KALPANA MEHTA AND OTHERS versus UNION OF INDIA AND OTHERS

[2018] 4 S.C.R. 1

KALPANA MEHTA AND OTHERS

UNION OF INDIA AND OTHERS

(Writ Petition (Civil) No. 558 of 2012)

MAY 09, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR, A. K. SIKRI,DR. D. Y. CHANDRACHUD AND ASHOK BHUSHAN, JJ.]

Public Interest Litigation:

Constitution of India – Arts. 32 and 136 – Report ofParliamentary Standing Committee – Reliance upon – Parliamentaryproceeding and its privilege – Scope of judicial review –Irregularities in the clinical trials for Human Papilloma Virus (HPV)vaccine – Justifiability of action taken by Drugs Controller Generalof India and Indian Council of Medical Research pertaining toapproval of vaccine – On facts, HPV vaccine manufactured bypharmaceutical company, for preventing cervical cancer in women– Experimentation of the vaccine as an immunisation by theGovernment of Gujarat and Andhra Pradesh on young adolescentgirls – Untimely death of the girls – Irregularities and health risk ofHPV vaccine pointed out by health activist – Appointment ofParliamentary Standing Committee to enquire into the allegedirregularities – 72[nd] and 81[st] Standing Committee Report indicatingvarious shortcomings and lapses of the Government Departments,ICMR, NGO and Pharmaceutical Companies – Thereafter filing ofwrit petition by activist challenging irregularities in the clinical trials– Reliance placed on the report of the Parliamentary StandingCommittee by petitioners – Case of Union of India that the Reportscould neither be looked into nor relied by this Court – Questionsframed by two-Judge Bench for reference to Constitution Bench-whether in litigation filed before this Court either u/Arts. 32 or136, the Court can refer to and place reliance upon the report ofthe Parliamentary Standing Committee; and whether such Reportcan be looked at for the purpose of reference – Held: Per curiam:In litigation filed either u/Arts. 32 or 136, judicial notice can betaken of the Parliamentary Standing Committee report, however,the report cannot be impinged or challenged in court of law.

CDEF

AArts. 32, 136 and 105 – Report of Parliamentary StandingCommittee indicating irregularities in the clinical trials for HumanPapilloma Virus (HPV) vaccine – Reference to and reliance uponby this Court – Held: Per Dipak Misra, CJI:(For himself andKhanwilkar, J.): Parliamentary Standing Committee report can betaken aid of for the interpretation of statutory provision – JudicialBnotice can be taken of the Parliamentary Standing Committee reportu/s. 57(4) of the Evidence Act and it is admissible u/s 74 of the Act– In litigation u/Art. 32 or Art. 136, this Court can take on recordthe report of the Parliamentary Standing Committee, however, itcannot be impinged or challenged in court of law – Where theCfact is contentious, the petitioner can always collect the facts frommany source and produce such facts by way of affidavits, and theCourt can render its verdict by way of independent adjudication –Report being in the public domain can invite fair comments andcriticism from the citizens – Per Chandrachud, J. (for himself andSikri, J.): Reliance upon the report of Parliamentary StandingDCommittee can be placed in proceedings u/Art. 32 or Art. 136 – Onpublication of the report, its reference in the course of judicialproceedings would not constitute breach of parliamentary privilege– Validity of the report cannot be called into question in the court –No Member of Parliament or person can be made liable for what isEstated in the course of the proceedings before ParliamentaryCommittee – When matter before the court assumes contentiouscharacter, finding of fact by the court must be premised on theevidence adduced in the judicial proceeding – (Per Ashok Bhushan,J): Reports submitted by Members of Parliament fully covered byprotection extended u/Art. 105 and they cannot be held liable forFanything said by them in Parliament or in any committee – Publicationof the reports not being only permitted, but also are beingencouraged by the Parliament and on publication it can be used bythe public in general – Judicial notice can be taken of the courseof proceedings of Parliament and the Legislature u/s. 57(4) –GParliamentary Committee Reports can be relied on for noticing anevent or history however, no party can be allowed to ‘question’ or‘impeach’ report of Parliamentary Committee – Admissibility of aParliamentary Committee Report in evidence does not mean thatfacts stated in the Report stand proved – When issues of facts comebefore the Court for adjudication, the Court is to decide the issuesHon the basis of evidence and materials brought before it.

Arts. 105, 118, 194, 121, 122 and 212 – Parliamentaryprivileges – Powers, privileges, etc of the Houses of Parliamentand of the members and Committees thereof – Publication of theparliamentary proceedings – Explained.

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

Parliamentary Standing Committees – Role, Relevance andsignificance – Explained.

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

Foundational fundamentals – Supremacy of the Constitution,Constitutional limitations, doctrine of separation of powers, powerof judicial review, interpretation of Constitution, interpretation offundamental rights and interpretation of other constitutionalprovisions – Analysis of.

Evidence Act, 1872 – s. 57(4) – Parliamentary proceedings –Applicability of the Act – Facts of which Court must take judicialnotice – Held: Under s. 57(4), the course of proceeding of Parliamentand the Legislature, established under any law are facts of whichjudicial notice shall be taken by the court – Parliamentary standingcommittee report can be judicially taken note of as such report comeswithin the ambit of s. 57(7) – Parliamentary standing committeereport being in the public domain is public document, thus, it isadmissible u/s. 74 of the Act.

Answering the Reference, the Court

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

1. Parliamentary Standing Committee report can be takenaid of for the purpose of interpretation of statutory provisionwherever it is so necessary and also it can be taken note of asexistence of historical fact. Judicial notice can be taken of theParliamentary Standing Committee report under Section 57(4) ofthe Evidence Act and it is admissible under Section 74 of thesaid Act. In litigation filed either under Article 32 or Article136 of the Constitution, this Court can take on record the reportof the Parliamentary Standing Committee. However, the report

Acannot be impinged or challenged in court of law. Where thefact is contentious, the petitioner can always collect the facts frommany source and produce such facts by way of affidavits, andthe Court can render its verdict by way of independentadjudication. The Parliamentary Standing Committee report beingin the public domain can invite fair comments and criticism fromBthe citizens as in such situation, the citizens do not reallycomment upon any member of the Parliament to invite the hazardof violation of parliamentary privilege. [Para 138][121-C-G]

Supremacy of the Constitution

C2. The Constitution of India is the supreme fundamentallaw and all laws have to be in consonance or in accord with theConstitution. The constitutional provisions postulate theconditions for the functioning of the legislature and the executiveand prescribe that the Supreme Court is the final interpreter ofthe Constitution. All statutory laws are required to conform toDthe fundamental law, that is, the Constitution. The functionariesof the three wings, namely, the legislature, the executive and thejudiciary derive their authority and jurisdiction form theConstitution. It is in the exercise of law-making power by theConstituent Assembly that Constitution has been controlled.EArticles 14, 19 and 21 represent the foundational values whichform the bedrock of the rule of law. These are the principles ofconstitutionality which form the basis of judicial review apart fromthe rule of law and separation of powers. Thus, the three wings ofthe State are bound by the doctrine of constitutional sovereigntyand all are governed by the framework of the Constitution. TheFConstitution does not accept transgression of constitutionalsupremacy and that is how the boundary is set. [Paras 13, 15,16][63-B-C; 64-D-E]

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

Constitutional limitations upon the legislature

3. The law making power of the Parliament or Statelegislature is bound by the concept of constitutional limitation. Itis necessary to appreciate what precisely is meant byconstitutional limitation. Under the Constitution, the Parliamentand the State legislatures have been entrusted with the power oflaw making. Needless to say, if there is transgression of theconstitutional limitation, the law made by the legislature has tobe declared ultra vires by the Constitutional Courts. That powerhas been conferred on the Courts under the Constitution andthat is why, the terminology-constitutional sovereignty is used.It is an accepted principle that the rule of law constitutes thecore of our Constitution and it is the essence of the rule of lawthat the exercise of the power by the State, whether it be thelegislature or the executive or any other authority, should bewithin the constitutional limitations. [Paras 17, 20][64-F; 66-E-F]State of West Bengal v. Anwar Ali Sarkar [1952] SCR284 : AIR 1952 SC 75; K.C. Gajapati Narayan Deo v.State of Orissa [1954] SCR 1 : AIR 1953 SC 375; DeepChand v. State of Uttar Pradesh and others [1959] Supp.2 SCR 8 : AIR 1959 SC 648; Binoy Viswam v. Union ofIndia and others (2017) 7 SCC 59 – referred to.

Queen v. Burah (1878) LR 5 I.A. 178; Attorney-Generalfor Ontario v. Attorney-General for Canada (1912) AC571 – referred to.

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

Doctrine of separation of powers

4. The concept of constitutional limitation is facet of thedoctrine of separation of powers. There can really be no strait-jacket approach in the sphere of separation of powers when issuesinvolve democracy, the essential morality that flows from theConstitution, interest of the citizens in certain spheres likeenvironment, sustenance of social interest, etc. and empoweringthe populace with the right to information or right to know inmatters relating to candidates contesting election. There can be

Amany an example where this Court has issued directions to theexecutive and also formulated guidelines for facilitation and infurtherance of fundamental rights and sometimes for theactualization and fructification of statutory rights. [Para 27][70-B-D]

BSmt. Indira Nehru Gandhi v. Shri Raj Narain andanother (1975) Supp. SCC 1 : [1976] SCR 347;Kesavananda Bharati v. State of Kerala [1973] Suppl.SCR 1 : (1973) 4 SCC 225; State of Himachal Pradeshv. Parent of Student of Medical College, Simla andothers [1985] 3 SCR 676 : (1985) 3 SCC 169; State ofCTamil Nadu v. State of Kerala and another [2014]12 SCR 875 : (2014) 12 SCC 696; Bhim Singh v. Unionof India and others [2010] 6 SCR 218 : (2010) 5SCC 538; Mansukhlal Vithaldas Chauhan v. State ofGujarat [1997] 3 Suppl. SCR 705 : (1997) 7 SCC 622;DFederation of Railway Officers Association and othersv. Union of India 2003 AIR 1344 : (2003) 4 SCC 289: [2003] 2 SCR 1085; State of Maharashtra and othersv. Raghunath Gajanan Waingankar 2004 AIR 4264 :[2004] 3 Suppl. SCR 365; Divisional Manager, AravaliGolf Club and another v. Chander Hass andEanother [2007] 12 SCR 1084 : (2008) 1 SCC 683; AsifHameed and others v. State of Jammu and Kashmir andothers [1989] 3 SCR 19 : (1989) 2 Suppl. SCC 364; IR Coelho v. State of Tamil Nadu [2007] 1 SCR 706 :(2007) 2 SCC 1 – referred to.

FPower of judicial review

5.1 Immense responsibility is laid on the Court pertainingto the exercise of the power keeping in view the accepted valuesof the present. An organic instrument requires the Court to drawstrength from the spirit of the Constitution. The propellingGelement of the Constitution commands the realization of thevalues. The aspiring dynamism of the interpretative process alsoexpects the same. This Court has the constitutional power andthe authority to interpret the constitutional provisions as well asthe statutory provisions. The conferment of the power of judicialHreview has great sanctity as the Constitutional Court has the

power to declare any law as unconstitutional if there is lack ofcompetence of the legislature keeping in view the field oflegislation as provided in the Constitution or if provisioncontravenes or runs counter to any of the fundamental rights orany constitutional provision or if provision is manifestly arbitrary.[Paras 28-29][71-C-E]

5.2 When judicial review is discussed, it is also necessaryto be alive to the concept of judicial restraint. The duty of judicialreview which the Constitution has bestowed upon the judiciaryis not unfettered; it comes within the conception of judicialrestraint. The principle of judicial restraint requires that judgesought to decide cases while being within their defined limits ofpower. Judges are expected to interpret any law or any provisionof the Constitution as per the limits laid down by the Constitution.[Para 30][71-F-G]Union of India and another v. Raghubir Singh (Dead)by LRs. Etc. [1989] 3 SCR 316 : (1989) 2 SCC 754;S.C. Chandra and others v. State of Jharkhand andothers [2007] 9 SCR 130 : (2007) 8 SCC 279; SureshSeth v. Commr., Indore Municipal Corpn. and others(2005) 13 SCC 287; Supreme Court Employees’ WelfareAssociation v. Union of India and another [1989]3 SCR 488 : (1989) 4 SCC 187; Census Commissionerand others v. R. Krishnamurthy [2014] 11 SCR 463: (2015) 2 SCC 796; Premium Granites and another v.State of T.N. and others [1994] 1 SCR 579 : (1994) 2SCC 691; M.P. Oil Extraction and another v. State ofM.P. and others [1997] 1 Suppl. SCR 671 : (1997) 7SCC 592; State of Madhya Pradesh v. Narmada BachaoAndolan and another [2011] 6 SCR 443 : (2011) 7SCC 639; State of Punjab and others v. Ram LubhayaBagga and others [1998] 1 SCR 1120 : (1998) 4 SCC117 – referred to.

