGES
REGARDING REPORTS OF COMMITTEES OF BRITISH PARLIAMENT

74. In   the   Constituent   Assembly   Debates   on   draft

Article   85   (now   Article   105   of   the   Constitution   of

India)  and draft Article  169 (now Article 194 of the

Constitution   of   India),   various   members   have   brought

amendments and prayed that privileges of the House of

the   Parliament   be   enumerated   and   the   Constitution

should   not   refer   to   House   of   Commons   of   the   United

Kingdom   for   referring   to   its   privileges.     Dr.   B.R.

Ambedkar   in   his   reply   in   the   Constituent   Assembly

Debates on 03.06.1949 stated as follows:­

“It   seems   to   me,   if   the   proposition   was
accepted   that   the   Act   itself   should
enumerate   the   privileges   of   Parliament,   we
would have  to follow  three  courses.  One  is
to adopt them in the Constitution, namely to
set   out   in   detail   the   privileges   and
immunities of Parliament and its members. I
have   very   carefully   gone   over   May's
Parliamentary   Practice   which   is   the   source
book   of   knowledge   with   regard   to   the
immunities   and   privileges   of   Parliament.   I
have   gone   over   the   index   to   May's
64

Parliamentary   Practice   and   I   have   noticed
that practically 8 or 9 columns of the index
are devoted to the privileges and immunities
of Parliament. So that if you were to enact
a   complete   code   of   the   privileges   and
immunities of Parliament based upon what May
has to say on this subject, I have not the
least doubt in my mind that we will have to
add   not   less   than   twenty   or   twenty­five
pages relating to immunities and privileges
of   Parliament.   I   do   not   know   whether   the
Members   of   this   House   would   like   to   have
such   a   large   categorical   statement   of
privileges   and   immunities   of   Parliament
extending over twenty or twenty­five pages.
That   I   think   is   one   reason   why   we   did   not
adopt that course.”    

75. The draft article was finally approved maintaining

the   reference   to   House   of   Commons   in   regard   to   other

privileges.  Thus, the privileges which our Parliament

and State Legislatures enjoy are privileges enjoyed by

House of Commons of the United Kingdom at the time of

commencement of the Constitution.

76. In early period of history of British Parliament,

at   the   commencement   of   every   Parliament,   it   has   been

the custom, the Speaker sought by humble petition the

rights and privileges.   The petitions were granted by

Her   Majesty’s   by   conferring   upon   the   power,   the
65

privileges asked for.  In subsequent period, the Common

started insisting that the privileges are inherent in

the House.  The first major recognition and acceptance

of Parliamentary privileges found reflected in the Bill

of Rights, 1688.   The Bill of Rights, 1688 was an Act

declaring the rights and liberties of the subject and

settling the succession of the Crown. Article IX of the

Bill of Rights provides as follows:–

“Freedom   of   Speech   ­   That   the   freedom   of
speech   and   debates   or   proceedings   in
Parliament   ought   not   to   be   impeached   or
questioned   in   any   court   or   place   out   of
Parliament:”

77. The   above   declaration   made   in   Bill   of   Rights

thereafter   has   been   firmly   established   and   till   date

enjoyed by the House of Commons of the United Kingdom.

Erskine   May  in   'Parliamentary   Practice,   24th  Edition'

while dealing with privileges of freedom of speech says

following with regard to the Bill of Rights:­

“Article   IX   of   the   Bill   of   Rights   1689
confers   on   ‘proceedings   in   Parliament’
protection   from   being   ‘impeached   or
questioned’ in any ‘court or place out of
Parliament’.   Except   in   the   limited
circumstances   mentioned   below,   none   of
these critical terms is defined, so that
66

it   has   often   fallen   to   the   courts   to
arrive at judgments about their meaning,
against   the   background   of   parliamentary
insistence on the privilege of exclusive
cognizance of proceedings (see above) and
concern   that   judicial   interpretation
should   not   narrow   the   protection   of
freedom   of   speech   which   article   IX
affords.” 

78. 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 Sub­clause (3) of
67

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. In this Context, references

to   few   English   cases   are   relevant.     The   case   of

Stockdale   Vs.   Hansard,   9   A.D.     E.2   Page   1112  is

referred.     The   case   was   an   action   for   a   publication

defaming the plaintiff’s character by imputing that he

had published an obscene libel. Following was stated by

Lord Denmen, C.J. 

“Thus the privilege of having their debates
unquestioned,   though   denied   when   the
members   began   to   speak   their   minds   freely
in   the   time   of   Queen   Elizabeth,   and
punished   in   its   exercise   both   by   that
princess   and   her   two   successors,   was   soon
clearly   perceived   to   be   indispensable   and
universally   acknowledged.   By   consequence,
whatever is done within the walls of either
assembly must pass without question in any
other   place.   For   speeches   made   in
parliament by a member to the prejudice of
any   other   person,   or   hazardous   to   the
public   peace,   that   member   enjoys   complete
impunity.....” 

79. Another   judgment   which   needs   to   be   noted   is

Bradlaugh   V.   Gossett   (1884)   12   Q.B.D.   271.    The

plaintiff   Bradlaugh   was   a   duly elected burgess to
68

serve in the House of Commons.  The House resolved that

the   Serjeant­at­arms   shall   exclude   Mr.   Bradlaugh   from

the House until he shall engage not further to disturb

the   proceedings   of   the   House.  Lord   Coleridge,   C.J.

stated as follows:­    

“.....What is said or done within the walls
of Parliament cannot be inquired into in a
court of law. On this point all the judges
in   the   two   great   cases   which   exhaust   the
learning   on   the   subject,   —   Burdett   v.

Abbott   14   East   ,   1,   148   and   Stockdale   v.

Hansard 9 Ad  E 1 ; — are agreed, and are
emphatic.   The   jurisdiction   of   the   Houses
over   their   own   members,   their   right   to
impose   discipline   within   their   walls,   is
absolute and exclusive. To use the words of
Lord   Ellenborough,   “They   would   sink   into
utter   contempt   and   inefficiency   without
it.”

80. Another   case   in   which   question   of   Parliamentary

privilege   with   respect   to   Parliamentary   report   of   a

select committee of House of Commons was involved was

the case of Dingle Vs Associated Newspapers Ltd.  Ors.

(1960) 2 Q.B. 405.   The plaintiff sued for damages for

libels   appearing   in   the   issues   of   the   Daily   Mail

Newspaper.   The plaintiff alleged that the defendants

falsely   and   maliciously   printed   and   published   an
69

article   concerning   the   circumstances   in   which   the

shares   in   Ardwick   Cemetery   Ltd.   were   acquired   by   the

Manchester   Corporation.     A   Committee   of   the   House   of

Commons   has   also   submitted   a   report   that   the

Corporation   obtained   the   shares   by   presenting   a   one­

sided view, which failed to disclose the true position

of the company on a break­up.

81. Pearson, J.  Referring to Bill of Rights, 1688 and

the case of Bradlaugh V. Gossett said following:­

“....Reference   was   made   to   the   Bill   of
Rights,   1688,   s.   1,  
art.9,   on   freedom   of
speech,   which   provides:   “That   the   freedom
of   speech   and   debates   or   proceedings   in
Parliament   ought   not   to   be   impeached   or
questioned   in   any   court   or   place   out   of
parliament.”

Reference   was   also   made   to   Bardlaugh   v.

Gossett,   and   it   is   sufficient   to   read   a
short   portion   of   the   headnote:   “The   House
of Commons is not subject to the control of
Her Majesty’s Courts in its administration
of that part of the statute law which has
relation   to   its   internal   procedure   only.

What   is   said   or   done   within   its   walls
cannot be inquired into in a court of law.

A resolution of the House of Commons cannot
change the law of the land.  But a court of
law   has   no   right   to   inquire   into   the
propriety   of   a   resolution   of   the   House
restraining a member from doing within the
70

walls   of   the   House   itself   something   which
by   the   general   law   of   the   land   he   had   a
right to do.”  There is a clear affirmation
of   the   exclusive   right   of   Parliament   to
regulate its own internal proceedings.

That was one of the points put forward and,
in   my   view,   it   is   quite   clear   that   to
impugn   the   validity   of   the   report   of   a
select   committee   of   the   House   of   Commons,
especially   one   which   has   been   accepted   as
such   by   the   House   of   Commons   by   being
printed   in   the   House   of   Commons   Journal,
would be contrary to section 1 of the Bill
of   Rights.    No  such  attempts   can  properly
be made outside Parliament.....”

82. Another judgment which also related to proceeding

in   Parliament   is  Church   of   Scientology   of   California

Vs. Johnson­Smith (1972) 1 Q.B. 522.  Referring earlier

judgment   in  Dingle   Vs.   Associated   Newspapers,  Browne,

J. said following:­

“The   most   recent   case   to   which   I   was
referred   was   Dingle   Vs.   Associated
Newspapers   Ltd.   (1960)   2   Q.B.   405.     The
plaintiff’s   claim   in   that   case   was   in
respect of an article which had appeared in
a newspaper which he said was defamatory of
him.     It   was   held   in   that   case   that   the
court   could   not   inquire   into   the   validity
of   a   select   committee   of   the   House   of
Commons on which the article complained of
had   apparently   been   partly   based.     The
invalidity suggested in that case seems to
have been a suggestion that there was some
sort   of   procedural   defect   in   the
71

proceedings   of   the   committee,   which   of
course   is   quite   a   different   set   of   facts
from the present case.  But it seems to me
that it really involved the same principle
as   is   involved   in   this   case.     As   I
understand   it   the   plaintiff   there   was
trying   to   question   proceedings   in
Parliament   in   order   to   support   in   certain
respects   his   case   based   on   a   libel
published   outside   Parliament   and   was   held
not entitled to do that.   By analogy with
this   case   it   seems   to   me   that   the
plaintiff’s   here   are   trying   to   use   what
happened in Parliament in order to support
a   part   of   their   case   in   respect   of   this
libel   published   outside   Parliament   in   the
television broadcast.

