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.
14
E. Supremacy of the Constitution
13. The Constitution of India is the supreme fundamental law
and all laws have to be in consonance or in accord with the
Constitution. The constitutional provisions postulate the
conditions for the functioning of the legislature and the executive
and prescribe that the Supreme Court is the final interpreter of
the Constitution. All statutory laws are required to conform to
the fundamental law, that is, the Constitution. The functionaries
of the three wings, namely, the legislature, the executive and the
judiciary, as has been stated in His Holiness Kesavananda
Bharati Sripadagalvaru v. State of Kerala and another 2,
derive their authority and jurisdiction from the Constitution. The
Parliament has the exclusive authority to make laws and that is
how the supremacy of the Parliament in the field of legislation is
understood. There is a distinction between parliamentary
supremacy in the field of legislation and constitutional
supremacy. The Constitution is the fundamental document that
provides for constitutionalism, constitutional governance and
also sets out morality, norms and values which are inhered in
various articles and sometimes are decipherable from the
2 AIR 1973 SC 1461 : (1973) 4 SCC 225
15
constitutional silence. Its inherent dynamism makes it organic
and, therefore, the concept of ―constitutional sovereignty‖ is
sacrosanct. It is extremely sacred and, as stated earlier, the
authorities get their powers from the Constitution. It is ―the
source‖. Sometimes, the constitutional sovereignty is described
as the supremacy of the Constitution.
14. In State of Rajasthan and others v. Union of India and
others 3 , Bhagwati, J. (as his Lordship then was), in his
concurring opinion, stated that the Constitution is suprema lex,
the paramount law of the land and there is no department or
branch of government above or beyond it. The learned Judge,
proceeding further, observed that every organ of the government,
be it the executive or the legislature or the judiciary, derives its
authority from the Constitution and it has to act within the limits
of its authority. Observing about the power of this Court, he
ruled that this Court is the ultimate interpreter of the
Constitution and to this Court is assigned the delicate task of
determining what is the power conferred on each branch of the
Government, whether it is limited, and if so, what are the limits
and whether any action of that branch transgresses such limits.
3 (1977) 3 SCC 592
16
He further observed that it is for this Court to uphold the
constitutional values and to enforce the constitutional
limitations, for it is the essence of the rule of law. Elaborating the
said concept, Sabharwal, C.J. in I.R. Coelho (Dead) by LRs. v.
State of T.N.4, speaking for the nine-Judge Bench, held that the
supremacy of the Constitution embodies that constitutional
bodies are required to comply with the provisions of the
Constitution. It also mandates a mechanism for testing the
validity of legislative acts through an independent organ, viz., the
judiciary.
15. Be it noted, in the aforesaid case, a distinction was drawn
between parliamentary and constitutional sovereignty. Speaking
on the same, the Bench opined that our Constitution was framed
by a Constituent Assembly which was not Parliament. It is in the
exercise of law-making power by the Constituent Assembly that
we have a controlled Constitution. Articles 14, 19 and 21
represent the foundational values which form the bedrock of the
rule of law. These are the principles of constitutionality which
form the basis of judicial review apart from the rule of law and
separation of powers.
4 (2007) 2 SCC 1
17
16. Thus, the three wings of the State are bound by the doctrine
of constitutional sovereignty and all are governed by the
framework of the Constitution. The Constitution does not accept
transgression of constitutional supremacy and that is how the
boundary is set.
F. Constitutional limitations upon the legislature
17. The law making power of the Parliament or State legislature
is bound by the concept of constitutional limitation. It is
necessary to appreciate what precisely is meant by constitutional
limitation. In State of West Bengal v. Anwar Ali Sarkar5, this
Court, in the context of freedom of speech and expression
conferred by Article 19(1)(a) of the Constitution, applied the
principle of constitutional limitation and opined that where a law
purports to authorise the imposition of restrictions on a
fundamental right in a language wide enough to cover
restrictions both within and without the limits of constitutionally
permissible legislative action affecting such right, it is not
possible to uphold it even so far as it may be applied within the
constitutional limits, as it is not severable. So long as the
possibility of its being applied for purposes not sanctioned by the
5 1952 SCR 284 : AIR 1952 SC 75
18
Constitution cannot be ruled out, it must be held to be wholly
unconstitutional and void. The emphasis was laid on
constitutional limitation. In K.C. Gajapati Narayan Deo v.