5.3 The judicial restraint cannot and should not be suchthat it amounts to judicial abdication and judicial passivism. TheJudiciary cannot abdicate the solemn duty which the Constitutionhas placed on its shoulders, i.e., to protect the fundamental rightsof the citizens guaranteed under Part III of the Constitution.

AConstitutional Courts cannot sit in oblivion when fundamentalrights of individuals are at stake. The Constitution has conceivedthe Constitutional Courts to act as defenders against illegalintrusion of the fundamental rights of individuals. TheConstitution, under its aegis, has armed the Constitutional Courtswith wide powers which the Courts should exercise, without anBiota of hesitation or apprehension, when the fundamental rightsof individuals are in jeopardy. [Para 33][73-B-D]

Virendra Singh and others v. The State of UttarPradesh 1954 AIR 447 : [1955] SCR 415 – referredto.

5.4 While interpreting fundamental rights, theConstitutional Courts should remember that whenever anoccasion arises, the Courts have to adopt liberal approach withthe object to infuse lively spirit and vigour so that the fundamentalrights do not suffer. When it is said so, it may not be understoodDthat while interpreting fundamental rights, the ConstitutionalCourts should altogether depart from the doctrine of precedentsbut it is the obligation of the Constitutional Courts to act as sentinelon the qui vive to ardently guard the fundamental rights ofindividuals bestowed upon by the Constitution. Such an approachEapplies with more zeal in case of Article 32 of the Constitutionwhich has been described as “the very soul of the Constitution -the very heart of it.” Article 32 enjoys special status and, therefore,it is incumbent upon this Court, in matters under Article 32, toadopt progressive attitude. This would be in consonance withthe duty of this Court under the Constitution, that is, to secureFthe inalienable fundamental rights of individuals. [Paras 34-35][73-F; 74-A-B]

K.S. Srinivasan v. Union of India 1958 AIR 419 : [1958]SCR 1295 – referred to.

–GInterpretation of the Constitution The nature of duty castupon this Court

6. The Constitution being an organic document, its ongoinginterpretation is permissible. The supremacy of the Constitutionis essential to bring social changes in the national polity evolvedwith the passage of time. The interpretation of the ConstitutionH

is difficult task. While doing so, the Constitutional Courts arenot only required to take into consideration their own experienceover time, the international treaties and covenants but also keepthe doctrine of flexibility in mind. With the passage of time, theinterpretative process has become expansive. It has been builtbrick by brick to broaden the sphere of rights and to assert theconstitutional supremacy to meet the legitimate expectations ofthe citizens. The words of the Constitution have been injectedlife to express connotative meaning. The process of interpretationought to meet the values and aspirations of the present generationand it has two facets, namely, process of creation and discovery.While interpreting constitutional provision, one has to be guidedby the letter, spirit and purpose of the language employed thereinand also the constitutional silences or abeyances that arediscoverable. The scope and discovery has connection with thetheory of constitutional implication. Additionally, theinterpretative process of provision of Constitution is alsorequired to accentuate the purpose and convey the message ofthe Constitution which is intrinsic to the Constitution. [Paras 38-40][75-F-G; 76-B, G; 77-A]

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

Interpretation of fundamental rights:

7. In the initial years, after the Constitution came into force,the Court viewed each fundamental right as separate and distinct.That apart, the rule of restrictive interpretation was applied. Thecontours were narrow and limited. The perception changed whenthe Court focussed on the actual impairment caused by the lawrather than the literal validity of the law. Constitution and, inparticular, which protects and which entrenches fundamental

Arights and freedoms to which all persons in the State are to beentitled is to be given generous and purposive construction.The Court must interpret the Constitution in manner whichwould enable the citizens to enjoy the rights guaranteed by it infullest measure. [Para 41][77-B-C; 78-C-D]

BA.K. Gopalan v. State of Madras AIR 1950 SC 27 :[1950] SCR 88; I R Coelho v State of Tamil Nadu [2007]1 SCR 706 : (2007) 2 SCC 1; Rustom Cavasjee Cooperv. Union of India (1970) 1 SCC 248; Sakal Papers (P)Ltd. v. Union of India [1962] 3 SCR 842 : AIR 1962SC 305; Sambhu Nath Sarkar v. State of West BengalCand others [1974] 1 SCR 1 : (1973) 1 SCC 856;Haradhan Saha v. The State of West Bengal and others[1975] 3 SCC 198 : [1975] 1 SCR 778; Khudiram Dasv. State of West Bengal and others [1975] 2 SCR 832 :(1975) 2 SCC 81; Maneka Gandhi v. Union of IndiaDand another [1978] 1 SCC 248; M. Nagaraj and othersv. Union of India and others [2006] 7 Suppl. SCR 336: (2006) 8 SCC 212 – referred to.

Interpretation of other constitutional provisions

8. There has been deliberation upon the interpretation ofEother constitutional provisions that really do not touch the areaof fundamental rights but are fundamental for constitutionalgovernance and the duty of the Court is not to transgress theconstitutional boundaries. The concern is not with theinterpretation of such constitutional provisions which have impactFon the fundamental rights of the citizens. The concern is with theinterpretation of certain provisions that relate to parliamentaryprivilege and what is protected by the Constitution in certainarticles. This situation has emerged in the context of the Court’srole to rely upon the reports of Parliamentary StandingCommittees in the context of the constitutional provisionsGcontained in Arts 105 and 122. [Para 50][81-C-D]

B.R. Kapur v. State of T.N. and another [2001] 3 Suppl.SCR 191 : (2001) 7 SCC 231; Kesavananda Bharati v.State of Kerala [1973] Suppl. SCR 1 : (1973) 4 SCC225; Minerva Mills Ltd. and others v. Union of IndiaHand others [1981] 1 SCR 206 : (1980) 3 SCC 625;

Manoj Narula v. Union of India [2014] 9 SCR 965: (2014) 9 SCC 1; Kuldip Nayar and others v. Unionof India and others [2006] 5 Suppl. SCR 1 : (2006) 7SCC 1; G. Narayanaswami v. G. Pannerselvam andothers [1973] 1 SCR 172 : (1972) 3 SCC 717; Unionof India v. Sankalchand Himatlal Sheth and another[1978] 1 SCR 423 : (1977) 4 SCC 193 – referred to.

Melbourne Corporation v. Commonwealth [1947] 74CLR 31 (Aust); Australian Capital Television Pty.Limited and others and the State of New South Wales v.The Commonwealth of Australia and another [PoliticalAdvertising case] [1992] 177 CLR 106 (Aust);Massachusetts Bonding & Insurance Co. v. United States352 U.S. 128 (1956); R.E. Megarry, ‘A SecondMiscellany-at-Law’ (Stevens, London, 1973), p 152 –referred to.

perspective on the role of Parliamentary Committees

9. The parliamentary committee systems have emerged asa creative way of parliaments to perform their basic functions.They serve as the focal point for legislation and oversight. In anumber of parliaments, bills, resolutions and matters on specificissues are referred to specific committees for debate andrecommendations are made to the House for further debate.Parliamentary committees have emerged as vibrant and centralinstitutions of democratic parliaments of today’s world.Parliaments across the globe set up their own rules on howcommittees are established, the composition, the mandate andhow chairpersons are to be selected but they do have certaincharacteristics in common. They are usually small group of MPsbrought together to critically review issues related to particularsubject matter or to review specific bill. They are often expectedto present their observations and recommendations to theChamber for final debate. Often committees have multi-partycomposition. They examine specific matters of policy orgovernment administration or performance. Effective committeeshave developed degree of expertise in given policy area, oftenthrough continuing involvement and stable memberships. [Paras58-59][84-E-H]

AEntering the Committee System: State CommitteeAssignments, Ronald D. Hedlund, Political; ResearchQuarterly, Vol. 42, Issue 4, pp.597-625; WoodrowWilson, “Congressional Government”, 1885, quoted inthe JCOC Final Report, (Baltimore, the Johns HopkinsUniversity Press, 1981) p.69; National DemocraticBInstitute for International Affairs, Parliament’sOrgainzation: The Role of Committees and Party Whips– NDI Workshop in Mangochi, Malawi, June 1995(Washington : National Democratic Institute forInternational Affairs, 1995); “An Introduction to theCProcedure of House of Commons”; Hansard, 3rd Series,Vol.235 (1877) p. 1478;”Growth of Committee Systemin the Central Legislature of India 1920-1947" –referred to.

Parliamentary Committees in IndiaD

10. The founding fathers of the Constitution perceivedthat parliamentary system would respond effectively to theproblems arising from our diversity as also to the myriad socio-economic factors that the nation was faced with. With thatobjective, in the political system that is established,Eprominence was given to the Parliament, the organ that directlyrepresents the people and as such accountable to them. Thefunctions of the Parliament in modern times are not only diverseand complex in nature but also considerable in volume and thetime at its disposal is limited. It cannot, therefore, give closeconsideration to all the legislative and other matters that comeFup before it. good deal of its business is, therefore, transactedin the Committees of the House known as ParliamentaryCommittees. Parliamentary Committee means Committee whichis appointed or elected by the House or nominated by the Speakerand which works under the direction of the Speaker and presentsGits report to the House or to the Speaker. Founded on Englishtraditions, the Indian Parliament’s committee system has vitalrole in the parliamentary democracy. [Paras 70, 73-74][89-B-C; 90-F-H]

Rules of Procedure and Conduct of Business in LokSabha

11. close look at the functioning of these committeesdiscloses the fact that the committee system is designed toenlighten Members of Parliament (MPs) on the whole range ofgovernmental action including defence, external affairs, industryand commerce, agriculture, health and finance. They offeropportunities to the members of the Parliament to realize andcomprehend the dynamics of democracy. The members ofParliament receive information about parliamentary workings aswell as perspective on India’s strengths and weaknesses throughthe detailed studies undertaken by standing committees. Indianparliamentary committees are huge basin of information whichare made available to the Members of Parliament inorder to educate themselves and contribute ideas to strengthenthe parliamentary system and improve governance. Thecommittee system is designed to enhance the capabilities ofMembers of Parliament to shoulder greater responsibilities andbroaden their horizons. [Para 76]

Parliamentary privilege under the Indian Constitution

12.1 Article 105 of the Constitution is relevant tounderstand the status of parliamentary Committee and theprivileges it enjoys in the Indian content. Sub-article (2) of theArticle 105 clearly lays the postulate that no member of Parliamentshall be made liable to any proceedings in any court in respect ofanything he has said in the Committee. Freedom of speech thatis available to the members on the floor of the legislature is quitedistinct from the freedom which is available to the citizens underArticle 19(1)(a) of the Constitution. Members of the Parliamentenjoy full freedom in respect of what they speak inside the House.Article 105(4) categorically stipulates that the provisions ofclauses (1), (2) and (3) shall apply in relation to persons, who byvirtue of this Constitution, have the right to speak in, andotherwise to take part in the proceedings of, House of theParliament or any committee thereof as they apply in relation tothe members of the Parliament. Thus, there is completeconstitutional protection. Article 118 provides that each Houseof the Parliament may make rules for regulating, subject to theprovisions of this Constitution, its procedure and the conduct of