I   am   quite   satisfied   that   in   these
proceedings it is not open to either party
to   go   directly,   or   indirectly,   into   any
question   of   the   motives   or   intentions   of
the   defendant   or   Mr.   Hordern   or   the   then
Minister  of  Health   or  any  other  Member   of
Parliament in anything they said or did in
the House.....”     

83. What was held in the above cases clearly establish

that 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.

84. After   having   noticed   the   nature   and   extent   of
72

Article 9 of the Bill of Rights (1688), we now proceed

to   consider   the   question,   as   to   whether,   use   of

parliamentary   materials   including   Standing   Committee

Report in courts, violates the parliamentary privilege

as   enshrined   in   the   Article   9   of   Bill   of   Rights

(1688).   The   most   important   judgment   to   be   noticed   in

the above regard is the judgment of House of Lords in

Pepper   (Inspector   of   Taxes)   v.   Hart   and   related

appeals, 1993(1) All ER 42.   A Seven Member Committee

of   House   of   Lords   heard   the   case   looking   to   the

importance of the issue raised.  The opinion expressed

by   the  Lord   Browne­Wilkinson  was   concurred   by   all

except one. The two questions which arose in the case,

were   noticed   in   following   words   by   Lord   Browne

Wilkinson:

“....However,   in   the   circumstances
which   I   will   relate,   the   appeals
have   also   raised   two   questions   of
much wider importance. The first is
whether   in   construing   ambiguous   or
obscure   statutory   provisions   your
Lordships should relax the historic
rule that the courts must not look
at   the   parliamentary   history   of
legislation   or   Hansard   for   the
purpose   of   construing   such
legislation.     The   second   is
73

whether,   if   reference   to   such
materials   would   otherwise   be
appropriate,   it   would   contravene
SI,   art   9   of   the   Bill   of   Rights
(1688)   or   parliamentary   privilege

795.”

85. Lord   Wilkinson   also  considered   Article  9  of  Bill

of Rights (1688), in the context that whether such use

of   parliamentary   materials   will   contravene   the

parliamentary   privilege.   The   argument   of   learned

Attorney   General   that   the   use   of   parliamentary

material by the courts shall amount to questioning of

the freedom of speech or debate, was repelled holding

that the court would be giving effect to what was said

and   done   there.     Considering   the   aforesaid   following

was stated by the House of Lords: 

Article   9   is   a   provision   of   the
highest   constitutional   importance
and   should   not   be   narrowly
construed.   It   ensures   the   ability
of   democratically   elected   members
of   Parliament   to   discuss   what   they
will (freedom of debate) and to say
what they will (freedom of speech).

But, even given a generous approach
to   this   construction,   I   find   it
impossible to attach the breadth of
meaning   to   the   word   'question;

which   the   Attorney   General   urges.

It   must   be   remembered   that   art   9
prohibits   questioning   not   only   'in
74

any   court'   but   also   in   any   'place
out of Parliament'. If the Attorney
General's   submission   is   correct,
any   comment   in   the   media   or
elsewhere   on   what   is   said   in
Parliament   would   constitute
'questioning'   since   all   members   of
Parliament   must   speak   and   act
taking   into   account   what   political
commentators   and   others   will   say.

Plainly art 9 cannot have effect so
as to stifle the freedom of all to
comment   on   what   is   said   in
Parliament,   even   though   such
comment   may   influence   members   in
what they say. 

In   my   judgment,   the   plain
meaning   of   art   9,   viewed   against
the   historical   background   in   which
it was enacted, was to ensure that
members   of   Parliament   were   not
subjected   to   any   penalty,   civil   or
criminal,   for   what   they   said   and
were able, contrary to the previous
assertions   of   the   Stuart   monarchy,
to discuss what they, as opposed to
the   monarch,   chose   to   have
discussed.   Relaxation   of   the   rule
will   not   involve   the   courts   in
criticising   what   is   said   in
Parliament.   The   purpose   of   looking
at Hansard will not be to construe
the words used by the minister but
to give effect to the words used so
long   as   they   are   clear.   Far   from
questioning   the   independence   of
Parliament   and   its   debates,   the
courts   would   be   giving   effect   to
what is said and done there.”
75

86. The House of Lords also observed that Hansard has

frequently   been   used   in   cases   of   judicial   review   and

following was stated in this context: 

"Moreover,   the   Attorney   General's
contentions   are   inconsistent   with
the   practice   which   has   now
continued over a number of years in
cases   of   judicial   review.   In   such
cases, Hansard has frequently been
referred   to   with   a   view   to
ascertaining   whether   a   statutory
power has been improperly exercised
for an alien purpose or in a wholly
unreasonable   manner.   In   Brind   v
Secretary   of   State   for   the   Home
Dept [1991] 1 All ER 720, [1991] 1
AC   696   it   was   the   Crown   which
invited   the   court   to   look   at
Hansard   to   show   that   the   minister
in   that   case   had   acted   correctly
(see [1991] 1 AC 696 at 741). This
House   attached   importance   to   what
the minister had said (see [1991] 1
All ER 720 at 724, 729­730, [1991]
1   AC   696   at   749,   755­756).     The
Attorney   General   accepted   that
references   to   Hansard   for   the
purposes   of   judicial   review
litigation did not infringe art 9.

Yet   reference   for   the   purposes   of
judicial   review   and   for   the
purposes   of   construction   are
indistinguishable.  In both type of
cases,   the   minister's   words   are
considered   and   taken   into   account
by the court; in both, the use of
such   words   by   the   courts   might
affect what is said in Parliament.”
76

87. In the end  Lord Wilkinson  held that reference to

parliamentary   materials   for   purpose   of   construing

legislation does  not breach Article 9 of the  Bill of

Rights (1688). Following was held:

"....For   the   reasons   I   have   given,
as a matter of pure law this House
should   look   at   Hansard   and   give
effect   to   the   parliamentary
intention   it   discloses   in   deciding
the   appeal.   The   problem   is   the
indication   given   by   the   Attorney
General   that,   if   this   House   does
so,   your   Lordships   may   be
infringing   the   privileges   of   the
House of Commons.

For   the   reasons   I   have   given,
in   my   judgment   reference   to
parliamentary   materials   for   the
purpose   of   construing   legislation
does   not   breach  S   1,   art   9  of   the
Bill of Rights....”

88. Again the House of Lords in Prebble v. Television

New   Zealand   Ltd   Privy   Council,   (1994)   3   All   ER   407

observed that there can no longer be any objection to

the   production   of   Hansard.   Following   was   held   by   the

Lord Wilkinson: 

"Since   there   can   no   longer   be   any
objection   to   the   production   of
77

Hansard,   the   Attorney   General
accepted (in their Lordships' view
rightly)   that   there   could   be   no
objection to the use of Hansard to
prove   what   was   done   and   said   in
Parliament as a matter of history.

Similarly,   he   accepted   that   the
fact that a statute had been passed
is admissible in court proceedings.

Thus, in the present action, there
cannot be any objection to it being
proved   what   the   plaintiff   or   the
Prime   Minister   said   in   the   House
(particulars 8.2.10 and 8.2.14) or
that   the   State­owned   Enterprises
Act   1986   was   passed   (particulars
8.4.1).   It   will   be   for   the   trial
judge   to   ensure   that   the   proof   of
these historical facts is not used
to   suggest   that   the   words   were
improperly   spoken   or   the   statute
passed   to   achieve   an   improper
purpose. 

It is clear that, on the pleadings
as   they   presently   stand,   the
defendants intent to rely on these
matters   not   purely   as   a   matter   of
history but as part of the alleged
conspiracy   or   its   implementation.

Therefore,   in   their   Lordships'
view, Smellie J was right to strike
them out.  But their Lordships wish
to   make   it   clear   that   if   the
defendants   wish   at   the   trial   to
allege the occurrence of events or
the   saying   of   certain   words   in
Parliament without any accompanying
allegation   of   impropriety   or   any
other   questioning   there   is   no
objection to  that course.”
78

89. R.   v.   Murphy,   (1986)   5   NSWLR   18  is   another

judgment   where   Article   9   of   Bill   of   Rights   was

considered   in   the   context   of   parliamentary

proceedings.   The   tender   of   Hansard   in   curial

proceedings   is   not   a   breach   of   parliamentary

privilege. Hunt J., stated the following: 

“None   of   the   cases   to   which
reference has been made has caused
me   to   alter   the   interpretation   of
the Bill of Rights, art 9, which I
have proposed. I remain of the view
that   what   is   meant   by   the
declaration   that   “freedom   of
speech...   in   parliament   ought   not
to   be   impeached   or   questioned   in
any   court   or   place   out   of
parliament”   is   that   no   court
proceedings   (or   proceedings   of   a
similar   nature)   having   legal
consequences   against   a   member   of
parliament   (or   a   witness   before   a
parliamentary   committee)   are
permitted   which   by   those   legal
consequences   have   the   effect   of
preventing   that   member   (or
committee   witness)   exercising   his
freedom of speech in parliament (or
before a committee) or of punishing
him for having done so.”