State of Orissa 6 , the Court adverted to the real purpose of
legislation and colourable legislation and, in that context,
expressed that when a scrutiny is made, it may appear that the
real purpose of a legislation is different from what appears on the
face of it. It would be a colourable legislation only if it is shown
that the real object is different as a consequence of which it lies
within the exclusive field of another legislature.
18. Dwelling upon the legal effect of a constitutional limitation
of legislative power with respect to a law made in derogation of
that limitation, the Court in Deep Chand v. State of Uttar
Pradesh and others7 reproduced a passage from Cooley‘s book
on ―Constitutional Limitation‖ (Eighth Edition, Volume I) which is
to the following effect:-
―From what examination has been given to this
subject, it appears that whether a statute is
constitutional or not is always a question of power;
that is, a question whether the legislature in the
particular case, in respect to the subject-matter of
the act, the manner in which its object is to be
accomplished, and the mode of enacting it, has kept
6 1954 SCR 1 : AIR 1953 SC 375
7 1959 Supp. (2) SCR 8 : AIR 1959 SC 648
19
within the constitutional limits and observed the
constitutional conditions.‖
Thereafter, the Constitution Bench referred to the
observations of the Judicial Committee in Queen v. Burah 8
wherein it was observed that whenever a question as to whether
the legislature has exceeded its prescribed limits arises, the
courts of justice determine the said question by looking into the
terms of the instrument which created the legislative powers
affirmatively and which restricted the said powers negatively.
The Constitution Bench also referred to the observations of the
Judicial Committee in Attorney-General for Ontario v.
Attorney-General for Canada 9 which were later on lucidly
explained by Mukherjea, J., (as he then was) in K.C. Gajapati
Narayan Deo (supra) to the effect that if the Constitution
distributes the legislative powers amongst different bodies which
have to act within their respective spheres marked out by specific
legislative entries or if there are limitations on the legislature in
the form of fundamental rights, the question will arise as to
whether, in a particular case, the legislature has transgressed the
8 (1878) LR 5 I.A. 178
9 (1912) AC 571
20
limits of its constitutional power in respect of the subject matter
of the statute or in the method of making it.
19. Recently, in Binoy Viswam v. Union of India and others10
this Court, while dealing with the exercise of sovereign power of
the Centre and the States in the context of levy of taxes, duties
and fees, observed that the said exercise of power is subject to
constitutional limitation. It is imperative to remember that our
Constitution has, with the avowed purpose, laid down the powers
exercised by the three wings of the State and in exercise of the
said power, the authorities are constitutionally required to act
within their spheres having mutual institutional respect to realize
the constitutional goal and to see that there is no constitutional
transgression. The grammar of constitutional limitation has to be
perceived as the constitutional fulcrum where control operates
among the several power holders, that is, legislature, executive
and judiciary. It is because the Constitution has created the
three organs of the State.
20. Under the Constitution, the Parliament and the State
legislatures have been entrusted with the power of law making.
Needless to say, if there is a transgression of the constitutional
10 (2017) 7 SCC 59
21
limitation, the law made by the legislature has to be declared
ultra vires by the Constitutional Courts. That power has been
conferred on the Courts under the Constitution and that is why,
we have used the terminology ―constitutional sovereignty‖. It is
an accepted principle that the rule of law constitutes the core of
our Constitution and it is the essence of the rule of law that the
exercise of the power by the State, whether it be the legislature or
the executive or any other authority, should be within the
constitutional limitations.