Aits business. The Parliament has been enabled by the Constitutionto regulate its procedure apart from what has been stated directlyin the Constitution. [Paras 86-87][96-G; 97-A, F-H; 98-A-B]

12.2 Article 105 of the Constitution is read mutatis mutandiswith Article 194 of the Constitution as the language in both theBArticles is identical, except that Article 105 employs the word“Parliament” whereas Article 194 uses the words “Legislatureof State”. Therefore, the interpretation of one of these articleswould invariably apply to the other and vice versa.[Para 88][98-C]

U.P. Assembly case [Special Reference No. 1 of 1964]C1965 AIR 745 : [1965] SCR 413; Raja Ram Pal v.Hon’ble Speaker, Lok Sabha and others [2007] 1SCR 317 : (2007) 3 SCC 184 – referred to.Black’s Law Dictionary, 6[th] Ed., 1990, 9.1197; ErskineMay’s Treatise on The Law, Privileges, Proceedings andD”–Usage of Parliament, (Lexis Nexis, 24[th]edn., 209;referred to.Judicial review of parliamentary proceedings and itsprivilege

13. Articles 121 and 122 of the Constitution are extremelyEsignificant as they are really meant to state the restrictionsimposed by the Constitution on both the institutions. TheConstitutional Courts are not prevented from scrutinizing thevalidity of the action of the legislature trespassing on thefundamental rights conferred on the citizens; that there is noabsolute immunity to the parliamentary proceeding under ArticleF105(3); that the enforcement of privilege by the legislature canresult in judicial scrutiny though subject to the restrictionscontained in other constitutional provisions such as Articles 122and 212; that Article 122(1) and Article 212(1) prohibit the validityof any proceedings in the legislature from being called in questionGin court merely on the ground of irregularity of procedure, andthe proceedings which may be tainted on account of substantiveor gross illegality or unconstitutionality are not protected fromjudicial scrutiny. [Paras 101, 102, 105][104-G; 108-D-F]Hamilton v. Al Fayed [2001] 1 AC 395; Wellesley v.HDuke of Beaufort [1831] Eng R 809 : (1831) 2 Russ

& My 639: (1831) 39 ER 538; New BrunswickBroadcasting Co. v. Nova Scotia (Speaker of the Houseof Assembly) [1993] 1 SCR 319; Harvey v. NewBrunswick (Attorney General) [1996] 2 SCR 876;Bradlaugh v. Gossett (1884) 12 QBD 271 (D) – referredto.

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

Reliance on parliamentary proceedings as external aids

14.1 The reports or speeches have been referred to or notreferred to for the purposes indicated therein and when themeaning of statute is not clear or ambiguous, the circumstancesthat led to the passing of the legislation can be looked into inorder to ascertain the intention of the legislature. It is becausethe reports assume significance and become relevant becausethey precede the formative process of legislation. [Para112][111-F-G]

14.2 The Court can take aid of the report of theparliamentary committee for the purpose of appreciating thehistorical background of the statutory provisions and it can alsorefer to committee report or the speech of the Minister on thefloor of the House of the Parliament if there is any kind ofambiguity or incongruity in provision of an enactment. Further,it is quite vivid on what occasions and situations the ParliamentaryStanding Committee Reports or the reports of other ParliamentaryCommittees can be taken note of by the Court and for whatpurpose. Relying on the same for the purpose of interpreting themeaning of the statutory provision where it is ambiguous andunclear or, for that matter, to appreciate the background of theenacted law is quite different from referring to it for the purposeof arriving at factual finding. That may invite contest, achallenge, dispute and, if contest arises, the Court, in suchcircumstances, will be called upon to rule on the same. [Para117][113-E-G]R.S. Nayak v. A.R. Antulay[1984] 2 SCR 495 : (1984)2 SCC 183; State of West Bengal v. Union of India1963 AIR 1241 : [1964] SCR 371; K.P. Varghese v.Income Tax Officer, Ernakulam and another [1982]

A1 SCR 629 : (1981) 4 SCC 173; Dr. Ramesh YeshwantPrabhoo v. Prabhakar Kashinath Kunte and others[1995] 6 Suppl. SCR 371 : (1996) 1 SCC 130; NovartisAG v. Union of India and others [2013] 13 SCR 148 :(2013) 6 SCC 1; State of Madhya Pradesh and anotherv. Dadabhoy’s New Chirimiri Ponri Hill Colliery Co.BPvt. Ltd. [1972] 2 SCR 609 : (1972) 1 SCC 298; Unionof India v. Steel Stock Holders Syndicate, Poona [1976]3 SCR 504 : (1976) 3 SCC 108; Surana Steels Pvt.Ltd. v. Dy. Commissioner of Income Tax and others[1999] 2 SCR 589 : (1999) 4 SCC 306; Ashoka KumarCThakur v. Union of India and others [2008] 4 SCR 1 :(2008) 6 SCC 1; Additional Commissioner of IncomeTax, Gujarat v. Surat Art Silk Cloth Manufacturers’Association, Surat [1980] 2 SCR 77 : (1980) 2 SCC31; Dharam Dutt and others v. Union of India andothers [2003] 6 Suppl. SCR 151 : (2004) 1 SCC 712;DKuldip Nayar and others v. Union of India and others[2006] 5 Suppl. SCR 1 : (2006) 7 SCC 1 – referredto.

Pepper v. Hart [1992] UKHL 3 : [1993] AC 593 :[1992] 3 WLR 1032; R. v. Vasil [1981] 1 SCR 469,E121 D.L.R. (3d) 41; Re Anti-Inflation Act (Canada)[1976] 2 SCR 373, 68 D.L.R. (3d) 452 – referred to.

Section 57(4) of the Evidence Act

15.1 Section 57 of the Evidence Act by employing the words“shall”, casts an obligation upon the Courts to take judicial noticeFof the said facts. Section 57, sub-section (4) casts an obligationon the Courts to take judicial notice of the course of proceedingsof Parliament. Parliamentary standing committee report being inthe public domain is public document. Therefore, it is admissibleunder Section 74 of the Act and judicial notice can be taken ofGsuch document as envisaged under Section 57(4) of the Act.The said document can be taken on record. It can be taken aid ofto understand and appreciate statutory provision if it is unclear,ambiguous or incongruous. It can also be taken aid of toappreciate what mischief the legislative enactment intended toavoid. Additionally, it can be stated with certitude that there canH

be fair comment on the report and citizen in his own mannercan advance criticism in respect of what the report has stated.The right to fair comment is guaranteed to the citizens. It isbecause freedom of speech, as permissible within constitutionalparameters, is essential for all democratic institutions. Faircomments show public concern and, therefore, such commentscannot be taken exception to. That is left to public opinion andperception on which the grand pillar of democracy is furtherstrengthened. And, in all such circumstances, the question ofparliamentary privilege would not arise. [Paras 121, 123][115-B-F]

Sole Trustee Lok Shikshana Trust v. Commissioner ofIncome Tax, Mysore [1976] 1 SCR 461 : (1976) 1 SCC254 – referred to.

15.2 In the instant case at hand, the petitioners intend torely on the contents of the report and invite contest. In such asituation, the Court would be duty bound to afford the respondentsan opportunity of being heard in consonance with the principlesof natural justice. This, in turn, would give rise to very peculiarsituation as the respondents would invariably be left with theoption either to accept, without contest, the opinion expressedin the parliamentary standing committee report and the factsstated therein; or contest the correctness of the opinion of theparliamentary standing committee report and the facts statedtherein. In the former scenario, the respondents at the very leastwould be put in an inequitable and disadvantageous position. Itis in the latter scenario that the Court would be called upon toadjudicate the contentious facts stated in the report. Ergo,whenever contest to factual finding in PSC Report is likelyand probable, the Court should refrain from doing so. It is onething to say that the report being public document is admissiblein evidence, but it is quite different to allow challenge. [Para124][115-A-C; 116-A-C]

15.3 There is an intrinsic difference between parliamentaryproceedings which are in the nature of statement of Ministeror of Mover of bill made in the Parliament for highlighting thepurpose of an enactment or, for that matter, parliamentarycommittee report that had come into existence prior to theenactment of law and contestable/conflicting matter of “fact”

CDEF

Astated in the parliamentary committee report. It is theparliamentary proceedings falling within the former category ofwhich Courts are enjoined under Section 57, sub-section (4) totake judicial notice of, whereas, for the latter category ofparliamentary proceedings, the truthfulness of the contestablematter of fact stated during such proceedings has to be proved inBthe manner known to law. [Para 125][116-D-E]15.4 Taking judicial notice of the Parliamentary StandingCommittee report can only be to the extent that such reportexists. The said report can be taken aid of for understanding thestatutory provision wherever it is felt so necessary or to takeCcognizance of historical fact that is different from contest. Theword “contest”, means to make defence to an adverse claim in aCourt of law; to oppose, resist or dispute; to strive to win orhold; to controvert, litigate, call in question, challenge to defend.This being the meaning of the word “contest”, the submission toDadjudge the lis on the factual score of the report is to be negatived.[Para 127][116-G-H; 117-A]

Black’s Law Dictionary – referred to.

Reference to Parliamentary Standing Committee report

16.1 party can always establish his case on the materialsEon record and the Court can independently adjudicate thecontroversy without allowing challenge to ParliamentaryCommittee report. It is so thought as the Court has aconstitutional duty to strike delicate balance between thelegislature and judiciary. It is more so when the issue does notFinvolve fundamental right that is affected by parliamentaryaction. In such situation, the concept of jurisprudentialfoundational principle is dealt with having due regard toconstitutional conscience. The perception of self-evolved judicialrestraint and the idea of jurisprudential progression has to bejuxtaposed for seemly balance. There is no strait-jacket formulaGfor determining what constitutes judicial restraint and judicialprogressionism. Sometimes, there is necessity for the Courts toconceptualise path that can be wise middle path. The middlecourse between these two views is the concept of judicialengagement so that the concept of judicial restraint does not takeHthe colour of judicial abdication or judicial passivism. Judicialengagement requires that the Courts maintain their constitutionalobligation to remain the sentinel on qui vive. It requires vigilantprogressive judiciary for the rights and liberties of the citizens tobe sustained. Thus, as long as decision of Court is progressivebeing in accord with the theory of judicial engagement, theapproach would be to ensure the proper discharge of duty by theConstitutional Courts so as to secure the inalienable rights ofthe citizens recognized by the Constitution. The Court cannotabdicate its duty to allow injustice to get any space or not allowreal space to principle that has certain range of acceptability.[Para 135][119-B-E]

16.2 The Supreme Court ought not to shy away from itsprimary responsibility of interpreting the Constitution and otherstatutes in manner that is not only legally tenable but alsofacilitates the progress and development of the avowed purposeof the rights-oriented Constitution. The Constitution itself beinga dynamic, lively and ever changing document adapts to theparadigm of epochs. That being the situation, it is also for thisCourt to take fresh look and mould the existing precepts tosuit the new emerging situations. Thus, the Constitutional Courtsshould always adopt progressive approach and display dynamicand spirited discharge of duties regard being had to the conceptsof judicial statesmanship and judicial engagement, for theysubserve the larger public interest. In the instant case, theconstitutional obligation persuades to take the view that theParliamentary Standing Committee Report or ParliamentaryCommittee Report can be taken judicial notice of and regardedas admissible in evidence, but it can neither be impinged norchallenged nor its validity can be called in question. [Para137][120-F-G; 121-A-B]

Catering Cleaners of Southern Railway v. Union ofIndia and another [1987] 2 SCR 164 : (1987) 1 SCC700; State of Maharashtra v. Milind and others [2000]5 Suppl. SCR 65 : (2001) 1 SCC 4; Federation ofRailway Officers Association and others v. Union ofIndia 2003 AIR 1344 : (2003) 4 SCC 289; Ms. ArunaRoy and Others v. Union of India and others [2002]2 Suppl. SCR 266 : (2002) 7 SCC 368; M.C. Mehta v.