90. The   next   judgment   which   needs   to   be   noted   is

judgment   of   the   House   of   Lords   in  Wilson   Vs.   First
79

Country Trust Ltd. (2003) UKHL 40.   The House of Lords

in the above case has held that decision in Pepper Vs.

Hart   (supra)  removed   from   the   law   an   irrational

exception.       Before   the   decision   in  Pepper   Vs.   Hart

(supra)  a   self­imposed   judicial   rule   excluded   use   of

parliamentary materials as an external aid. It was held

that   the   Court   may   properly   use   the   ministerial   and

other statements made in Parliament without in any way

questioning   what   has   been   said   in   Parliament.

Following was laid down in Para 60:­

“....What is important is to recognise there
are   occasions   when   courts   may   properly   have
regard   to   ministerial   and   other   statements
made   in   Parliament   without   in   any   way
'questioning'   what   has   been   said   in
Parliament,   without   giving   rise   to
difficulties   inherent   in   treating   such
statements   as   indicative   of   the   will   of
Parliament,   and   without   in   any   other   way
encroaching   upon   parliamentary   privilege   by
interfering   in   matters   properly   for
consideration   and   regulation   by   Parliament
alone. The use by courts of ministerial and
other   promoters'   statements   as   part   of   the
background   of   legislation,   pursuant
to Pepper v   Hart case,   is   one   instance.

Another instance is the established practice
by   which   courts,   when   adjudicating   upon   an
application   for   judicial   review   of   a
ministerial   decision,   may   have   regard   to   a
ministerial statement made in Parliament. The
decision of your Lordships' House in Brind v
80

Secretary of State for the Home Dept [1991] 1
All ER 720, [1991] 1 AC 696 is an example of
this.....”
 

91. The case of  Touissant Vs. Attorney General of St.

Vincent,   (2007)   UKPC   48  is   another   judgment   of   the

House of Lords where Article IX of Bill of Rights and

Parliamentary privileges in context of use in Court of

statement   made   by   Prime   Minister   during   Parliamentary

debate   came   for   consideration.     It   was   held   that

Article IX of Bill of Rights precludes the impeaching

or   questioning   in   Court   or   out   of   Parliament   of   the

freedom   of   speech   and   debates   or   proceedings   in

Parliament.  It was held that giving a literal meaning

will   lead   to   absurd   consequences.     In   Para   10,

following was stated by House of Lords:­ 

“Against this background, the Board turns to
article 9 of the Bill of Rights and the wider
common   law   principle   identified   in   Prebble
case.  
Article   9   precludes   the   impeaching   or
questioning in court or out of Parliament of
the   freedom   of   speech   and   debates   or
proceedings   in   Parliament.   The   Board   is
concerned with the proposed use in court of a
statement made during a parliamentary debate.
But it notes in passing that the general and
somewhat obscure wording of 
article 9 cannot
on any view be read absolutely literally. The
prohibition   on   questioning   "out   of
81

Parliament"   would   otherwise   have   "absurd
consequences", e.g. in preventing the public
and   media   from   discussing   and   criticising
proceedings in parliament, as pointed out by
the   Joint   Committee   on   Parliamentary
Privilege,   paragraph   91   (United   Kingdom,
Session 1998­1999, HL Paper 43­I, HC 214­I).
On   the   other   hand,  
article   9   does   not
necessarily represent the full extent of the
parliamentary privilege recognised at common
law. As Lord Browne­Wilkinson said in Prebble
case at p. 332, there is in addition:

"a   long   line   of   authority   which
supports   a   wider   principle,   of   which
article 9 is merely one manifestation,
viz.   that   the   courts   and   Parliament
are   both   astute   to   recognise   their
respective   constitutional   roles.   So
far   as   the   courts   are   concerned   they
will   not   allow   any   challenge   to   be
made   to   what   is   said   or   done   within
the walls of Parliament in performance
of   its   legislative   functions   and
protection   of   its   established
privileges."

92. The House of Lords also referred to report of the

Joint   Committee,   which   welcome   the   use   of   the

ministerial statement in Court. Para 17 of the judgment

is to the following effect:­

“In such cases, the minister's statement
is   relied   upon   to   explain   the   conduct
occurring   outside   Parliament,   and   the
policy   and   motivation   leading   to   it.

This is unobjectionable although the aim
and effect is to show that such conduct
82

involved   the   improper   exercise   of   a
power   "for   an   alien   purpose   or   in   a
wholly   unreasonable   manner":   Pepper   v.

Hart,   per   Lord   Browne­Wilkinson   at   p.

639A.   The   Joint  Committee   expressed  the
view that Parliament should welcome this
development,   on   the   basis   that   "Both
parliamentary   scrutiny   and   judicial
review   have   important   roles,   separate
and   distinct   in   a   modern   democratic
society" (para 50) and on the basis that
"The   contrary   view   would   have   bizarre
consequences",   hampering   challenges   to
the "legality of executive decisions . .

. . by ring­fencing what ministers said
in   Parliament",   and   "making   ministerial
decisions   announced   in   Parliament   less
readily   open   to   examination   than   other
ministerial   decisions"(para   51).   The
Joint   Committee   observed,   pertinently,
that

"That   would   be   an   ironic
consequence   of  
article   9.

Intended to protect the integrity
of   the   legislature   from   the
executive and the courts, 
article
9   would   become   a   source   of
protection   of   the   executive   from
the courts."

93. Office   of   Government   of   Commerce   Vs.   Information

Commissioner,   (2010)   QB   98,   was   a   case   where   Stanley

Burnton,   J.   held   that   receiving   evidence   of   the

proceedings   of   Parliament   are   relevant   for   historical

facts or events and does not amount to “questioning”.
83

In Para 49, following was stated:­ 

“49.   However,   it   is   also   important   to
recognise   the   limitations   of   these
principles.   There   is   no   reason   why   the
Courts   should   not   receive   evidence   of
the  proceedings  of   Parliament   when   they
are  simply   relevant  historical   facts   or
events:  no   "questioning"   arises  in   such
a case: see [35] above. Similarly, it is
of the essence of the judicial function
that   the   Courts  should   determine   issues
of   law   arising   from   legislation   and
delegated   legislation.   Thus,   there   can
be   no   suggestion   of   a   breach   of
Parliamentary   privilege   if   the   Courts
decide   that   legislation   is   incompatible
with   the   European   Convention   on   Human
Rights: by enacting the Human Rights Act
1998,   Parliament   has   expressly
authorised   the   Court   to   determine
questions   of   compatibility,   even   though
a   Minister   may   have   made   a   declaration
under   section   19   of   his   view   that   the
measure   in   question   is   compatible.   The
Courts   may   consider   whether   delegated
legislation   is   in   accordance   with
statutory   authority,   or   whether   it   is
otherwise   unlawful,   irrespective   of   the
views   to   that   effect   expressed   by
Ministers   or   others   in   Parliament:   R
(Javed)   v   Secretary   of   State   for   the
Home   Department   [2001]   EWCA   Civ   789,
[2002] QB 129 at [33]:

Legislation   is   the   function   of
Parliament,   and   an   Act   of
Parliament   is   immune   from
scrutiny   by   the   courts,   unless
challenged   on   the   ground   of
conflict   with   European   law.

Subordinate  legislation  derives
84

its   legality   from   the   primary
legislation   under   which   it   is
made.   Primary   legislation   that
requires   subordinate
legislation   to   be   approved   by
each   House   of   Parliament   does
not   thereby   transfer   from   the
courts   to   the   two   Houses   of
Parliament,   the   role   of
determining the legality of the
subordinate legislation.

94. Another judgment delivered by Stanley Burnton, J.

in Federation of Tour Operators Vs. HM Treasury, (2007)

EWHC   2062   (Admin)  was   a   case   where   objection   to

receiving evidence report of Treasury Select Committee

was   raised.     In   Para   5   of   the   judgment,   objection

raised   on   behalf   of   the   Speaker   of   the   House   was

noticed.  Para 5 is to the following effect:­

“The   Speaker   of   the   House   of   Commons
intervened   because   of   the   Claimants’
reliance   in   these   proceedings   on
evidence   given   to   Committees   of   the
House   and   on   a   report   of   the   Treasury
Select   Committee.     It   was   submitted   on
his behalf that their reliance on these
matters  in   these   proceedings   involved   a
breach   of  
Art.9   of   the   Bill   of   Rights
and the wider principle of Parliamentary
privilege.”

95. The   issue   as   to   the   admissibility   of   the
85

Parliamentary   material   was   considered   in   detail   while

referring to judgment of House of Lords in Touissant’s

(supra).   It   was   held   that   there   is   no   basis   for

distinguishing   between   statement   of   minister   in   the

House   and   statement   made   to   a   Select   Committee.