G. Doctrine of separation of powers
21. Having stated about constitutional sovereignty and
constitutional limitation, we may presently address the issue as
to how the Constitution of India has been understood in the
context of division of functions of the State. In Smt. Indira
Nehru Gandhi v. Shri Raj Narain and another11, Beg, J., in
his concurring opinion, quoted what M.C. Setalvad, a
distinguished jurist of India, had said in ―The Common Law in
India‖ (The Hamlyn Lectures), 12th Series, 1960. We think it
appropriate to reproduce the paragraph in entirety:-
―The Constitution divides the functions of the Union
into the three categories of executive, legislative and
11 1975 Supp. SCC 1
22
judicial functions following the pattern of the British
North America Act and the Commonwealth of
Australia Act. Though this division of functions is
not based on the doctrine of separation of powers as
in the United States yet there is a broad division of
functions between the appropriate authorities so
that, for example, the legislature will not be entitled
to arrogate to itself the judicial function of
adjudication. ‗The Indian Constitution has not
indeed recognised the doctrine of separation of
powers in its absolute rigidity but the functions of
the different parts or branches of the Government
have been sufficiently differentiated and
consequently it can very well be said that our
Constitution does not contemplate assumption, by
one organ or part of the State, of functions that
essentially belong to another.‘ (See: Rai Saheb Ram
Jawaya Kapur v. State of Punjab 12 ). This will no
doubt strike one accustomed to the established
supremacy of Parliament in England as unusual. In
the course of its historical development Parliament
has performed and in a way still performs judicial
functions. Indeed the expression ‗Court of
Parliament‘ is not unfamiliar to English lawyers.
However, a differentiation of the functions of
different departments is an invariable feature of all
written Constitutions. The very purpose of a written
Constitution is the demarcation of the powers of
different departments of Government so that the
exercise of their powers may be limited to their
particular fields. In countries governed by a written
Constitution, as India is, the supreme authority is
not Parliament but the Constitution. Contrasting it
with the supremacy of Parliament, Dicey has
characterised it as the supremacy of the
Constitution.‖
[Emphasis added]
12 AIR 1955 SC 549 : (1955) 2 SCR 225
23
22. The doctrine of separation of powers has become concrete in
the Indian context when the Court in Kesavananda Bharati’s
case treated the same as a basic feature of the Constitution of
India. In State of Himachal Pradesh v. A Parent of a Student
of Medical College, Simla and others13, this Court ruled that it
is entirely a matter for the executive branch of the Government to
decide whether or not to introduce any particular legislation. Of
course, any member of the legislature can also introduce
legislation but the Court certainly cannot mandate the executive
or any member of the legislature to initiate legislation, howsoever
necessary or desirable the Court may consider it to be. That is
not a matter which is within the sphere of the functions and
duties allocated to the judiciary under the Constitution. The
Court further observed that it cannot usurp the functions
assigned to the legislature under the Constitution and it cannot
even indirectly require the executive to introduce a particular
legislation or the legislature to pass it or assume to itself a
supervisory role over the law-making activities of the executive
and the legislature. In State of Tamil Nadu v. State of Kerala
and another 14 , this Court, laying down the principle of
13 (1985) 3 SCC 169
14 (2014) 12 SCC 696
24
separation of powers, stated that even without express provision
of the separation of powers, the doctrine of separation of powers
is an entrenched principle in the Constitution of India. The
doctrine of separation of powers informs the Indian constitutional
structure and it is an essential constituent of the rule of law.
23. In Bhim Singh v. Union of India and others15, the Court,
for understanding the concept of separation of powers, observed
that two aspects must be borne in mind. One, that separation of
powers is an essential feature of the Constitution and secondly,
that in modern governance, a strict separation is neither possible
nor desirable. Nevertheless, till this principle of accountability is
preserved, there is no violation of separation of powers and the
same is founded on keen scrutiny of the constitutional text. The
Constitution does not strictly prohibit overlap of functions and, in
fact, provides for some overlap in a parliamentary democracy.
What it prohibits is such exercise of function of the other branch
which results in wresting away of the regime of constitutional
accountability.
24. In Mansukhlal Vithaldas Chauhan v. State of Gujarat16,
Federation of Railway Officers Association and others v.
15 (2010) 5 SCC 538
16 AIR 1997 SC 3400 : (1997) 7 SCC 622
25
Union of India 17 and State of Maharashtra and others v.