Union of India and others (2017) 7 SCC 243; Lal BabuPriyadarshi v. Amritpal Singh [2015] SCR 1009 : (2015)16 SCC 795; Gujarat Electricity Board v. Hind MazdoorSabha and others [1995] 1 Suppl. SCR 173 : (1995)5 SCC 27; Modern Dental College and Research Centreand others v. State of Madhya Pradesh and others(2016) 7 SCC 353; Krishan Lal Gera v. State ofHaryana and others [2011] 7 SCR 722 : (2011) 10SCC 529 – distinguished.

Lakshmi Kant Pandey v. Union of India [1984] 2 SCR795 : (1984) 2 SCC 244; Vishaka and others v. State ofRajasthan and others [1997] 3 Suppl. SCR 404 : (1997)6 SCC 241; Prakash Singh and others v. Union of Indiaand others [2006] 6 Suppl. SCR 473 : (2006) 8 SCC 1;Common Cause (A Regd. Society) v. Union of India 2018(4) SCALE 1; Shakti Vahini v. Union of India and others2018 (5) SCALE 51 – referred to.

Jajbhay v Cassim 1939 AD 537; Miranda v. Arizona384 U.S. 436 (1966) – referred to.

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

HELD: 1. As matter of principle, there is no reason whyreliance upon the report of Parliamentary Standing Committeecannot be placed in proceedings under Article 32 or Article 136of the Constitution. Once the report of Parliamentary Committeehas been published, reference to it in the course of judicialFproceedings will not constitute breach of parliamentary privilege.The validity of the report of Parliamentary Committee cannotbe called into question in the court. No Member of Parliament orperson can be made liable for what is stated in the course of theproceedings before Parliamentary Committee or for voteGtendered or given. When matter before the court assumes acontentious character, finding of fact by the court must bepremised on the evidence adduced in the judicial proceeding.[Para 74][183-C-E]

The Constitution

2.1 The first major principle which emerges from Article105 is that it expects, recognizes and protects the freedom ofspeech in Parliament. The principle enunciates vital norm forthe existence of democracy. Parliament represents collectively,through the representative character of its members, the voiceand aspirations of the people. Free speech within the Parliamentis crucial for democratic governance. It is through the fearlessexpression of their views that Parliamentarians pursue theircommitment to those who elect them. The power of speech exactsdemocratic accountability from elected governments. The freeflow of dialogue ensures that in framing legislation and overseeinggovernment policies, Parliament reflects the diverse views ofthe electorate which an elected institution represents. [Para14][129-E-G]

2.2 The Constitution recognizes free speech as afundamental right in Article 19(1)(a). separate articulation ofthat right in Article 105(1) shows how important the debates andexpression of view in Parliament have been viewed by the draftspersons. Article 105(1) is not simple reiteration or for that matter,a surplusage. It embodies the fundamental value that the freeand fearless exposition of critique in Parliament is the essenceof democracy. Elected members of Parliament represent thevoices of the citizens. In giving expression to the concerns ofcitizens, Parliamentary speech enhances democracy. Article 105(1)emphasizes free speech as an institutional value, apart from itbeing part of individual rights. Elected members of thelegislature continue to wield that fundamental right in theirindividual capacity. Collectively, their expression of opinion hasan institutional protection since the words which they speak arespoken within the portals of Parliament. This articulated majorpremise is however subject to the provisions of the Constitutionand is conditioned by the procedure of Parliament embodied inits rules and standing orders. The recognition in clause (1) thatthere shall be freedom of speech in Parliament is effectuated bythe immunity conferred on Members of Parliament against beingliable in court of law for anything said or for any vote given inParliament or committee. Similarly, person who publishes

DEF

Areport, paper, votes or proceedings under the authority ofParliament is protected against liability in any court. In otherrespects – that is to say, on matters other than those falling underclause (1) and (2), Parliament has been empowered to define thepowers, privileges and immunities of each of its Houses and ofits members and committees. Until Parliament does so, thoseBpowers, privileges and immunities are such as existedimmediately before the enforcement of the 44[th] amendment tothe Constitution. Clause (4) of Article 105 widens the scope ofthe protection by making it applicable “in relation to persons”who have right to speak in or to take part in the proceedingsCbefore the House or its committees. The protection afforded toMembers of Parliament is extended to all such persons as well.Committees of the Houses of Parliament are established by andunder the authority of Parliament. They represent Parliament.They are comprised within Parliament and are as much,Parliament. [Para 15][129-G-H; 130-A-F]D

2.3 The procedure and conduct of business of Parliamentare governed by the rules made by each House. The rule makingauthority is subject only to the provisions of the Constitution.Until rules are framed, the procedure of Parliament was to begoverned by the rules of procedure and Standing Orders whichEapplied to the legislature of the Dominion of India immediatelybefore the commencement of the Constitution (subject toadaptations and modifications). [Para 16][131-C-D]

2.4 Article 119 embodies special provision which enablesParliament to regulate the procedure for and conduct of businessFin each House in relation to financial matters or for appropriationof monies from the Consolidated Fund. Article 122 protects theproceedings in Parliament being questioned on the ground of anirregularity or procedure. In similar vein, Member ofParliament or an officer vested with authority under theGConstitution to regulate the procedure or the conduct of business(or to maintain order) in Parliament is immune from being subjectto the jurisdiction of any Court for the exercise of those powers.Those who perform the task-sometimes unenviable-ofmaintaining order in Parliament are also protected, to enable themto discharge their functions dispassionately. [Paras 17, 18][131-HG-H; 132-C-D]

2.5 The fundamental principle which the Constitutionembodies is in terms of its recognition of and protection to thefreedom of speech in Parliament. Freedom of speech has beenentrenched by conferring an immunity against holding Memberof Parliament liable for what has been spoken in Parliament orfor vote which has been tendered. The freedom to speak isextended to other persons who have right to speak in or takepart in the proceedings of Parliament. Parliament is vested withthe authority to regulate its procedures and to define its powers,privileges and immunities. The same protection which extendsto Parliamentary proceedings is extended to proceedings in orbefore the Committees constituted by each House. Parliamenthas been vested with complete and exclusive authority toregulate its own procedure and the conduct of its business. [Para20][132-F-H]

Parliamentary Standing Committees

3.1 Article 105 of the Constitution recognizes committeesof the Houses of Parliament. Rules of Procedure of the Lok Sabhaand the Rajya Sabha framed under Article 118(1) of theConstitution inter alia provide for the organization and workingof these committees. The rules governing procedure and theconduct of business in the Rajya Sabha provide for the constitutionof the committees of the House. Chapter IX contains provisionsrelating to legislation. Provisions have been made for Bills whichoriginate in the Rajya Sabha and for those which originate in theLok Sabha and are transmitted to the Rajya Sabha. [Paras 22,23][134-D-E]3.2 Chapter XXII of the Rules contains provisions in regardto Department related Parliamentary Standing Committees. Rule268 stipulates that there shall be Parliamentary StandingCommittees related to Ministries/Departments. Rule 270specifies the functions of the Standing Committees. Rule 274envisages that the report of the Standing Committee “shall bebased on broad consensus” though member may record adissent. The report of the Committee is presented to the Housesof Parliament. Under Rule 275, provisions applicable to SelectCommittees on Bills apply mutatis mutandis to the StandingCommittees. Rule 277 indicates that the report of Standing

ACommittee is to have persuasive value and is treated as adviceto the House. [Para 24][135-D-E; 136-C-D]

3.3 Department related Parliamentary Standing Committeesare Committees of the Houses of Parliament. The Committeescan regulate their procedure for requiring the attendance ofBpersons and for the production of documents. The Committeescan hear experts or special interests. These Committees ensureparliamentary oversight of the work of the ministries/departmentsof government. As part of that function, each Committeeconsiders demands for grants, examines Bills which are referredto it, considers the annual reports of the ministry/departmentCand submits reports on national long-term policy documents, whenthey have been referred for consideration. The reports of theseCommittees are published and presented to the Houses ofParliament. They have persuasive value and are advice givenby the Committee to Parliament Besides the Department relatedDStanding Committees, there is General Purposes Committee(Chapter XXIII) whose function is to consider and advise onmatters governing the affairs of the House, referred by theChairperson. Chapter XXIV provides for the constitution of aCommittee on Ethics to oversee “the moral and ethical conduct”of members, prepare code of conduct, examine cases of allegedEbreach and to tender advise to members on questions involvingethical standards. [Paras 24, 25][136-E-H; 137-A]

Parliamentary Privilege

4. The fundamental difference between the systems ofFparliamentary privilege in India and UK lies in the fact thatparliamentary sovereignty in the Westminster form of governmentin the UK has given way, in the Indian Constitution, toconstitutional supremacy. Constitutional supremacy mandates thatevery institution of governance is subject to the norms embodiedin the constitutional text. The Constitution does not allow for theGexistence of absolute power in the institutions which it creates.Judicial review as part of the basic features of the Constitutionis intended to ensure that every institution acts within its boundsand limits. The fundamental rights guaranteed to citizens are anassurance of liberty and recognition of the autonomy whichHinheres in every person. Hence, judicial scrutiny of the exercise

of parliamentary privileges is not excluded where fundamentalright is violated or gross illegality occurs. In recognizing theposition of Parliament as coordinate institution created by theConstitution, judicial review acknowledges that Parliament candecide the expediency of asserting its privileges in given case.The Court will not supplant such an assertion or intercede merelyon the basis of an irregularity of procedure. But where violationof constitutional prescription is shown, judicial review cannotbe ousted. [Para 43][156-F-H; 157-A-C]

Re: Powers, Privileges and Immunities of StateLegislatures Special Reference No. 1 of 1964 (1965) 1SCR 413; P V Narasimha Rao v. State (CBI/SPE) [1998]2 SCR 870 : (1998) 4 SCC 626; Raja Ram Pal v.Hon’ble Speaker, Lok Sabha [2007] 1 SCR 317 :(2007) 3 SCC 184; Amarinder Singh v. SpecialCommittee, Punjab Vidhan Sabha [2010] 4 SCR 1105 :(2010) 6 SCC 113 – referred to.

Bradlaugh v. Gossett (1884) 12 Q.B.D. 271;Dingle v.Associated Newspapers Ltd. (1960) 2 Q.B. 405; Churchof Scientology of California v. Johnson-Smith (1972) 1Q.B. 522; Pepper (Inspector of Taxes) v. Hart (1992) 3W.L.R. 1032; Richard William Prebble v. Television NewZealand (“Prebble”)(1994) 3 W.L.R. 970; Reg. v.Murphy (“Murphy”) (1986) 64 A.L.R. 498; Hamiltonv. AI Fayed (“Hamilton”)(2001) 1 A.C. 395; Toussaintv. Attorney General of Saint Vincent and the Grenadines(“Toussaint”)(2007) 1 W.L.R. 2825; Regina (Bradleyand Others) v. Secretary of State for Work and Pensions(Attorney General intervening) (2007) EWHC 242(Admin); Office of Government Commerce v.Information Commissioner (Attorney Generalintervening) (2009) 3 W.L.R. 627; Wheeler v. TheOffice of the Prime Minister (2014) EWHC 3815(Admin); Wilson v. First County Trust Ltd. (2004) 1AC816; Owen Robert Jennings v. Roger EdwardWyndham Buchanan (2004) UKPC 36; Prebble v.Television New Zealand Ltd (1994) 3 AII ER 407, PC;R v Currie (1992) – referred to.