Following   was   held   in   Para   117,   124   and   125   of   the

judgment:­

“117.   In   my   judgment,   the   first   two   of
these   propositions   are   too   widely
stated.   I   see   no   basis   for
distinguishing   between   what   a   Minister
says   in   the   House   of   Commons   (or   the
House of Lords), which may be considered
by the Court in a case such as Toussaint
,   and   what   he   or   she   says   to   a   Select
Committee.   Whether   what   is   said   by   an
official   should  be   received  in   evidence
must   depend   on   the   circumstances:   what
he   says,   his   authority,   and   the   reason
for which it is sought to rely on it. In
general,   the   opinion   of  a   Parliamentary
Committee   will   be   irrelevant   to   the
issues   before   the   Court   (as   in   R
(Bradley) v Secretary of State for Work
and   Pensions   [2007]   EWHC   242   (Admin)
and, as will be seen, the present case),
and   accordingly   I   do   not   think   it
sensible   to   seek   to   consider   the
admissibility of such a report in a case
in which its contents are relevant.

124. The efficacy or otherwise of APD as
an environmental measure is also, in my
judgment, a question which, if relevant,
is   to   be   determined   on   the   basis   of
evidence   and   argument   before   the   Court,
86

and  not  on   the  basis  of  the  opinion  of
anyone whose evidence is not before the
Court. There is, however, no reason why
the Claimants cannot take from what has
been   said   to   or   by   a   Select   Committee
points that can be put before the Court.

For   example,   what   was   said   by   the
Financial   Secretary   to   the   Treasury   to
the  Select   Committee   on  the  Environment
is   not   rocket   science,   but   something
that would be obvious to anyone who gave
the   matter   some   thought.   The   points   he
made   can   be  made   independently,  without
reference to his statement.

125.   Thus,   in   the   end,   I   do   not   think
that the Parliamentary material referred
to by the Claimants, which I have looked
at de bene esse , as such advances their
case.”

96. Learned   counsel   for   the   respondents   has   pleaded

reliance on a judgment of  R v. Secretary of State for

Trade   and   others,   ex   parte   Anderson   Strathclyde   plc,

1983(2)     All   ER   233,  Dunn   LJ   while   delivering   his

opinion   has   observed   that   while   using   a   report   in

Hansard the Court would have to do more than take note

of the fact that a certain statement was made in the

House on a certain date. The Court had to consider the

statement   or   statements   with   a   view   to   determining

what was the true meaning of them, and what were the
87

proper   inferences   to   be   drawn   from   them.   This,

according to  Dunn LJ, would be contrary to Article  9

of   the   Bill   of   Rights.   Following   was   stated   by   the

Court:

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

97. It is relevant to note that the above opinion of

Dunn LJ was specifically disapproved by House of Lords
88

in  Pepper   (Inspector   of   Taxes)   V   Hart   (supra).  House

of Lords by referring to above opinion of Dunn LJ had

held   that   the   said   case   was   wrongly   decided.   It   is

useful   to   extract   following   observation   of   House   of

Lords:

”In   R   v   Secretary   of   State   for
Trade,   ex   p   Anderson   Strathclyde   plc
[1982]   2   All   ER   233   an   applicant   for
judicial   review   sought   to   adduce
parliamentary materials to prove a fact.
The   Crown   did   not   object   to   the
Divisional   Court   looking   at   the
materials   but   the   court   itself   refused
to   do   so   on   the   grounds   that   it   would
constitute   a   breach   of   art   9   (at   237,
239   per   Dunn   LJ).   In   view   of   the
Attorney   General's   concession   and   the
decision of this House in Brind's case,
in my judgment Ex p Anderson Strathclyde
plc was wrongly decided on this point.”

98. Another   case   learned   counsel   for   the   respondents

relied   on   is  Office   of   Government   Commerce   v.

Information   Commissioner   (supra).  Although,   it   was

held by Stanley Burnton J that there is no reason why

the   courts   should   not   receive   evidence   of   the

proceedings   of   Parliament   when   they   are   simply

relevant historical facts or events; no 'questioning'

arises in such a case. However, in paragraph 58 of the
89

judgment following was stated:

"58. In addition, in my judgment, there is
substance   in   Mr.   Chamberlain's   futher
submission,   summarised   at   para   23(b)(i)
above. If a party to proceedings before a
court (or the Information Tribunal) seeks
to   rely   on   an   opinion   expressed   by   a
select committee, the other party, if it
wishes to contend for a different result,
must   either   contend   that   the   opinion   of
the committee was wrong (and give reasons
why), there by at the very least risking
a   breach   of   parliamentary   privilege,   if
not   committing   an   actual   breach,   or,
because   of   the   risk   of   that   breach,
accept   that   opinion   notwithstanding   that
it   would   not   otherwise   wish   to   do   so.

This   would   be   unfair   to   that   party.   It
indicates   that   a   party   to   litigation
should not seek to rely on the opinion of
a parliamentary committee, since it puts
the other party at an unfair disadvantage
and, if the other party does dispute the
correctness   of   the   opinion   of   the
committee, would put the tribunal in the
position   of   committing   a   breach   of
parliamentary   privilege   if   it   were   to
accept that the parliamentary committee's
opinion was wrong. As Lord Woolf MR said
in Hamilton v Al Fayed [1999] I WLR 1569,
1586G,   the   courts   cannot   and   must   not
pass   judgment   on   any   parliamentary
proceedings.”

99. In   the   same   judgment   subsequently,   it   was   held

that   whether   there   is   any   breach   of   parliamentary

privilege   in   such   a   reference     will   depend   on   the
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purpose for which the reference is made. In paragraph

62 of the judgment following has been held:

"62.   Generally,   however,   I   do   not
think   that   inferences   can   be   drawn   from
references   made   by   the   court   to   the
reports   of   parliamentary   select
committees   in   cases   where   no   objection
was   taken   to   its   doing   so.   In   addition,
as   I   said   in   R(Federation   of   Tour
Operators)v   HM   Treasury   [2008]   STC   547,
whether   there   is   any   breach   of
parliamentary   privilege   in   such   a
reference will depend on the purpose for
which the reference is made. For example,
it   seems   to   me   that   there   can   be   no
objection   to   a   reference   to   the
conclusions   of   a   report   that   leads   to
legislation,   since   in   such   a   case   the
purpose   of   the   reference   is   either
historical   or   made   with   a   view   to
ascertaining   the   mischief   at   which   the
legislation   was   aimed;   the   reference   is
not   made   with   a   view   to   questioning   the
views expressed as to the law as at the
date of the report.”

100. We   are   of   the   view   that   the   law   as   broadly

expressed in paragraph 58 of the above case cannot be

accepted.   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
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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 fee 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. 

101. The   above   decisions   categorically   hold   that

Parliamentary materials including report of a Standing

Committee of a Parliament can very well be accepted in
92

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.  The cases of

Judicial   Review   have   been   recognised   as   another

category   where   the   Courts   examine   Parliamentary

proceedings to a limited extent.  

102. This Court in number of cases has also referred to

and relied Parliamentary proceedings including reports

of   the   Standing   Committee   of   the   Parliament.   Learned

counsel   for   the   petitioners   have   given   reference   to

several cases in this regard namely, Catering Cleaners

of Southern Railway Vs. Union of India  Anr., (1987) 1

SCC   700  where   the   Court   has   taken   into   consideration

report   of   a   Standing   Committee   of   Petitions.   Another

case   relied   on   is  Gujarat   Electricity   Board   Vs.   Hind

Mazdoor Sabha  Ors., (1995) 5 SCC 27.  In the case of

State of Maharashtra Vs. Milind  Ors., (2001) 1 SCC 4,

the   Court   has   referred   and   relied   to   a   Joint

Parliamentary   Committee   Report.   In   the   case   of
93

Federation of Railway Officers Association Vs. Union of

India, (2003) 4 SCC 289,  the Court has referred to a

report   of   the   Standing   Committee   of   parliament   on

Railways.     In   the   case   of  Ms.   Aruna   Roy     Ors.   Vs.

Union of India  Ors., (2002) 7 SCC 368,  report of a

Committee   namely   S.B.   Chavan   Committee,   which   was

appointed   by   the   Parliament   was   relied   and   referred.

M.C. Mehta Vs. Union of India, 2017 SCC Online 394 was

again   a   case   where   report   of   a   Standing   Committee   of

Parliament   on   Petroleum   and   Natural   Gas   has   been

referred   to   and   relied.   Other   judgments   where

Parliamentary   Committee   Reports   have   been   relied   are

Kishan Lal Gera Vs. State of Haryana  Ors., (2011) 10

SCC 529; Modern Dental College and Research Centre Vs.

State of Madhya Pradesh  Ors., (2016) 7 SCC 353;  and

Lal Babu Priyadashi Vs. Amritpal Singh, (2015) 16 SCC

795.

103. Learned   counsel   appearing   for   the   respondents   as

well as learned Attorney General has submitted that it

is true that in the above cases this Court has referred
94

to   and   relied   on   Parliamentary   Committee   Reports   but

the   issue   of   privilege   was   neither   raised   nor

considered.

104. We have already noticed that 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 Indian 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   us   to   conclude   that

there is no violation of any Parliamentary privilege in

accepting Reports of Parliamentary Committee in Court.