Raghunath Gajanan Waingankar 18 , the Court applied the
principle of restraint, acknowledging and respecting the
constitutional limitation upon the judiciary to recognize the
doctrine of separation of powers and restrain itself from entering
into the domain of the legislature. Elaborating further, this Court
in Divisional Manager, Aravali Golf Club and another v.
Chander Hass and another 19 observed that under our
constitutional scheme, the Legislature, Executive and Judiciary
have their own broad spheres of operation and each organ must
have respect for the others and must not encroach into each
others‘ domain, otherwise the delicate balance in the Constitution
will be upset, and there will be a reaction.
25. In Asif Hameed and others v. State of Jammu and
Kashmir and others20, the Court observed that the Constitution
makers have meticulously defined the functions of various organs
of the State. The Legislature, Executive and Judiciary have to
function within their own spheres demarcated under the
Constitution. It further ruled that the Constitution trusts the
17 (2003) 4 SCC 289 : AIR 2003 SC 1344
18 AIR 2004 SC 4264
19 (2008) 1 SCC 683
20 AIR 1989 SC 1899
26
judgment of these organs to function and exercise their discretion
by strictly following the procedure prescribed therein. The
functioning of democracy depends upon the strength and
independence of each of its organs. The Legislature and the
Executive, the two facets of people’s will, have all the powers
including that of finance. The judiciary has no power over the
sword or the purse. Nonetheless, it has power to ensure that the
aforesaid two main organs of the State function within the
constitutional limits. It is the sentinel of democracy. Judicial
review is a powerful weapon to restrain unconstitutional exercise
of power by the legislature and the executive. The expanding
horizon of judicial review has taken in its fold the concept of
social and economic justice. The exercise of powers by the
legislature and executive is subject to judicial restraint and the
only check on the exercise of power by the judiciary is the self
imposed discipline of judicial restraint.
26. In I.R. Coelho (supra), adverting to the issue of separation
of powers, the nine-Judge Bench referred to the basic structure
doctrine laid down in Kesavananda Bharati (supra) by the
majority and the reiteration thereof in Indira Nehru Gandhi
27
(supra) and reproduced a passage from Alexander Hamilton‘s
book ―The Federalist‖ and eventually held:-
―67. The Supreme Court has long held that the
separation of powers is part of the basic structure of
the Constitution. Even before the basic structure
doctrine became part of constitutional law, the
importance of the separation of powers on our
system of governance was recognised by this Court
in Special Reference No. 1 of 1964.‖
27. From the above authorities, it is quite vivid that the concept
of constitutional limitation is a facet of the doctrine of separation
of powers. At this stage, we may clearly state that there can really
be no strait-jacket approach in the sphere of separation of powers
when issues involve democracy, the essential morality that flows
from the Constitution, interest of the citizens in certain spheres
like environment, sustenance of social interest, etc. and
empowering the populace with the right to information or right to
know in matters relating to candidates contesting election. There
can be many an example where this Court has issued directions
to the executive and also formulated guidelines for facilitation
and in furtherance of fundamental rights and sometimes for the
actualization and fructification of statutory rights.
28
H. Power of judicial review
28. While focussing on the exercise of the power of judicial
review, it has to be borne in mind that the source of authority is
the Constitution of India. The Court has the adjudicating
authority to scrutinize the limits of the power and transgression
of such limits. The nature and scope of judicial review has been
succinctly stated in Union of India and another v. Raghubir
Singh (Dead) by LRs. etc.21 by R.S. Pathak, C.J. thus:-
―….. The range of judicial review recognised in the
superior judiciary of India is perhaps the widest and
the most extensive known to the world of law. …
With this impressive expanse of judicial power, it is
only right that the superior courts in India should
be conscious of the enormous responsibility which
rest on them. This is specially true of the Supreme
Court, for as the highest Court in the entire judicial
system the law declared by it is, by Article 141 of
the Constitution, binding on all courts within the
territory of India.