26SUPREME COURT REPORTS

ASeparation of powers: nuanced modern doctrine5.1 While assessing the impact of the separation of powersupon the present controversy, certain precepts must beformulated. Separation of powers between the legislature, theexecutive and the judiciary is basic feature of the Constitution.BAs foundational principle which is comprised within the basicstructure, it lies beyond the reach of the constituent power toamend. It cannot be substituted or abrogated. While recognizingthis position, decided cases indicate that the Indian Constitutiondoes not adopt separation of powers in the strict sense.Textbook examples of exceptions to the doctrine include theCpower of the executive to frame subordinate legislation, the powerof the legislature to punish for contempt of its privileges and theauthority entrusted to the Supreme Court and High Courts toregulate their own procedures by framing rules. In makingsubordinate legislation, the executive is entrusted by theDlegislature to make delegated legislation, subject to its control.The rule making power of the higher judiciary has trappings of alegislative character. The power of the legislature to punish forcontempt of its privileges has judicial character. Theseexceptions indicate that the separation doctrine has not beenadopted in the strict form in our Constitution. But the importanceEof the doctrine lies in its postulate that the essential functionsentrusted to one organ of the state cannot be exercised by theother. By standing against the usurpation of constitutional powersentrusted to other organs, separation of powers supports the ruleof law and guards against authoritarian excesses. Parliament andFthe State Legislatures legislate. The executive frames policiesand administers the law. The judiciary decides and adjudicatesupon disputes in the course of which facts are proved and the lawis applied. The distinction between the legislative function andjudicial functions is enhanced by the basic structure doctrine.

The legislature is constitutionally entrusted with the power toGlegislate. Courts are not entrusted with the power to enact law.Yet, in constitutional democracy which is founded on thesupremacy of the Constitution, it is an accepted principle ofjurisprudence that the judiciary has the authority to test thevalidity of legislation. Legislation can be invalidated where theHenacting legislature lacks legislative competence or where there

is violation of fundamental rights. law which is constitutionallyultra vires can be declared to be so in the exercise of the powerof judicial review. Judicial review is indeed also part of the basicfeatures of the Constitution. Entrustment to the judiciary of thepower to test the validity of law is an established constitutionalprinciple which co-exists with the separation of powers. Where alaw is held to be ultra vires there is no breach of parliamentaryprivileges for the simple reason that all institutions created bythe Constitution are subject to constitutional limitations. Thelegislature, it is well settled, cannot simply declare that thejudgment of court is invalid or that it stands nullified. If thelegislature were permitted to do so, it would travel beyond theboundaries of constitutional entrustment. While the separationof powers prevents the legislature from issuing mere declarationthat judgment is erroneous or invalid, the law-making body isentitled to enact law which remedies the defects which havebeen pointed out by the court. Enactment of law which takesaway the basis of the judgment (as opposed to merely invalidatingit) is permissible and does not constitute violation of theseparation doctrine. That indeed is the basis on which validatinglegislation is permitted. [Para 58][170-G-H; 171-A-H; 172-A-B]

5.2 While the separation of powers, as principle,constitutes the cornerstone of our democratic Constitution, itsapplication in the actual governance of the polity is nuanced. Thenuances of the doctrine recognize that while the essential functionsof one organ of the state cannot be taken over by the other andthat sense of institutional comity must guide the work of thelegislature, executive and judiciary, the practical problems whicharise in the unfolding of democracy can be resolved throughrobust constitutional cultures and mechanisms. The separationdoctrine cannot be reduced to its descriptive content, bereft ofits normative features. Evidently, it has both normative anddescriptive features. In applying it to the Indian Constitution,the significant precept to be borne in mind is that no institutionof governance lies above the Constitution. No entrustment ofpower is absolute. [Para 59][172-B-D]

Ram Jawaya Kapur v State of Punjab [1955] 2 SCR225; Re: Powers, Privileges and Immunities of State

Legislatures [1965] 1 SCR 413; Indira Nehru Gandhiv. Raj Narain [1976] SCR 347 : (1975) Suppl SCC 1;I R Coelho v State of Tamil Nadu [2007] 1 SCR 706 :(2007) 2 SCC 1; State of Tamil Nadu v. State of Kerala[2014] 12 SCR 875 : (2014) 12 SCC 696; I.N. Saksenav. State of MP [1976] 3 SCR 237 : (1976) 4 SCC 750;Indian Aluminium Co. v. State of Kerala [1996] 2 SCR23 : (1996) 7 SCC 637; S.S Bola and Others v. B.DSardana & Others [1997] 2 Suppl. SCR 507 : (1997) 8SCC 522; Shri Prithvi Cotton Mills Ltd. v. BroachBorough Municipality [1970] 1 SCR 388 : (1969) 2SCC 283; Supreme Court Advocates-on-Record-Association and Ors. v. Union of India (2016) 5 SCC1; State of UP v. Jeet S Bisht [2007] 7 SCR 705 : (2007)6 SCC 586; Bhim Singh v. Union of India [2010] 6SCR 218 : (2010) 5 SCC 538; Supreme CourtAdvocates-on-Record Association v. Union of India(2016) 5 SCC 1; State of West Bengal v. Committee forProtection of Democratic Rights, West Bengal [2010] 2SCR 979 : (2010) 3 SCC 571; Common Cause v. Unionof India [2017] 3 SCR 291 : (2017) 7 SCC 158 –referred to.

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

The Separation Of Powers And Legislative InterferenceIn Judicial Process, Constitutional Principles AndLimitations by Peter Gerangelos Hart Publishing,2009; Public Lawby Tomkins Oxford UniversityPress, 2003; ‘Separating of Powers and ConstitutionalGovernment’ by Barendt[1995] Public Law 599 at599-60; Studies in Constitutional Law by Munro, 2[nd]edn (London, Butterworths, 1999) at 304; Law Libertyand Justice, The Legal Foundations of BritishConstitutionalism by TRS Allan (Oxford, ClarendonPress, 1993) chs 3 and 8; Constitutional Justice, ALiberal Theory of the Rule of Law by TRS Allan (Oxford,Oxford University Press, 2001);‘A Loss ofInnocence?: Judicial Independence and the Separation

of powers’ by R Stevens (1999) 19 Oxford Journal ofLegal Studies 365;Constitutionalism And TheSeparation Of Powers by MJC Vile Oxford UniversityPress, 1967; ‘The Constitutional Separation of Powers’by Aileen Kavanagh; The Constitutional Separation ofPowers by David Dyzenhaus and Malcolm Thorburn(eds.); Philosophical Foundations of Constitutional LawOxford University Press, 2016 p 221; What is Goodabout Legal Conventionalism?’ by Kyritsis (2008) 14Legal Theory 135, 154; Philosophical Foundations ofConstitutional Law, p 236;‘The Rehabilitation ofSeparation of Powers in UK’ by K Malleson in L. deGroot-van Leeuwen and W Rombouts, Separation ofPowers In Theory And Practice: An InternationalPerspective (Nijmegen: Wolf Publishing, 2010) 99-122,115; ‘Authority for Officials’ by J Waldron, in L. Meyer,S. Paulson and T. Pogge (eds), Rights, Culture, AndThe Law: Themes From The Legal And PoliticalPhilosophy Of Joseph Raz (Oxford University Press,2003) 45-70; ‘Institutional Approaches to JudicialRestraint’ by J King (2008) 28 Oxford Journal Of LegalStudies 409, 428; ‘The New Separation of Powers’- ATheory For The Modern State by Eoin Carolan’s(2009)(Oxford University Press, 2009) 253; TheProblems with the Theory of Separation of Powers’ EoinCarolan SSRN, (2011) 26 – referred to.

functional relationship:

6.1 Parliamentary committees owe their existence toParliament. They report to Parliament. They comprise of themembers of Parliament. Their work consists of tendering adviceto the legislature. parliamentary committee does not decide alis between contesting disputants nor does it perform anadjudicatory function. committee appointed by the House canundoubtedly receive evidence, including expert evidence, bothoral and documentary. Select Committee may be appointed bythe House to scrutinize Bill. When the committee performs itstask, its report is subject to further discussion and debate in theHouse in the course of which the legislative body would decide

Aas to whether the Bill should be enacted into law. The validity ofthe advice which is tendered by parliamentary committee inframing its recommendations for legislation cannot be subject toa challenge before court of law. The advice tendered is, afterall, what it purports to be: it is advice to the legislating body. Thecorrectness of or the expediency or justification for the advice isBa matter to be considered by the legislature and by it alone. [Para60][172-F-H; 173-A]

6.2 Department related standing committees areconstituted by Parliament to oversee the functioning of ministries/departments of government. It is through the work of theseCcommittees that Parliament exacts the accountability of theexecutive. It is through the work of these committees thatParliament is able to assess as to whether the laws which it hasframed are being implemented in letter and spirit and to determinethe efficacy of government policies in meeting the problems ofDthe day. [Para 61][173-B-C]

6.3 The contents of the report of parliamentary committeemay have bearing on diverse perspectives. The report iselucidated in order to determine whether, and if so to what extent,they can form the subject matter of consideration in the courseEof adjudication in court. The report of parliamentary committeemay contain statement of position by government on matters ofpolicy; the report may allude to statements made by persons whohave deposed before the Committee; the report may containinferences of fact including on the performance of government inimplementing policies and legislation; the report may containFfindings of misdemeanor implicating breach of duty by publicofficials or private individuals or an evasion of law; or the reportmay shed light on the purpose of law, the social problem whichthe legislature had in view and the manner in which it was soughtto be remedied. [Para 62][173-C-G]

6.4 The use of parliamentary history as an aid to statutoryconstruction is an area which poses the fewest problems. Inunderstanding the true meaning of the words used by thelegislature, the court may have regard to the reasons which haveled to the enactment of the law, the problems which were soughtHto be remedied and the object and purpose of the law. For

understanding this, the court may seek recourse to backgroundparliamentary material associated with the framing of the law. [Para63][173-G-H; 174-A]

Principles of Statutory Interpretation by Justice PSingh 14[th] edn.p 253 – referred to.