  

105. Now   we   come   to   question   that   when   Parliamentary

Reports cannot be questioned or impeached in Court of
95

Law for what use they may be looked into by Court of

Law.   We   have   already   noticed   above   ample   authorities

which   lays   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   by

learned   Attorney   General   as   well   as   the   respondents

themselves, we do not find any justification in reading

any prohibition for use of Reports for other purposes

which   are   legal   and   lawful,   without   breach   of   any

privilege. 

H. EXCLUSIONARY   RULES   HOW   FAR   APPLICABLE   IN   THE
INDIAN CONTEXT

106. We have already noticed English cases dealing with

exclusionary   rules   and   subsequent   cases   whittling

down   the   exclusionary   rules.   We   have   noticed   above

that in large number of cases this Court has referred

to   and   relied   on   Parliamentary   Standing   Committee

Reports.   In   most   of   the   said   cases,   the   objection
96

relating to Parliamentary privilege was neither raised

nor gone into, but there are few cases of this Court

where   the   principles   and   cases   pertaining   to

exclusionary   rules   were   gone   into   and   the   court

considered the Parliamentary materials thereafter.

 

107. In  State   of   Mysore   vs.   R.V.   Bidap,   1974   (3)   SCC

337,  the   Constitution   Bench   of   this   Court   speaking

through  Krishna   Iyer,   J.  stated   that   'Anglo­American

jurisprudence,   unlike   other   systems,   has   generally

frowned   upon   the   use   of   parliamentary   debates   and

press   discussions   as   throwing   light   upon   the   meaning

of   statutory   provisions'.  Justie   Krishna   Iyer  opined

that there is a strong case of whittling down the Rule

of Exclusion followed in the British courts.

In paragraph 5 of the judgment following was held:

"The   Rule   of   Exclusion   has   been
criticised by jurists as artificial. The
trend   of   academic   opinion   and   the
practice   in   the   European   system   suggest
that   interpretation   of   a   statute   being
an   exercise   in   the   ascertainment   of
meaning,   everything   which   is   logically
relevant should be admissible. Recently,
an   eminent   Indian   jurist   has   reviewed
the   legal   position   and   expressed   his
97

agreement   with   Julius   Stone   and   Justice
Frankfurter.   Of   course,   nobody   suggests
that   such   extrinsic   materials   should   be
decisive   but   they   must   be   admissible.
Authorship   and   interpretation   must
mutually illumine and interact. There is
authority   for   the   proposition   that
resort may be had to these sources with
great   caution   and   only   when
incongruities   and   ambiguities   are   to   be
resolved?   There   is   a   strong   case   for
whittling   down   the   Rule   of   Exclusion
following in  the British  courts and for
less apologetic reference to legislative
proceedings   and   like   materials   to   read
the meaning of the words of a statute.”

108. Another Constitution Bench in  R.S. Nayak vs. A.R.

Antulay,   1984   (2)   SCC   183,  considered   the   objection

that debates in Parliament or the reports of Committee

cannot   be   relied   as   per   the   'exclusionary   rules'.   In

paragraph   32   of   the   judgment,   Desai,   J.   speaking   for

the   Constitution   Bench   noticed   the   detailed

objections. In paragraph 33 this Court observed that

the   trend   certainly   seems   to   be   in   the   reverse   gear

that is use of report of Committee as external aids to

construction. In paragraph 33 following was stated:

"33.   The trend certainly seems to be in
the   reverse   gear   in   that   in   order   to
ascertain   the   true   meaning   of   ambiguous
words   in   a   statute,   reference   to   the
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reports   and   recommendations   of   the
commission   or   committee   which   preceded
the   enactment   of   the   statute   are   held
legitimate external aids to construction.
The modern approach has to a considerable
extent eroded the exclusionary rule even
in England.”

109. After considering the certain other cases and the

Bidap   case   (supra)  this   Court   held   that   those

exclusionary rules have been given a descent burial by

this Court. It is useful to extract the following from

paragraph 34 of the judgment:

“34..Further   even   in   the   land   of   its
birth,   the   exclusionary   rule   has
received a serious jolt in Black­
Clawson
International   Ltd.   v.   Paperwork   Waldhef
Ascheffenburg   AC(2)   Lord   Simon   of
Claisdale   in   his   speech   while   examining
the   question   of   admissibility   of   Greer
Report observed as under:

"At the very least, ascertainment
of   the   statutory   objective   can
immediately   eliminate   many   of   the
possible meanings that the language of
the Act might bear and if an ambiguity
still   remains,   consideration   of   the
statutory   objective   is   one   of   the
means of resolving it.

The   statutory   objective   is
primarily   to   be   collected   from   the
provisions   of   the   statute   itself.   In
these days, when the long title can be
99

amended   in   both   Houses,   I   can   see   no
reason for having recourse to it only
in   case   of   an   ambiguity­it   is   the
plainest   of   all   the   guides   to   the
general   objectives   of   a   statute.   But
it   will   not   always   help   as   to
particular   provisions.   As   to   the
statutory objective of these a report.

leading to the Act is likely to be the
most   potent   aid   and,   in   my   judgment,
it   would   be   more   obscurantism   not   to
avail   oneself   of   it.   here   is,   indeed
clear   and   high   authority   that   it   is
available for this purpose".

....A   reference   to   Halsbury's   Laws   of
England,   Fourth   Edition,   Vol.   44
paragraph   901,   would   leave   no   one   in
doubt   that   'reports   of   commissions   or
committees   preceding   the   enactment   of   a
statute may be considered as showing the
mischief   aimed   at   and   the   state   of   the
law   as   it   was   understood   to   be   by   the
legislature   when   the   statute   was
passed.'   In   the   footnote   under   the
statement   of   law   cases   quoted   amongst
others   are   R.   v.   Olugboja,   R.   v.

Bloxham,   in   which   Eighth   report   of
Criminal   Law   Revision   Committee   was
admitted   as   an   extrinsic   aid   to
construction.   Therefore,   it   can   be
confidently   said   that   the   exclusionary
rule   is   flickering   in   its dying   embers
in its native land of birth and has been
given a decent burial by this Court.....

100

Therefore,   departing   from   the   earlier
English decisions we are of the opinion
that   reports   of   the   committee   which
preceded the enactment of a legislation,
reports   of   Joint   Parliamentary
Committee, report of a commission set up
for   collecting.   information   leading   to
the   enactment   are   permissible   external
aids to construction....................
The   objection   therefore   of   Mr.   Singhvi
to   our  looking   into  the  history  of   the
evolution   of   the   section   with   all   its
clauses,   the   Reports   of   Mudiman
Committee and K Santhanam Committee and
such other external aids to construction
must be overruled.”

110. Thus,   in   the   above   two   cases,   this   Court   has

accepted   that   Parliamentary   materials   can   be   looked

into,   that   too   after   considering   the   exclusionary

rules which prohibited use of Parliamentary materials

in courts. As observed above, learned senior counsel,

Shri   Harish   Salve   and   Shri   K.K.   Venugopal,   learned

Attorney General  have 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
101

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, we fail to see any 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.

111. Learned   counsel   for   the   respondents   have   also

referred   to   judgment   of   this   Court   in  Jyoti   Harshad

Mehta (Mrs) and others vs. Custodian and others, 2009

(10) SCC 564.

112. In   the   above   case,   the   court   was   considering   an

Enquiry   Committee   Report,   namely,   Janakiraman

Committee   Report.   In   the   above   context   following

observations   were   made   in   paragraph   57   of   the

judgment:

"57.   It   is   accepted   fact   that   the
reports   of   the   Janakiraman   Committee,
the   Joint   Parliamentary   Committee   and
the   Inter­Disciplinary   Group   (IDG)   are
102

admissible   only   for   the   purpose   of
tracing   the   legal   history   of   the   Act
alone. The contents of the report should
not have been used by the learned Judge
of the Special Court as evidence,”

113. In   paragraph   28(viii)),   the   arguments   of

appellants   were   noticed   to   the   effect   that   Judge,

Special Court, committed a serious illegality insofar

as   he   relied   upon   the   Janakiraman   Committee   Report,

which was wholly inadmissible in evidence. The learned

Judge,   Special   Court,   had   passed   order   on   an

application   of   custodian   which   was   set   aside   by   this

Court   by   remitting   back   the   matter   to   Special   Court

with   some   directions.   The   Special   Court   thereafter

relying   on   the   said   Report   passed   order.   In   this

context,   observations   were   made   in   paragraph   57   that

the report can  be admissible only for the purpose of

tracing   the   legal   history   of   the   Act   alone   and   the

contents   of   the   report   should   not   have   been   used   by

the   learned   Judge   as   evidence.   This   Court   also   took

view that various audit reports were relied which were

not considered. In paragraph 58 following was stated:

"58. It does not appear that the Special
103

Judge had considered this aspect of the
matter   in   great   detail.   The   learned
Judge,   Special   Court,   should   consider
the   aforementioned   two   audit   reports   so
as to arrive at a positive finding with
regard   to   the   liabilities   and   assets
possessed   by   them   so   as   to   enable   to
pass appropriate orders.”

114. The   Special   Court   was   deciding   the  lis  in   which

party   had   filed   the   evidence.   Ignoring   the   same

reliance was placed on the report with regard to which

observation   was   made   in   paragraph   57.   The   Special

Judge ought to have considered the evidence which were

produced by the appellants and only reliance placed on

the   evidence   of   Janakiraman   Committee   Report   was

rightly   disapproved   by   this   Court.   The   above   was   a

case   where   sole   reliance   was   placed   on   the   Report

which   was   disapproved.   The   observation   made   by   the

Court that the report should not have been used by the

learned   Judge   as   evidence   was   made   in   above   context

which cannot be treated to mean that the report cannot

be accepted by a court as evidence. 