And again:-
―Legal compulsions cannot be limited by existing
legal propositions, because there will always be,
beyond the frontiers of the existing law, new areas
inviting judicial scrutiny and judicial choice-making
which could well affect the validity of existing legal
dogma. The search for solutions responsive to a
changed social era involves a search not only among
competing propositions of law, or competing
versions of a legal proposition, or the modalities of
an indeterminacy such as ‗fairness‘ or21 (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
37that 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
38Constitution 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
63specific 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
69prevail, 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.‖‖
71The 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.‖72M.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 pending73 AIR 1965 SC 745
76before 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
77speech 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
86not 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
87enjoyed 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
88determination 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 that104 1939 AD 537 at p 542
105 384 U.S. 436 (1966)
112the 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 privilege1
PART AE.1 UK Decisions
E.2 India
F Separation of powers : a nuanced modern doctrine
G A functional relationship
H ConclusionA 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 A2 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 Alitigation 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.”33 Id, at pages 320-321
4
PART A6 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?.”44 Id, at page 322
5
PART BB 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 Bact 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 Bseparation 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; or8
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 BParliamentary 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 CReport 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 Constitution13 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 and11
PART Ccommittees 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 Cmembers 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 Cprotection 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 Cprocedure 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 the15
PART Cjurisdiction 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 Dextends 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 Committees22 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 Dforth 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 Dcommittees 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 Dmay 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 Dthe 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 DDepartment 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 EE 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. 52224
PART EReiterating 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 more15 (1992) 3 W.L.R. 1032
25
PART Estatements 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 EThe 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 Eauthority 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 Ecould 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 EHence 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 Lord19 (2007) 1 W.L.R. 2825
30
PART EBrowne-Wilkinson at p 639 A. The Joint Committee expressed
the view that Parliament should welcome this development, on
the basis that “Both parliamentary scrutiny and judicial review
have important roles, separate and distinct, in a modern
democratic society” (para 50) and on the basis that “The
contrary view would have bizarre consequences”, hampering
challenges to the “legality of executive decisions… by ring-
fencing what ministers said in Parliament, and making
“ministerial decisions announced in Parliament…less readily
open to examination than other ministerial decisions”: para 51.The Joint Committee observed, pertinently, that
“That would be an ironic consequence of
article 9. Intended to protect the integrity of the
legislature from the executive and the courts,
article 9 would become a source of protection
of the executive from the courts.””The Prime Minister’s statement in the House was “relied on for what it says,
rather than questioned or challenged”. This was permissible.
32 Toussaint is an important stage in the development of the law. A
statement made in Parliament by a Minister could be relied upon, not just to
explain the history of a law. Where there is a challenge to the exercise of
governmental authority on the ground that it is actuated by extraneous reasons,
a statement by a Minister in Parliament could be used in court in regard to
conduct outside Parliament. The challenge is not to a statement made in
Parliament but to governmental action outside. The statement would be relevant
to question an abuse of power by government.
31
PART E33 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] AC593), or to assist in establishing the policy objectives of an
enactment (Wilson v First County Trust Ltd (No 2) [2004] 1 AC816). 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 ECommittee. 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 include21(2009) 3 W.L.R. 627
33
PART Eparliamentary 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 EThe 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 in23(2004) 1 AC 816
36
PART EParliament 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 EMedia 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 that38
PART Ecertain 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 EParliamentary 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 India38 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 Espeech 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 Efederal 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 EConstitution 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 Evotes, 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.”28The 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 Eliability 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, to29 (2007) 3 SCC 184
45
PART Eput 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.”30While 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.”31Consequently, 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 34846
PART Eparliamentary 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.”32The Court will not exercise its power of judicial review where there is merely an
irregularity of procedure, in view of the provisions of Article 122(1). But judicial
review is not “inhibited in any manner” where there is a gross illegality or a
violation of constitutional provisions. While summarizing the conclusions of the
judgment, Chief Justice Sabharwal emphasized the need for constitutional
comity, since Parliament being a coordinate constitutional institution. The
expediency and necessity for the exercise of the power of privilege are for the
legislature to determine. Yet, judicial review is not excluded for the purpose of
determining whether the legislature has trespassed on the fundamental rights
32 Id, at page 360
47
PART Eof 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;.”3342 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 11348
PART Fparliamentary 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 Fwould 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 of35 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 Fscholars 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 FSeparation 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.”45This 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 MalcolmThorburn (eds.) PHILOSOPHICAL FOUNDATIONS OF CONSTITUTIONAL LAW, (Oxford University Press, 2016) 221.