6.5 Reports of parliamentary committees may contain astatement of position by government on matters of policy. Thereis no reason in principle to exclude recourse by court to thereport of the committee at least as reflection of the fact thatsuch statement was made before the committee. Similarly, thata statement was made before the committee - as historical fact- may be taken note of by the court in situation where the makingof the statement itself is not contentious issue.[Para 64][174-D-E]

6.6 Committees of Parliament attached to ministries/departments of the government perform the function of holdinggovernment accountable to implement its policies and its dutiesunder legislation. The performance of governmental agencies mayform the subject matter of such report. In other cases, thedeficiencies of the legislative framework in remedying socialwrongs may be the subject of an evaluation by parliamentarycommittee. The work of parliamentary committee may traversethe area of social welfare either in terms of the extent to whichexisting legislation is being effectively implemented or inhighlighting the lacunae in its framework. There is no reason inprinciple why the wide jurisdiction of the High Courts underArticle 226 or of this Court under Article 32 should be exercisedin manner oblivious to the enormous work which is carried outby parliamentary committees in the field. The work of thecommittee is to secure alacrity on the part of the government inalleviating deprivations of social justice and in securing efficientand accountable governance. When courts enter upon issues ofpublic interest and adjudicate upon them, they do not dischargea function which is adversarial. The constitutional function ofadjudication in matters of public interest is in step with the roleof 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

Arelying upon the report of parliamentary committee. The courtdoes not adjudge the validity of the report nor for that matterdoes it embark upon scrutiny into its correctness. There is afunctional complementarity between the purpose of theinvestigation by the parliamentary committee and the adjudicationby the court. To deprive the court of the valuable insight of aBparliamentary committee would amount to excluding an importantsource of information from the purview of the court. To do so onthe supposed hypothesis that it would amount to breach ofparliamentary privilege would be to miss the wood for the trees.Once the report of the parliamentary committee has beenCpublished it lies in the public domain. Once Parliament has placedit in the public domain, there is an irony about the executiverelying on parliamentary privilege. There is no reason orjustification to exclude it from the purview of the material to whichthe court seeks recourse to understand the problem with which

it is required to deal. The court must look at the report with aDrobust common sense, conscious of the fact that it is not calledupon to determine the validity of the report which constitutesadvice tendered to Parliament. The extent to which the courtwould rely upon report must necessarily vary from case to caseand no absolute rule can be laid down in that regard. [Para 66][175-EC-H; 176-A-D]

6.7 There may, however, be contentious matters in thereport of parliamentary committee in regard to which the courtwill tread with circumspection. For instance, the report of thecommittee may contain finding of misdemeanor involving either

Fofficials of the government or private individuals bearing on aviolation of law. If the issue before the court for adjudication iswhether there has in fact been breach of duty or violation oflaw by public official or private interest, the court would haveto deal with it independently and arrive at its own conclusions

based on the material before it. Obviously in such case theGfinding by Parliamentary Committee cannot constitutesubstantive evidence before the court. The parliamentarycommittee is not called upon to decide lis or dispute involvingcontesting parties and when an occasion to do so arises beforethe court, it has to make its determination based on the materialH

which is admissible before it. An individual whose conduct hasbeen commented upon in the report of parliamentary committeecannot be held guilty of violation on the basis of that finding.[Para 67][176-D-G]

Jyoti Harshad Mehta v The Custodian [2009] 12 SCR1229 : (2009) 10 SCC 564; The Sole Trustee, LokShikshana Trust v The Commissioner of Income Tax,Mysore [1976] 1 SCR 461 : (1976) 1 SCC 254; OnkarNath v The Delhi Administration [1977] 2 SCR 991 :(1977) 2 SCC 611; Baburao Alias P Samant v Unionof India [1988] SCR 431: (1988) Suppl. SCC 401 –referred to.

6.8 It has been held by this Court that the production ofdebates of the Lok Sabha and Rajya Sabha containing theproceedings of the two Houses of Parliament, relating to theperiod between the time when the resolutions were moved ineach of the two Houses and the time when the resolutions wereduly adopted amounted to proof of the resolutions. The courtwas required to take judicial notice under Section 57 of theEvidence Act, 1872. [Para 68][179-D-E]

Conclusion

7.1 This Court must of necessity travel from literal andperhaps superficial approach, to an understanding of the essenceof what the Constitution seeks to achieve. Constitutional visionis about achieving social transformation which the Constitutionseeks to achieve is by placing the individual at the forefront of itsendeavours. Liberty, freedom, dignity and autonomy havemeaning because it is to the individual to whom the Constitutionholds out an assurance of protecting fundamental human rights.The Constitution is about empowerment. The democratictransformation to which it aspires places the individual at thecore of the concerns of governance. For colonial regime,individuals were subordinate to the law. Individuals were subjectto the authority of the state and their well-being was governed bythe acceptance of destiny wedded to its power. Thoseassumptions which lay at the foundation of colonial rule haveundergone fundamental transformation for nation of individuals

Agoverned by the Constitution. The Constitution recognises theirrights and entitlements. Empowerment of individuals through theenforcement of their rights is the essence of the constitutionalpurpose. Hence, in understanding the issues which have arisenbefore the Court in the present reference, it is well to remindthat since the Constitution is about transformation and its visionBis about empowerment, reading of precepts drawn from colonialpast, including parliamentary privilege, must be subjected to anuance that facilitates the assertion of rights and access to justice.The country no longer lives in political culture based on thesubordination of individuals to the authority of the State. TheCinterpretation of the Constitution must reflect keen sense ofawareness of the basic change which the Constitution has madeto the polity and to its governance. [Para 70][179-G; 180-A-F]

‘The Strange Alchemy of Life and Law’ by Justice AlbieSachs Oxford University Press 2009 pp 32-33 –Dreferred to.

7.2 Once the fulfilment of individual rights and humanfreedoms are placed at the forefront of constitutional discourse,the resolution of the instant case presents no difficulty. Individualsaccess courts to remedy injustice. As institutions which areEcommitted to the performance of duty to facilitate the realisationof human freedom, High Courts as well as this Court are under abounden obligation to seek and pursue all information on thecauses of injustice. Where the work which has been performedby coordinate constitutional institution-ParliamentaryCommittee, throws light on the nature of the injustice or its causesFand effects, constitutional theory which has to aid justice cannotlead to hold that the court must act oblivious to the content ofthe report. History and contemporary events across the worldare reminder that black-outs of information are used as willingally to totalitarian excesses of power. They have no place in aGdemocracy. Placing reliance on the report of the Committee doesnot infringe parliamentary privilege. No Member of Parliamentis sought to be made liable for what has been said or for votetendered in the course of debate. The correctness or validity ofthe report of Parliamentary Committee is not matter whichcan be agitated before the Court nor does the Court exerciseHsuch function. Where an issue of fact becomes contentious, itundoubtedly has to be proved before court independently onthe basis of the material on the record. In other words, where afact referred to in the report of the Parliamentary Committee iscontentious, the court has to arrive at its own finding on the basisof the material adduced before it. [Para 73][181-F-H; 182-A-C]

7.3 Parliamentary Committees are an intrinsic part of theprocess by which the elected legislature in democracy exactsaccountability on the part of the government. Department relatedParliamentary Standing Committees undertake the meticulousexercise of scrutinizing the implementation of law, includingwelfare legislation and the performance of the departments ofthe State. The purpose of law is to promote order for the benefitof the citizen and to protect rights and entitlements guaranteedby the Constitution and by statute. Access to justice as meansof securing fundamental freedoms and realizing socio-economicentitlements is complementary to the work of other organs ofthe State. The modern doctrine of separation of powers has movedaway from ‘one organ-one function’ approach, to more realisticperspective which recognizes the complementarity in the workwhich is performed by institutions of governance. Judicial reviewis founded on the need to ensure accountable governance in theadministration of law as an instrument of realizing the rightsguaranteed by the Constitution. If the function of judicial reviewin facilitating the realization of socio-economic rights is construedin the context of the modern notion of separation of powers, thereis no real conflict between the independence of the judicialprocess and its reliance on published reports of ParliamentaryCommittees. Ultimately it is for the court in each case todetermine the relevance of report to the case at hand and theextent to which reliance can be placed upon it to facilitate accessto justice. Reports of Parliamentary Committees become part ofthe published record of the State. As matter of principle, thereis no reason or justification to exclude them from the purview ofthe judicial process, for purposes such as understanding thehistorical background of law, the nature of the problem, thecauses of social evil and the remedies which may provideanswers to intractable problems of governance. The court will in

Athe facts of case determine when matter which is contentiousbetween the parties would have to be adjudicated uponindependently on the basis of the evidence adduced in accordancewith law. [Para 74][182-D-H; 183-A-B]

Per Ashok Bhushan, J (Concurring):.BHELD: 1. Reference is answered by holding that:

(i) According to sub-clause (2) of Article 105 of theConstitution of India no Member of Parliament can be heldliable for anything said by him in Parliament or in anycommittee. The reports submitted by Members ofCParliament is also fully covered by protection extendedunder sub-clause (2) of Article 105 of the Constitution ofIndia.

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

E(iii) Section 57(4) of the Evidence Act, 1872 makes it clearthat the course of proceedings of Parliament and theLegislature, established under any law are facts of whichjudicial notice shall be taken by the Court.

(iv) Parliament has already adopted report of “privilegeFcommittee”, that for those documents which are publicdocuments within the meaning of Evidence Act, there is norequirement of any permission of Speaker of Lok Sabhafor producing such documents as evidence in Court.

(v) That mere fact that document is admissible in evidenceGwhether public or private document does not lead to drawany presumption that the contents of the documents arealso true and correct.

(vi) When party relies on any fact stated in theParliamentary Committee Reports the matter of noticing

an event or history no exception can be taken on suchreliance 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 impeachedor questioned outside the Parliament shall equally applyboth to party who files claim in the court and other whoobjects to it. Any observation in the report or inference ofthe Committee cannot be held to be binding between theparties. The parties are at liberty to lead evidenceindependently to prove their stand in court of law.

(vii) Both the Parties have not disputed that ParliamentaryReports can be used for the purposes of legislative historyof Statute as well as for considering the statement madeby minister. When there is no breach of privilege inconsidering the Parliamentary materials and reports of theCommittee by the Court for the above two purposes, thereis no valid reason for not accepting the submission of thepetitioner that Courts are not debarred from accepting theParliamentary materials and reports, on record, before it,provided the Court does not proceed to permit the partiesto question and impeach the reports.

(viii) The Constitution does not envisage supremacy of anyof the three organs of the State. But, functioning of all thethree organs is controlled by the Constitution. Wherever,interaction and deliberations among the three organs havebeen envisaged, delicate balance and mutual respect arecontemplated. All the three organs have to strive to achievethe constitutional goal set out for ‘We the People’. Mutualharmony and respect have to be maintained by all the threeorgans to serve the Constitution under which we all live.

(ix) Fair comments on report of the ParliamentaryCommittee are fully protected under the rights guaranteedunder Article 19(1)(a). However, the comments when turnsinto personal attack on the individual member of Parliamentor House or made in vulgar or abusive language tarnishingthe image of member or House, the said comments amountto contempt of the House and breach of privilege.

38SUPREME COURT REPORTS

A(x) The function of adjudicating rights of the parties hasbeen entrusted to the constituted courts as perConstitutional Scheme, which adjudication has to be madeafter observing the procedural safeguards which includeright to be heard and right to produce evidence. Parliament,however, is not vested with any adjudicatory jurisdictionBwhich belong to judicature under the Constitutionalscheme.

(xi) Admissibility of Parliamentary Committee Report inevidence does not mean that facts stated in the Report standproved. When issues of facts come before Court of lawCfor adjudication, the Court is to decide the issues on thebasis of evidence and materials brought before it. [Para152][252-A-H; 253-A-H; 254-A]

Parliamentary Privileges:

D2. The Constitution of India by Article 105 and Article 194gives constitutional recognition of parliamentary privileges.Article 105 deals with ‘powers, privileges and immunities ofParliament and its Members whereas Article 194 deals with thepowers, privileges and immunities of State Legislatures and theirMembers. Both the provisions are identical. Sub-clause (1) ofEArticle 105 gives recognition to ‘freedom of speech’ inParliament. Sub-clause (2) of Article 105 enumerates theprivileges and immunities of Members of Parliament. There isabsolute protection to Member of Parliament against anyproceeding in any court, in respect of anything said or vote givenFby him in Parliament or any committee thereof. In the presentcase, the parliamentary privileges with regard to ParliamentaryStanding Committee’s Report is to be examined. According tosub-clause (2) of Article 105 of Constitution of India no Memberof Parliament can be held liable for anything said by him inParliament or in any committee. The reports submitted byGMembers of Parliament is also fully covered by protectionextended under sub-clause (2) of Article 105 of the Constitutionof India. Present is not case of any proceeding against anyMember of the Parliament for anything which has been said inthe Parliament Committee’s Report. Sub-clause (3) of Article 105Hof the Constitution of India begins with the words ‘in other

respects’. The words ‘in other respects’ clearly refer to powers,privileges and immunities which are not mentioned and referredto in sub-clauses (1) and (2) of Article 105. Sub-clause (3) of Article105 makes applicable the same powers, privileges and immunitiesfor Indian Parliament which were enjoyed by the House ofCommons at the time of enforcement of the Constitution of India.[Para 28-29, 31, 32, 34][194-C-D; 195-E-H; 196-A]

P. V. Narsimha Rao v. State (CBI/SPE), (1998) 4 SCC626 : [1998] 2 SCR 870 – referred to.

‘Parliamentary Practice’ by Erskine May, Twenty-fourth Edn; Halsbury’s Laws of England, Fifth Edn Vol.78 – referred to.