115. Another   judgment   which   has   been   relied   by   the
104

respondents   is  State   Bank   of   India   vs.   National

Housing   Bank   and   others,   2013   (16)   SCC   538.  In   the

above   case,   this   Court   made   following   observation   in

paragraph 50 of the judgment which has been relied: 

“50. It is well settled by a long line of
judicial   authority   that   the   findings   of
even   a   statutory   Commission   appointed
under   the   Commissions   of   Inquiry   Act,
1952   are   not   enforceable   proprio   vigore
as held in 
Ram Krishna Dalmia v. Justice
S.R. Tendolkar and Ors. : AIR 1958 SC 538
and   the   statements   made   before   such
Commission   are   expressly   made
inadmissible   in   any   subsequent
proceedings   civil   or   criminal.   The
leading   judicial   pronouncements   Maharaja
Madhava   Singh   v.   Secretary   of   State   for
India   in   Council   (1903­04)   31   IA   239
(
PC),   M.V.   Rajwade   v.   Dr.   S.M.   Hassan
MANU/NA/0131/1953   :   AIR   1954   Nag   71:   55
Cri LJ 366, 
Ram Krishna Dalmia v. Justice
S.R., AIR 1958 SC 538, 
State of Karnataka
v. Union of India,(1977) 4 SCC 608, 
Sham
Kant   v.   State   of   Maharashtra   :   (1992)
Supp   (2)   SCC   521   on   that   question   were
succinctly   analysed   by   this   Court   in   :
(2001) 6 SCC 181, Paras 29­34. Para 34 of
the judgment inter alia reads: 

34   ...   In   our   view,   the   courts,
civil or criminal, are not bound by
the   report   or   findings   of   the
Commission   of   Inquiry   as   they   have
to   arrive   at   their   own   decision   on
the   evidence   placed   before   them   in
accordance with law.”
105

116. In   the   above   case,   the   Court   has   relied   on

Janakiraman Committee which was not a statutory body,

authorised  to collect evidence and  was a body set up

by  the Governor of Reserve  Bank of  India  in exercise

of   its   administrative   functions   which   has   been   noted

by this Court in paragraph 51. The observation made by

this   Court   in   paragraph   50   has   to   be   read   in   the

context   of   observations   made   by   this   Court   in

paragraph 51 which is to the following effect:

51.   Therefore,   Courts   are   not   bound   by
the conclusions and findings rendered by
such   Commissions.   The   statements   made
before such Commission cannot be used as
evidence   before   any   civil   or   criminal
court.   It   should   logically   follow   that
even   the   conclusions   based   on   such
statements   can   also   not   be   used   as
evidence   in   any   Court.   Janakiraman
Committee   is   not   even   a   statutory   body
authorised   to   collect   evidence   in   the
legal sense. It is a body set up by the
Governor   of   Reserve   Bank   of   India
obviously   in   exercise   of   its
administrative functions,

...   the   Governor,   RBI   set   up   a
Committee   on   30   April,   1992   to
investigate   into   the   possible
irregularities   in   funds   management
by   commercial   banks   and   financial
institutions,  and  in  particular,   in
relation   to   their   dealings   in
Government securities, public sector
106

bonds   and   similar   instruments.   The
Committee   was   required   to
investigate   various   aspects   of   the
transactions   of   SBI   and   other
commercial   banks   as   well   as
financial   institutions   in   this
regard.”

117. The   above   judgment   cannot   be   read   to   mean   that

Parliamentary Committee reports cannot be adverted to.

This Court has referred to Commissions of Inquiry Act,

1952. The observations  were made in the light of law

as   contained   in   Section   6   of   the   Commissions   of

Inquiry   Act,   1952.   The   next   case   relied   on   by   the

respondents   is   judgment   of   this   Court   in  Common

Cause : A Registered Society vs. Union of India, 2017

(7) SCC 158. 

118. In the above judgment, this Court has referred to

Parliamentary   Standing   Committee   Report   in   paragraphs

14 and 16. In paragraph 21 it was held that opinion of

the   Parliamentary   Standing   Committee   would   not   be

sacrosanct. In paragraph 21 following observation was

made:

"21....The   view   of   the   Parliamentary
107

Standing   Committee   with   regard   to   the
expediency   of   the   Search/Selection
Committee   taking   decisions   when
vacancy/vacancies exists/exist is merely
an   opinion   which   the   executive,   in   the
first   instance,   has   to   consider   and,
thereafter,   the   legislature   has   to
approve.   The   said   opinion   of   the
Parliamentary   Standing   Committee   would
therefore   not   be   sacrosanct.   The   same,
in any case, does not have any material
bearing on the  validity of  the existing
provisions of the Act.”

119. The   above   judgments   do   not   lend   support   to   the

submission   of   the   respondents   that   Parliamentary

Standing Committee Report cannot be taken as evidence

in the Court or it cannot be looked into by the Court

for any purpose. 

I.  SEPARATION   OF   POWERS   AND   MAINTAINING   A   DELICATE

BALANCE   BETWEEN   THE   LEGISLATURE,   EXECUTIVE   AND

JUDICIARY

120. The essential characteristic of a Federation is a

distribution   of   limited   Executive,   Legislative   and

Judicial   authority   and   the   supremacy   of   Constitution.

Justice B. K. Mukherjea, Chief Justice, in  Ram Jawaya
108

Kapur Vs. State of Punjab, AIR 1955 SC 549 referred to

essential   characteristics   of   Separation   of   Powers   in

the   Indian   Constitution.     In   Para   12,   following   has

been held:­

“....The   Indian   Constitution   has   not
indeed   recognised   the   doctrine   of
separation   of   powers   in   its   absolute
rigidity   but   the   functions   of   the
different   parts   or   branches   of   the
Government   have   been   sufficiently
differentiated   and   consequently   it   can
very well be said that our Constitution
does   not   contemplate   assumption,   by  one
organ or part of the State, of functions
that essentially belong to another.....”

121. Separation   of   powers   between   Legislative,

Executive   and   Judiciary   has   been   regarded   as   basic

feature of our Constitution in  Kesavananda Bharti Vs.

State   of   Kerala,   AIR   1973   SC   1461.  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
109

'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.   These   thoughts

were expressed by this Court time and again. Suffice it

to refer, Constitution Bench of this Court in Special

Reference No. 1 of 1964 where Gajendragadkar, CJ., laid

down the following:

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

122. Learned   Attorney   General   has   submitted   that

relying   on   the   Doctrine   of   'Separation   of   Powers',

this   Court   may   desist   from   taking   into   consideration
110

the   Parliamentary   Committee's   Report.   As   observed

above,   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
111

be   applied,   subject   to   express   constitutional

provisions as contained in Constitution of India. 

123. We thus conclude that although, there is no rigid

separation of powers under the Constitution of India,

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.

J. ARTICLE 121  ARTICLE 122 OF THE CONSTITUTION OF 

INDIA

124. Relying   on   Article   121   and   Article   122   of   the

Constitution   of   India,   it   has   been   contended   by   the

learned   Attorney   General   as   well   as   other   learned

counsel   appearing   for   the   respondents   that   principle

enshrined   in   the   above­mentioned   articles   do   suggests

that   Court   has   to   keep   away   from   entertaining   any
112

challenge to any parliamentary proceeding, including a

Parliamentary Committee Report.

125. Although, heading of Article 122 reads 'Courts not

to   enquire   into   proceedings   of   the   Parliament'   but

substantive provision of Constitution, as contained in

sub­clause   (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.   Constitution   Bench   in

Special   Reference   No.   1   of   1964   (supra),   while

considering   the   scope   of   Article   194   of   the

Constitution laid down the following: 

"Our   Legislatures   have   undoubtedly
plenary   powers,   but   these   powers   are
controlled  by the basic concepts of the
written   Constitution   itself   and   can   be
exercised   within   the   legislative   fields
allotted   to   their   jurisdiction   by   the
113

three   Lists   under   the   Seventh   Schedule;
but   beyond   the   Lists,   the   Legislatures
cannot   travel.     They   can   no   doubt
exercise   their   plenary   legislative
authority   and   discharge   their
legislative   functions   by   virtue   of   the
powers conferred on them by the relevant
provisions   of   the   Constitution;   but   the
basis   of   the   power   is   the   Constitution
itself.   Besides,   the   legislative
supremacy   of   our   Legislatures   including
the Parliament is normally controlled by
the provisions contained in Part III  of
the   Constitution.     If   the   Legislatures
step   beyond   the   legislative   fields
assigned to them, or acting within their
respective   fields,   they   trespass   on   the
fundamental rights of the citizens  in a
manner   not   justified   by   the   relevant
articles   dealing   with   the   said
fundamental   rights,   their   legislative
actions are liable to be struck down by
courts   in   India.   Therefore,   it   is
necessary   to   remember   that   though   our
Legislatures   have   plenary   powers,   they
function within the limits prescribed by
the   material   and   relevant   provisions   of
the constitution.”

126.   As   observed   above,   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
114

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.   This Court in  Special Reference No. 1

of 1964 (Supra)  noticing the different constitutional

provisions   referred   to   various   privileges   which

although were enjoyed by the House of Commons, but are

no longer available to the Indian Legislature.