54
PART Fcomponents, 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.”5148 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 FJeremy 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 Fwelfare 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 Fdiversity 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.”5750 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, 13258
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.”65While 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 FReduced 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 36660
PART FJustices 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…”63In 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.”65The 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. These63
Id, at page 452.64 (1975) Suppl SCC 1
65 Id, at page 261.66 (2007) 2 SCC 1
61
PART Fwould 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.”67A 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.”6952 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 77162
PART Fthat 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 perform70 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 58663
PART Fthe 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.”7254 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 53864
PART F55 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.”7556 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 15865
PART Fthe 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, will66
PART Fnot permit the Court to overstep its jurisdiction. Judicial
discipline must caution the Court against such an approach.”7858 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 Fand 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 Gremedies 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 relationship60 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 Gof 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 Gletter 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 Gwhich 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 G65 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 Gimplement 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 Gan 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 Gconstitute 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.”8268 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 58276
PART GIn 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 27277
PART GIn 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.”86In 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 of85 (1977) 2 SCC 611
86 Id, at page 614
87 1988 (Supp.) SCC 40178
PART HParliament 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.”88These 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 Conclusion69 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 H70 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 Hissues 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 Hwe 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 Htotalitarian 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 Hrecognizes 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
1REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTIONWRIT 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
2views 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?”
33. 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
4cervical 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
5while 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
6submitted 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.
7Petitioners 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
10the 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
11Parliament' 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
12that 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
13as 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
14Parliamentary 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
15questioning 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
16Reports 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
17things. 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
18that 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
19Petition (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
20Shri 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
21to 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
23immunities 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
24argued 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
25successive 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
26are 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
28to 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
29which 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
30report, 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.”
31B. 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
House6. 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
32Parliament
3. Contempts
4. Freedom from Arrest
5. Protection of witnesses and others before
Parliament6. 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
33of 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
34Parliament 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 and233.
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
36Case 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.
37The 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
38as 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
39Parliament. 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
41may 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
42treatise 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
43submitted 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
44held 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
45an 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
46publication 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
47proceedings 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
48being 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
49Reports of Parliamentary Standing Committee.
E. RULES AND PROCEDURES REGARDING PERMISSION FOR
GIVING EVIDENCE IN COURTS REGARDING PROCEEDINGS IN
PARLIAMENT57. 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
ParliamentLeave 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
50the 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
51the 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
53Sabha 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
54required 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
55take 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
5857(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
59privilege 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”.
6071. 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
61been 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%
62arrangement, 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
63inadmissibility 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 PARLIAMENT74. 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
64Parliamentary 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
65privileges 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
66it 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
67Article 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
68serve 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
69article 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
70walls 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
71proceedings 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
72Article 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
73whether, if reference to such
materials would otherwise be
appropriate, it would contravene
SI, art 9 of the Bill of Rights
(1688) or parliamentary privilege795.”
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
74any 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.”
7586. 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.”
7687. 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
77Hansard, 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.”
7889. 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
79Country 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
80Secretary 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
81Parliament" 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
82involved 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”.
83In 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
84its 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
85Parliamentary 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,
86and 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
87proper 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
88in 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
89judgment 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
90purpose 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
91on 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
92evidence 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
93Federation 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
94to 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
95Law 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 CONTEXT106. 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
96relating 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
97agreement 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
98reports 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 BlackClawson
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
99amended 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
101the 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
102admissible 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
103Judge 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
104respondents 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.”
105116. 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
106bonds 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
107Standing 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
108Kapur 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
110the 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
111be 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
112challenge 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
113three 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
114considered 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
115Committee 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
116organ 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.
117Following 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
118Parliament 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
119the 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
120precisely 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),
122notwithstanding 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
124observed 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.”
125141. 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
126permit 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
127criminal 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
128Legislature, 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
129rather 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
130function 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
131criminal 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
132Parliamentary 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
133respondents, 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
134which 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
135Parliamentary 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
136above 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
137protected 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
138on 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.