Privileges of House of Commons

3. The privileges of Indian Parliament are the privilegeswhich were enjoyed by the British House of Commons. From theparliamentary privileges as enumerated, it is clear that there is acomplete immunity to the Members of Parliament from anyproceeding for anything said in any committee of the Parliament.Present is not case where any proceedings are contemplatedagainst any Member of Parliament for anything which has beensaid in report of Committee, involving breach of any privilegeunder sub-clause (2) of Article 105 of the Constitution of India,but whether, there is any breach of privileges of Parliament inaccepting, referring and relying on Parliamentary CommitteeReport by this Court. [Para 39, 40][200-E-F]

Special Reference No.1 of 1964 (UP Assembly Case)AIR 1965 SC 745 : 1965 AIR 745 : [1965] SCR 413 –referred to.

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

The Role of Parliamentary Committee:

4. Present is case where Parliamentary StandingCommittee which has submitted the report is the ParliamentaryStanding Committee on Health and Family Welfare. The reports

Asubmitted by the Departmental Parliamentary StandingCommittees are reports of matters entrusted to it by Parliament,by the Speaker. Parliament to which Council of Ministers areresponsible, supervises the various works done by differentDepartments of the Government. Apart from the supervision,the committees also make recommendations and issue directions.BDirections and recommendations are to be implemented bydifferent Government Departments and action taken reports aresubmitted before the Parliament to be considered byDepartmental Standing Committees. The functions of thecommittees thus, play an important role in functioning of the entireCGovernment which is directly related to the welfare of the peopleof the country. [Para 49, 50][203-E-H; 204-A-B]

‘Constitutional History of England’ by F. W. Maitland;‘Parliamentary Procedure,’ by Dr. Subhash C. KashyapSecond Edn; ‘Practice & Procedure of Parliament’ byDM. N. Kaul and S. L. Shakdher Seventh Edn– referredto.

Publication of Parliamentary Reports

5. The rules framed under Article 118 of the Constitutionthus clearly permit the publication of parliamentary proceedings.EApart from publication of the proceedings of the Parliament,including the reports of the committees, now, they are alsopermitted to be broadcast on electronic media. The publicationof the reports not being only permitted, but also are beingencouraged by the Parliament. The general public are keenlyFinterested in knowing about the parliamentary proceedingsincluding parliamentary reports which are steps towards thegovernance of the country. As per rules framed under Article118, both for Lok Sabha and Rajya Sabha, the ParliamentaryStanding Committees are to follow the procedure after constitutionof the committee and till the reports are submitted to the Speaker.GDuring the intervening period, when the preparation of reportsis in process and it is not yet submitted to the Speaker andpublished, there is no right to know the outcome of the reports.It is submitted that the right to know about the reports only ariseswhen they have been published for use of the public in general.HThus, no exception can be taken in the petitioners obtaining 72[nd]

and 81[st] Reports of Parliamentary Standing Committee. [Paras55, 56][206-H; 207-A-D]

Rules and procedures regarding permission for givingevidence in courts regarding proceedings in parliament

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

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

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

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

7.2 According to Section 74 documents forming the acts,or records of the acts of Legislature of any part of India is publicdocument. Parliament has already adopted report of privilege

Acommittee that for those documents which are public documentswithin the meaning of Evidence Act, there is no requirement ofany permission of Speaker of Lok Sabha for producing suchdocuments as evidence in Court. However, mere fact that adocument is admissible in evidence whether public or privatedocument does not lead to draw any presumption that the contentsBof the documents also are true and correct. [Para 69][213-C-D]

Right Honourable Gerald Lord Strickland v. CarmeloMifsud Bonnici, AIR 1935 PC 34; Standard CharteredBank v. A.B.F.S.L & Ors. 2001 (4) BOM.LR 520 –referred to.CNature And Extent of Parliamentary Privileges RegardingReports of Committees of British Parliament

8.1 There is no doubt that reports of the StandingCommittee of the Parliament are also Parliamentary proceedings.DParticipation of members of Parliament in normal course is usuallyby speech but their participation in Parliamentary proceedingsis not limited to speaking only. Participation of members of theParliament is also by various other recognised forms such asvoting, giving notice of motion, presenting petition orsubmitting report of Committee, the modern forms ofEexpression by which the wish and will of Parliamentarians isexpressed. The report submitted by Standing Committee ofParliament is also another form of expression. Thus, theParliamentary privileges which are contained in Sub-clause (2) ofArticle 105 to individual Parliamentary member are also extendedFby virtue of Sub-clause (3) of Article 105 to the ParliamentaryCommittee Reports. The Parliamentary privileges contained inArticle IX of Bill of Rights thus also protect the ParliamentaryStanding Committee Reports. [Para 78][217-C-E]

Parliamentary Practice by Erskine May, 24[th] edn. –referred to.G

8.2 It is now well settled that proceedings undertaken inthe Parliament including report of the Standing Committeecannot be challenged before any Court. The word ‘challenge’includes both ‘impeaching’ and ‘questioning’ the ParliamentaryCommittee Reports. [Para 83][220-B]H

8.3 All references to Parliamentary proceedings andmaterials do not amount to breach of privilege to invite contemptof Parliament. When party relies on any fact stated in the reportas the matter of noticing an event or history no exception can betaken on reliance on such report. However, no party can beallowed to ‘question’ or ‘impeach’ report of ParliamentaryCommittee. The Parliamentary privilege that it shall not beimpeached or questioned outside the Parliament shall equallyapply both to party who files claim in the court and other whoobjects to it. Both parties cannot impeach or question the report.In so far as the question of unfair disadvantage is concerned,both the parties are free to establish their claim or objection byleading evidence in the court and by bringing materials to provetheir point. The court has the right to decide the ‘lis’ on the basisof the material and evidence brought by the parties. Anyobservation in the report or inference of the Committee cannotbe held to be binding between the parties or prohibit either ofthe parties to lead evidence to prove their stand in court of law.Unfair disadvantage stands removed in the above manner. [Para100][230-F-H; 231-A-B]

8.4 Parliamentary materials including report of StandingCommittee of Parliament can very well be accepted in evidenceby Court. However, in view of Parliamentary privileges asenshrined in Article IX of Bill of Rights, the proceedings ofParliament can neither be questioned nor impeached in Court ofLaw. [Para 101][231-C-D]

8.5 The Rules of Parliament, procedure permit theproduction of Parliamentary materials in Court of Law asevidence. The Parliamentary materials which are publicdocuments can be submitted before the Court without taking anypermission from Parliament. Thus, no exception can be taken inproducing Reports of Parliament Committee before Court ofLaw. The Evidence Act, 1874, which regulates the admission ofevidence in Court of Law, also refers to proceedings in Parliamentas public document of which Court shall take Judicial notice.All these factors lead to conclude that there is no violation of anyParliamentary privilege in accepting Reports of ParliamentaryCommittee in Court. [Para 104][232-C-D]

ABC

A8.6 When Parliamentary Reports cannot be questioned orimpeached in Court of Law for what use they may be looked intoby Court of Law. The authorities have laid down that for eventswhich take place in Parliament, the facts which was stated beforethe Parliament or Committee, are facts which can be lookedinto. Further when Parliamentary Reports can be looked into forBfew purposes as has been conceded, there is no justification inreading any prohibition for use of Reports for other purposeswhich are legal and lawful, without breach of any privilege. [Para105][232-E-F]

Catering Cleaners of Southern Railway v. Union ofIndia & Anr. (1987) 1 SCC 700 : [1987] 2 SCR 164;Gujarat Electricity Board v. Hind Mazdoor Sabha &Ors. (1995) 5 SCC 27 : [1995] 1 Suppl. SCR 173; Stateof Maharashtra v. Milind & Ors. (2001) 1 SCC 4 :[2000] 5 Suppl. SCR 65; Federation of Railway OfficersAssociation v. Union of India (2003) 4 SCC 289 : [2003]2 SCR 1085; Ms. Aruna Roy & Ors. v. Union of India& Ors. (2002) 7 SCC 368 : [2002] 2 Suppl. SCR 266;M.C. Mehta v. Union of India 2017 SCC Online 394;Kishan Lal Gera v. State of Haryana & Ors., (2011) 10SCC 529 : [2011] 7 SCR 722; Modern Dental Collegeand Research Centre v. State of Madhya Pradesh &Ors., (2016) 7 SCC 353; Lal Babu Priyadashi v. AmritpalSingh, (2015) 16 SCC 795 : [2015] SCR 1009 –referred to.

Stockdale v. Hansard 9 A.D. & E.2 p 1112; Bradlaughv. Gossett (1884) 12 Q.B.D. 271; Dingle v AssociatedNewspapers Ltd. & Ors. (1960) 2 Q.B. 405; Church ofScientology of California v. Johnson-Smith (1972) 1Q.B. 522; Pepper (Inspector of Taxes) v. Hart andrelated appeals 1993(1) All ER 42; Prebble v. TelevisionNew Zealand Ltd Privy Council (1994) 3 All ER 407;R. v. Murphy (1986) 5 NSWLR 18; Wilson v. FirstCountry Trust Ltd. (2003) UKHL 40; Touissant v.Attorney General of St. Vincent (2007) UKPC 48; Officeof Government of Commerce v. InformationCommissioner (2010) QB 98; Federation of Tour

Operators v. HM Treasury (2007) EWHC 2062(Admin); R v. Secretary of State for Trade and others,ex parte Anderson Strathclyde plc, 1983 (2) All ER 233– referred to.

Exclusionary Rules How Far Applicable In The IndianContext

9. This Court has held that Parliamentary materials can belooked into, that too after considering the exclusionary ruleswhich prohibited use of Parliamentary materials in courts. It isnot disputed that Parliamentary reports and materials can be usedfor the purposes of taking into consideration legislative historyfor interpretation of statute as well as for considering thestatement made by Minister. When there is no breach ofprivilege in considering the Parliamentary materials and reportsof the Committee by the Court for the above two purposes, thereis no valid reason for not accepting the submission of thepetitioner that courts are not debarred from accepting theParliamentary materials and reports as evidence before it,provided the court does not proceed to permit the parties toquestion or impeach the reports. [Para 110][235-D-F]

State of Mysore v. R.V. Bidap (1974) 3 SCC 337 : [1974]1 SCR 589; R.S. Nayak v. A.R. Antulay (1984) 2 SCC183 : [1984] 2 SCR 495; Jyoti Harshad Mehta (Mrs)and others v. Custodian and others (2009) 10 SCC 564: [2009] 12 SCR 1229; State Bank of India v. NationalHousing Bank and others (2013) 16 SCC 538; CommonCause : Registered Society v. Union of India (2017)(7) SCC 158 : [2017] 3 SCR 291 – referred to.

Separation of powers and maintaining delicate balancebetween the legislature, executive and judiciary:

10.1 There is no parliamentary privilege that ParliamentaryCommittee Reports or other parliamentary materials cannot begiven in evidence in any court of law. By accepting ParliamentaryReport as an evidence, there is no breach of any parliamentaryprivilege. It is also not out of place to mention that there is vitaldifference between parliamentary sovereignty in England andConstitutional supremacy in this country. It is well settled that

Aany law made by Parliament, which violates the fundamental rightsguaranteed under Part III of the Constitution, can be set asideby this Court in exercise of Jurisdiction of judicial review whichhas been granted by the Constitution to this Court. Parliamentarysovereignty, as enjoyed by the United Kingdom is not parallelexample in reference to functioning of different organs in thisBcountry, as controlled by the Constitution of India. Theparliamentary privilege, as guaranteed under Article 9 of Bill ofRights, (1688) that no proceeding of Parliament can be questionedand impeached thus has to be applied, subject to expressconstitutional provisions as contained in Constitution of India.C[Para 122][240-C-E]

10.2 Although, there is no rigid separation of powers underthe Constitution, but functions of all the three wings have beensufficiently differentiated and each has freedom to carry out itsfunctions unhindered by any other wing of the State. However, inDfunctioning of all the three organs, delicate balance, mutualharmony and respect have to be maintained for true working ofthe Constitution. [Para 123][240-F-G]

Ram Jawaya Kapur v. State of Punjab AIR 1955 SC549 : [1955] SCR 225; Kesavananda Bharti v. State ofEKerala AIR 1973 SC 1461 : [1973] Suppl. SCR 1 –referred to.