  

127.     The   power   of   judicial   review   enjoyed   by   this

Court   in   reference   to   legislation   and   some

parliamentary   proceedings   are   recognised   exceptions,

when   this   Court   can   enter   into   parliamentary   domain.

In   all   other   respects,   parliamentary   supremacy   with

regard to its proceedings, the procedure followed has

to be accepted. 

128.  In view of the above foregoing discussion, we

are of the view that on the strength of Article 122,

it   cannot   be   contended   that   Parliamentary   Standing
115

Committee Reports can neither be admitted in evidence

in Court nor the said reports can be utilised for any

purpose. 

K. COMMENTS   ON   REPORTS   OF   PARLIAMENTARY   COMMITTEE

WHETHER  BREACH OF PRIVILEGE

129.   The   freedom   of   speech   and   expression   is   one   of

the   most   cherished   fundamental   rights   guaranteed   and

secured by the  Constitution of  India. As early as in

1950   Patanjali   Sastri,   J.,   in  Romesh   Thappar   vs.   The

State of Madras, 1950 SCR 594, stated :

“freedom of speech and of the press lay
at   the   foundation   of   all   democratic
organisations,   for   without   free
political   discussion   no   public
education,   so   essential   for   the   proper
functioning   of   the   processes   of   popular
government, is possible.”

130.   Again   this   Court   in  Bennett   Coleman     Co.   and

Ors. Vs. Union of India (UOI) and Ors.  ,  AIR 1973 SC

106 (150),  held:  “Freedom of the Press is the Ark of

the Covenant of Democracy because public criticism is

essential   to   the   working   of   its   institutions.”   No
116

organ   of   the   state,   be   it   Judicature,   Executive   or

Legislature   is   immune   from     public   criticism;   public

criticism   is   an   instrument   to   keep   surveillance   and

check on all institutions in a democracy. 

131.  In Wason v. Walter (supra) Cockburn CJ., stated: 

"....it   may   be   further   answered   that
there is perhaps no subject in which the
public   have   a   deeper   interest   than   in
all   that   relates   to   the   conduct   of
public   servants   of   the   State,­   no
subject   of   parliamentary   discussion
which   more   requires   to   be   made   known
than an inquiry relating to it....”

132.     It   was   further   emphasised   that   deeper   public

interest is served in making public, the conduct of a

public   servant   or   any   inquiry   public,  Cockburn   CJ.,

further   held   that   there   is   a   full   liberty   of   public

writers   to   comment   on   the   conduct   and   motives   of

public   men.   The   recognition   of   making   comment   on   the

conduct   was   noticed   as   of   recent   origin.   It   was

further clearly laid down that comments on Members of

both the Houses of the Parliament can also be made by

which comments, it is the public which is the gainer.
117

Following   weighty   observations   were   made   by  Cockburn

CJ.:

“....The   full   liberty   of   public   writers
to comment on the conduct and motives of
public men has only in very recent times
been recognized. Comments on government,
on   ministers   and   officers   of   state,   on
members of both houses of parliament, on
judges   and   other   public   functionaries,
are   now   made   every   day,   which   half   a
century ago would have been the subject
of   actions   or   ex   officio   informations,
and   would   have   brought   down   fine   and
imprisonment   on   publishers   and   authors.
Yet   who   can   doubt   that   the   public   are
gainers by the  change, and  that,  though
injustice may often be done, and  though
public men may often have to smart under
the   keen   sense   of   wrong   inflicted   by
hostile criticism, the nation profits by
public opinion being thus freely brought
to   bear   on   the   discharge   of   public
duties?....”

133.   In reference to 'parliamentary privilege', House

of Lords after due consideration of Article 9 of Bills

of Right 1888 in  Pepper v. Hart (House of Lords) 1993

AC 593,  laid down : 'Article 9 cannot have effect, so

as to stifle the freedom of all to comment on what is

said   in   Parliament,   even   though   such   comment   may

influence members in what they  say.'  What is  said in
118

Parliament is thus clearly subject to fair comments by

all including Press.

134.     A   Constitution   Bench   of   this   Court   in  M.S.M.

Sharma vs. Sri Krishna Sinha and others, AIR 1959 SC

395, had occasion to consider parliamentary privileges

in reference to publication of a speech delivered by a

Member   of   Bihar   Legislative   Assembly,   commonly   known

as  Search Light Case.  In  his speech,  Member of Bihar

Legislative Assembly made critical reference to an ex­

Minister   of   Bihar.   The   Speaker,   on   a   point   of   order

raised by another Member directed expunging of certain

words   stated   with   regard   to   ex­Minister.   However,

notwithstanding   the   Speaker's   direction   of   expunging

the   portion   of   the   speech,   the  Search   Light,  in   its

issue dated 31st May, 1957, published a complete report

of   the   speech   of   the   Member   including   the   portion

which was directed to be expunged, a notice was given

to   the   Editor   of   the  Search   Light,   Shri   Sharma,   to

show   cause   as   to   why   appropriate   action   be   not

recommended for breach of privilege of the Speaker and
119

the Assembly in respect of the offending publication.

Shri Sharma, Editor filed writ petition  under Article

32   contending   that   the   said   notice   and   the   proposed

action   is   in   violation   of   his   fundamental   right   to

freedom   of   speech   and   expression   under   Article   19(1)

(a).   This   Court   held   that   principle   of  harmonious

construction  must   be   adopted   in   considering   Article

19(1)(a)   and   Article   194(1)   and   latter   part   of   sub­

clause (3) of Article 194. The Court further held that

the publication of  the speech by  Search Light  in  law

has to be regarded as unfaithful report,  prima facie,

constituting   a   breach   of   of   privilege,   following

observations were made in paragraph 32:

“32....The effect in law of the order of
the Speaker to expunge a portion of the
speech   of   a   member   may   be   as   if   that
portion had not been spoken. A report of
the   whole   speech   in   such   circumstances,
though   factually   correct,   may,   in   law,
be   regarded   as   perverted   and   unfaithful
report   and   the   publication   of   such   a
perverted   and   unfaithful   report   of   a
speech,   i.e.,   including   the   expunged
portion   in   derogation   to   the   orders   of
the   Speaker   passed   in   the   House   may,
prima facie, be regarded as constituting
a   breach   of   the   privilege   of   the   House
arising   out   of   the   publication   of   the
offending   news   item   and   that   is
120

precisely   the   charge   that   is
contemplated   by   the   Committee's
resolution   and   which   the   petitioner   is
by the notice called upon to answer. We
prefer   to   express   no   opinion   as   to
whether   there   has,   in   fact,   been   any
breach   of   the   privilege   of   the   House,
for   of   that   the   House   along   is   the
judge.”

135.   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.   In   this

context reference is also made to a judgment of House

of   Lords   in  Adam   v.   Ward,   1917   AC   309,    where

proceedings of Parliament were published containing a

slander remark on a servant of the  Crown. An enquiry

was conducted with regard to imputation and report was

published   for   vindication   of   the   honour   of   the

servant.   Following   was   laid   down   by   Lord   Atkinson   of

House of Lords: 

121

"I   think   it   may   be   laid   down   as   a
general   proposition   that   where   a   man,
through   the   medium   of   Hansard's   reports
of   the   proceedings   in   Parliament,
publishes to  the world vile slanders  of
a   civil,   naval,   or   military   servant   of
the   Crown   in   relation   to   the   discharge
by   that   servant   of   the   duties   of   his
office   he   selects   the   world   as   his
audience, and that it is the duty of the
heads   of   the   service   to   which   the
servant   belongs,   if   on   investigation
they   find   the   imputation   against   him
groundless,   to   publish   his   vindication
to   the   same   audience   to   which   his
traducer   has   addressed   himself.   In   my
view the  Army Council would have  failed
in   their   duty   to   General   Scobell
personally,   and   to   the   great   Service
which they in a certain sense govern and
control,   if   they   had   not   given   the
widest   circulation   to   the   announcement
of the General's vindication.”

136. In R v. Murphy, 1986 (5) NSWLR 18, Hunt, J.  held

that what is said and done in Parliament  can without

any breach of parliamentary privilege be impeached and

questioned   by   the   exercise   by   ordinary   citizens   of

their freedom of speech.  Following was held:

"I have already pointed out that what is
said and  done in  parliament can without
any breach of parliamentary privilege be
impeached and questioned by the exercise
by ordinary citizens of their freedom of
speech   (whether   or   not   in   the   media),
122

notwithstanding   the   fear   which   such
conduct   may   engender   in   members   of
Parliament   (and   committee   witnesses)   as
to the consequences of what they say or
do.   In   those   circumstances,   it   can   be
neither   necessary   nor   desirable   in
principle   that   what   is   said   or   done   in
parliament   should   not   be   questioned   (in
the   wider   sense)   in   courts   or   similar
tribunals   where   no   legal   consequences
are to be visited upon such members (or
witnesses)   by   the   proceedings   in
question.”

137.  The Privilege Committee of the Lok Sabha has also

recognised   the   right   of   fair   comment   in   following

words:

"Nobody would deny the members or as
a matter of fact, any citizen, the right
of   fair   comment.   But   if   the   comments
contain   personal   attack   on   individual
members   of   Parliament   on   account   of
their   conduct   in   Parliament,   or   if   the
langauage   of   the   comment   is   vulgar   or
abusive,   they   cannot   be   deemed   to   come
within   the   bounds   of   fair   comment   or
justifiable criticism”.

(As quoted in “Press  and Parliament”  by
A.N.   Grover   in   J.C.P.S.VXIII   1984   at
p.141.)

138. Erskine   May  in   'Parliamentary   Practice'   (Twenty

Fourth   Edition)  defines   contempt   in   the   following

words:

123

"Generally speaking, any act or omission
which   obstructs   or   impedes   either   House
of  Parliament in the  performance of its
functions, or which obstructs or impedes
any   Member   or   officer   of   such   House   in
the discharge of his duty, or which has
a   tendency,   directly   or   indirectly,   to
produce such  results, may be treated  as
a   contempt   even   though   there   is   no
precedent of the offence.”

139.  Referring to a case, Burdett v. Abbot, (1811) 104

ER 559, 561,  this Court in   Special Reference No.1 of

1964, (1965) 1 SCR 413, stated as follows:

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

140.  This Court in the Special Reference case also had
124

observed that the caution and principle which are kept

in mind by the courts while punishing for contempt are

equally   true   to   the   Legislatures   also.   Following

observations were made by this Court:

"Before   we   part   with   this   topic,   we
would like to refer to one aspect of the
question   relating   to   the   exercise   of
power to punish for contempt. So far as
the   courts   are   concerned,   Judges   always
keep   in   mind   the   warning   addressed   to
them   by   Lord   Atkin   in   Andre   Paul   v.

Attorney­General   of   Trinidad,   AIR   1936
PC 141. Said Lord Atkin, “Justice is not
a cloistered virtue; she must be allowed
to   suffer   the   scrutiny   and   respectful
even   though   out­spoken   comments   of
ordinary men.” We ought never to  forget
that   the   power   to   punish   for   contempt
large as it is, must always be exercised
cautiously,   wisely   and   with
circumspection.   Frequent   or
indiscriminate   use   of   this   power   in
anger   or   irritation   would   not   help   to
sustain   the   dignity   or   status   of   the
court,   but   may   sometimes   affect   it
adversely. Wise Judges never forget that
the best way to sustain the dignity and
status   of   their   office   is   to   deserve
respect from the public at large by the
quality   of   their   judgments,   the
fearlessness,   fairness   and   objectivity
of their approach, and by the restraint,
dignity   and   decorum   which   they   observe
in their judicial conduct. We venture to
think   that   what   is   true   of   the
Judicature   is   equally   true   of   the
legislatures.”
125

141. The  power  to punish for  contempt is  a  privilege

available   to   Parliament   which   is   defined   as   'keynote

of Parliamentary Privileges'. 

142.   From  what  has   been  stated   above,  we  are   of  the

view that 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. 

143.  In the present case, learned counsel for the

respondents   have   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
126

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. We   fail to see any 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. 

L. ADJUDICATION   IN   COURTS   AND   PARLIAMENTARY   COMMITTEE

REPORT

144.  '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
127

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. 

145.   Montesquieu  in   L'Esprit   des   Lois,   1748,  the

modern   exponent   of   the   doctrine   of   separation   of

powers states:

"When   the   legislative   and   executive
powers are united in the same person, or
on   the   same   body   or   Magistrates,   there
can   be   no   liberty.   Again,   there   is   no
liberty   if   the   judicial   power   is   not
separated   from   the   legislative   and
executive   powers.   Were   it   joined   with
the   legislative   power,   the   life   and
liberty of the  subject would be exposed
to   arbitrary   control;   for   the   Judge
would   then   be   the   legislator.   Were   it
joined   with   the   executive   power,   the
judge   might   behave   with   violence   and
oppression.   There   would   be   an   end   of
everything were the same man or the same
body to exercise these three powers...”.

146.   In our Constitution although there is no strict

separation   of   powers   of   the   three   branches   that   is
128

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.   A   nine­Judge   Constitution   Bench   in  I.R.

Coelho (Dead) by LRs. v. State of Tamil Nadu, 2007 (2)

SCC   1,  while   dealing   with   the   separation   of   powers

stated following in paragraphs 64, 65 and 67:

“64.  In   fact,   it   was   settled   centuries
ago that for preservation of liberty and
prevention   of   tyranny   it   is   absolutely
essential   to   vest   separate   powers   in
three different organs. In Federalist 47,
48,   and   51,   James   Madison   details   how   a
separation   of   powers   preserves   liberty
and   prevents   tyranny.   In   The   Federalist
47,   Madison   discusses   Montesquieu's
treatment of the separation of powers in
the Spirit of Laws (Book XI, Chapter 6).
There Montesquieu writes, 

"When   the   legislative   and   executive
powers are united in the same person, or
in   the   same   body   of   Magistrates,   there
can be no liberty.... Again, there is no
liberty,   if   the   judicial   power   be   not
separated   from   the   legislative   and
executive." 

Madison   points   out   that   Montesquieu   did
not   feel   that   different   branches   could
not   have   overlapping   functions,   but
129

rather   that   the   power   of   one   department
of   Government   should   not   be   entirely   in
the   hands   of   another   department   of
Government. 

65. Alexander Hamilton in The Federalist
78,   remarks   on   the   importance   of   the
independence of the judiciary to preserve
the   separation   of   powers   and   the   rights
of the people:

“The   complete   independence   of   the
courts of justice is peculiarly essential
in   a   limited   Constitution.   By   a   limited
Constitution,   I   understand   one   which
contains   certain   specified   exceptions   to
the   legislative   authority;   such,   for
instance, that it shall pass no bills of
attainder, no ex post facto laws, and the
like.   Limitations   of   this   kind   can   be
preserved   in   practice   in   no   other   way
than   through   the   medium   of   courts   of
justice, whose duty it must be to declare
all   acts   contrary   to   the   manifest   tenor
of   the   Constitution   void.   Without   this,
all the reservations of particular rights
or   privileges   would   amount   to   nothing.”
(434) 

67. The Supreme Court has long held that
the   separation   of   powers   is   part   of   the
basic structure of the Constitution. Even
before   the   basic   structure   doctrine
became   part   of   Constitutional   law,   the
importance of the separation of powers on
our   system   of   governance   was   recognized
by   this   Court   in   Special   Reference   No.1
of 1964, (1965) 1 SCR 413.”

147.   Adjudication   of   rights   of   the   people   is   a
130

function   not   entrusted   to   the   Legislature   of   the

country.   Apart   from   legislation   our   Parliament   has

become multi­functional 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. This Court

in  State of Karnataka v. Union of India, 1977 (4) SCC

608,  while   considering   Articles   105   and   194   of   the

Constitution of India laid down following:

"Our Constitution vests only legislative
power   in   Parliament   as   well   as   in   the
State   Legislatures.   A   House   of
Parliament   or   State   Legislature   cannot
try   anyone   or   any   case   directly,   as   a
Court of Justice can, but it can proceed
quasi­judicially in cases of contempt of
its   authority   and   take   up   motions
concerning   its   “privileges”   and
“immunities”   because,   in   doing   so,   it
only   seeks   removal   of   obstructions   to
the   due   performance   of   its   legislative
functions.   But,   it   any   question   of
jurisdiction   arises   as   to   whether   a
matter   falls   here   or   not,   it   has   to   be
decided   by   the   ordinary   courts   in
appropriate   proceedings.   For   example,
the   jurisdiction   to   try   a   criminal
offence,   such   as   murder,   committed   even
within   a   House   vests   in   ordinary
131

criminal   courts   and   not   in   a   House   of
Parliament or in a State Legislature.”

148.     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. 

149.   In  Dingle   v.   Associated   Newspapers   Ltd.   and

Others   (supra)  in   a   case   of   damages   for   libel   where

defendants   relied   on   Parliamentary   Committee   Report

published, Pearson, J., laid down as follows:

"...in   my   view,   this   court   should   make
its   own   findings   based   on   the   evidence
adduced and on the arguments presented in
this   court,   and   that   should   be   done
without   regard   to   any   decisions   reached
or opinions expressed or findings made by
a   different   tribunal   having   a   different
function, and, probably, different issues
before it, and having received different
evidence and a different presentation of
the case.”

150.     The   apprehension   of   the   respondents   that   their

case   shall   be   prejudiced   if   this   Court   accepts   the
132

Parliamentary   Committee   Report   in   evidence,   in   our

opinion is misplaced. By acceptance of a Parliamentary

Committee Report in evidence doest 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 Parliamentary

Committee   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
133

respondents,   their   fear   that   acceptance   of   report

shall prejudice their case is unfounded. We are, thus,

of   the   opinion   that   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.  

151.  OUR CONCLUSIONS

(i) According   to   sub­clause   (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 sub­clause

(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
134

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 Indian 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

Indian 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
135

Parliamentary Committee Report as 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
136

above   two   purposes,   we   fail   to   see   any   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) We are of the view that fair comments on report

of   the   Parliamentary   Committee   are   fully
137

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
138

on the basis of evidence and materials brought

before it.

 152. The questions having been answered as above,

let   these   writ   petitions   be   listed   before   the

appropriate Bench for hearing.

..............................J.

( ASHOK BHUSHAN )

NEW DELHI,
MAY 09, 2018.

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