Article 121 & Article 122 of the Constitution of India:

11.1 Although, heading of Article 122 reads ‘Courts not toenquire into proceedings of the Parliament’ but substantiveFprovision of Constitution, as contained in sub-clause (1) of Article122 debars the Court from questioning the validity of anyparliamentary proceeding on the ground of any alleged irregularityor procedure. The embargo on the Court to question theproceeding is thus limited on the aforesaid ground alone. ThereGis no total prohibition from examining the validity of the proceedingif the proceedings are clearly in breach of fundamental rights orother constitutional provisions. On the strength of Article 122, itcannot be contended that Parliamentary Standing CommitteeReports can neither be admitted in evidence in Court nor thesaid reports can be utilised for any purpose. [Paras 125, 128][241-HB-C; 242-D]

11.2 The Constitution of India empowers this Court inexercise of judicial review to annul the legislation of Parliamentif it breaches the fundamental rights, guaranteed under Part IIIof the Constitution. Thus, the privileges which are enjoyed bythe Indian Legislature have to be considered in light of theprovisions of the Indian Constitution. These are the clearexceptions to the parliamentary privileges, as applicable in Houseof Commons on the strength of Article IX of Bill of Rights, 1688.[Para 126][241-H; 242-A]

Comments on reports of parliamentary committee whetherbreach of privilege:

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

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

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

13.4 In the instant case, the respondents contended that inthe event, they raise objections regarding ParliamentaryCommittee Report which has adversely commented on their rolethey shall be liable to be proceeded for committing contempt ofthe House, hence, this Court may neither permit theParliamentary Committee Report to be taken in evidence nor

Aallow the petitioners to rely on the report. No party is precludedin making fair comments on the Parliamentary Committee Reportwhich comments remain within the bounds of fair commentsand does not transgress the limits prescribed for fair comments.The Parliamentary Committee Reports when published, the pressare entitled to make fair comments. There is no reason prohibitingBthe parties who were referred to in the Parliamentary CommitteeReport to make such fair comments or criticism of the Report aspermissible under law without breach of privilege. [Para 143][248-B-D]Romesh Thappar v. The State of Madras [1950] SCRC594; Bennett Coleman & Co. and Ors. v. Union of India(UOI) and Ors. AIR 1973 SC 106 : [1973] 2 SCR 757;M.S.M. Sharma v. Sri Krishna Sinha and others AIR1959 SC 395 : [1959] Suppl. SCR 806; SpecialReference No.1 of 1964 [1965] 1 SCR 413 – referredDto.Wason v. Walter 1869 QB Vol. 4 p. 73; Adam v. Ward1917 AC 309; Pepper v. Hart (House of Lords) 1993AC 593; R v. Murphy 1986 (5) NSWLR 18, Hunt, J.;Burdett v. Abbot (1811) 104 ER 559, 561– referred to.

EThe Law, Privileges, Proceedings and Usage ofParliament by Erskine May (Lexis Nexis, 24[th] edn.,2011) – referred to.

Adjudication in courts and Parliamentary CommitteeReportF

14.1 ‘Adjudication’ is the power of Court to decide andpronounce judgment and carry it into effect between the personsand parties who bring cause before it for decision. Both forcivil and criminal cases people look forward to Courts for justice.To decide controversy between its subject had always beenGtreated as part of sovereign functions. Constitutional lawdevelopments emphasised separation of powers of Governmentalfunctions for protecting rights and liberties of people. [Para144][248-E-F]

14.2 In our Constitution although there is no strict

separation of powers of the three branches that is Legislature,Judicature and Executive but Constitutional provisions entrustseparate functions of each organ with clarity which makes it clearthat our Constitution does not contemplate assumption by oneorgan function which belongs to another organ of the State. [Para146][249-B]

14.3 Adjudication of rights of the people is function notentrusted to the Legislature of the country. Apart from legislationour Parliament has become multi-functional institution performingvarious roles, namely, inquisitorial, financial and administrativesurveillance, grievance redressal and developmental. Parliament,however, is not vested with any adjudicatory jurisdiction whichbelongs to judicature under the Constitutional Scheme. [Para147][250-D]

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

14.5 The apprehension of the respondents that their caseshall be prejudiced if this Court accepts the ParliamentaryCommittee Report in evidence, is misplaced. By acceptance of aParliamentary Committee Report in evidence does not mean thatfacts stated in the Report stand proved. When issues, facts comebefore Court of law for adjudication, the Court is to decide theissues on the basis of evidence and materials brought before itand in which adjudication Parliamentary Committee Report mayonly be one of the materials, what weight has to be given to oneor other evidence is the adjudicatory function of the Court whichmay differ from case to case. The Reports cannot be treated asconclusive or binding of what has been concluded in the Report.When adjudication of any claim fastening any civil or criminalliability on an individual is up in Court of law, it is open for aparty to rely on all evidences and materials which is in its powerand Court has to decide the issues on consideration of entirematerial brought before it. When the Parliamentary CommitteeReport is not adjudication of any civil or criminal liability of theprivate respondents, their fear that acceptance of report shall

ABC

DEFGH

Aprejudice their case is unfounded. Thus, by acceptingParliamentary Committee Report on the record in this case andconsidering the Report by this Court, the respondents’ right todispel conclusions and findings in the Report are not taken awayand they are free to prove their case in accordance with law. [Para150][251-D-H]

I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu (2007)2 SCC 1 : [2007] 1 SCR 706; State of Karnataka v.Union of India (1977) 4 SCC 608 : [1978] 2 SCR 1–referred to.

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

KALPANA MEHTA v. UNION OF INDIA

[2018] 4 S.C.R.

[2007] 1 SCR 706referred toPara 146[1978] 2 SCR 1referred toPara 147

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.558 of 2012.

Under Article 32 of the Constitution of India.

WITH

W. P. (C) No. 921 of 2013.

K. K. Venugopal, AG, Ms. Pinky Anand, ASG, Colin Gonsalves,Anand Grover, Harish N. Salve, Gourab Banerji, Shyam Divan, Sr. Advs.,Ms. Karuna Nundy, Ms. Megha Agarwal, Ms. Tanya Agarwal, Ms.Jyoti Mendiratta, Purushottam Sharma Tripathi, Mukesh Kumar Singh,Priyam Cherian, Loxraine Misquith, Vijayant Singh, Ms. Shrinidhi Rao,Ravi Chandra Prakash, Shantanu Jugtawat, L. Nidhiram Sharma, RupeshKumar, D.L. Chidanand, Ritesh Kumar, Wasim A. Qadri, Ms. ShraddhaDeshmukh, Ms. Saudamini Sharma, Gurmeet Singh Makker, Sumit, RishiKant Singh, Ms. N. Annapoorani, Ms. Hemantika Wahi, Ms. Jesal Wahi,Ms. Shodhika Sharma, R.N. Karanjawala, Mrs. Nandini Gore, Ms.Debmalya Banerjee, Ms. Tahira Karanjawala, Ms. Trishala Kulkarnil,Mohit Mudgal, Ms. Natasha Sehrawat, Ms. Gayatri Gosswami, ManishSharma, Kartik Bhatnagar, Karan Lahiri, Aviral Kapoor, Mrs. ManikKaranjawala (for M/s. Karanjawala & Co.), Jaya Krishnan Kumar, RikuSarma, Ms. Vartika Sahay, Ms. Krishna Sarma, Dav. Ms. Manisha Singh,Navnit Kumar, (for M/s. Corporate Law Group), Ms. C. K. Sucharita,S. Udaya Kumar Sagar, Mrityunjai Singh, M/s. Parekh & Co., GunturPrabhakar, Ms. Prerna Singh, Advs. for the appearing parties.

The Judgments of the Court were delivered by

DIPAK MISRA, CJI.[For himself and A.M. Khanwilkar, J.]

S. No. Heading Page No. A.Introduction3B. The factual background 4

* Ed. note: The pages mentioned in the index above giving the scheme of the judgmentdenotes the page number of the original judgment.

B.1The Reference6C. Contentions of the petitioners 8 D. Contentions of the respondents 12 E. Supremacy of the Constitution 14 BF. Constitutional limitations upon the 17 legislatureG. Doctrine of separation of powers 21 H. Power of judicial review 28 CI. Interpretation of the Constitution – The 34 nature of duty cast upon this CourtI.1 Interpretation of fundamental 40 rights I.2 Interpretation of other 42 Dconstitutional provisions J. perspective on the role of Parliamentary 48 Committees K. International position of Parliamentary 54 Committees K.1 Parliamentary Committees in 54 EEnglandK.2 Parliamentary Committees in 55 United States of America K.3 Parliamentary Committees in 58 Canada FK.4 Parliamentary Committees in 59 AustraliaL. Parliamentary Committees in India 60 L.1 Rules of Procedure and Conduct 65 of Business in Lok SabhaGM. Parliamentary privilege 71 M.1 Parliamentary privilege under 72 the Indian ConstitutionM.2 Judicial review of parliamentary 81 proceedings and its privilege

KALPANA MEHTA v. UNION OF INDIA[DIPAK MISRA, CJI]

AN. Reliance on parliamentary proceedings as 91 external aids O. Section 57(4) of the Indian Evidence Act 101 P. The decisions in which parliamentary standing 106 committee report/s have been referred toBQ. Conclusions 113

A. Introduction

In parliamentary democracy where human rights are placed ona high pedestal and rights-oriented Constitution is sought to beCinterpreted, it becomes the obligation on the part of the ConstitutionalCourts to strike balance between emphatic hermeneutics on progressiveperception of the provisions of the Constitution on the one hand and theself-imposed judicial restraint founded on self-discipline on the other hand,regard being had to the nature and character of the article that falls forDinterpretation and its constitutional vision and purpose. The Courts neverallow constitutional provision to be narrowly construed keeping in viewthe principle that the Constitution is living document and organic whichhas the innate potentiality to take many concept within its fold. TheCourts, being alive to their constitutional sensibility, do possess aprogressive outlook having telescopic view of the growing jurisprudence.ENonetheless, occasions do arise where the constitutional consciousnessis invoked to remind the Court that it should not be totally oblivious of theidea, being the final arbiter of the Constitution, to strike the requisitebalance whenever there is necessity, for the founding fathers had wiselyconceived the same in various articles of the grand fundamental document.FIn the present case, this delicate balance is the cardinal issue, as it seemsto 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 dealtwith by us is centered on the issue as to whether Parliamentary StandingCommittee (PSC) report can be placed reliance upon for adjudication ofa fact in issue and also for what other purposes it can be taken aid of.GThat apart, to arrive at the ultimate conclusion, we will be required tonavigate and steer through certain foundational fundamentals which takewithin its ambit the supremacy of the Constitution, constitutionallimitations, separation of powers, power of judicial review andself-imposed restraint, interpretation of constitutional provisions in many

Aa sphere, the duty of parliamentary committee in various democraciesand 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 BenchBthat was hearing the instant Writ Petitions had focussed around thejustifiability of the action taken by the Drugs Controller General of Indiaand the Indian Council of Medical Research (ICMR) pertaining to theapproval of vaccine, namely, Human Papilloma Virus (HPV)manufactured by the Respondent No. 7, M/s. GlaxoSmithKline AsiaCPvt. Ltd., and the Respondent No. 8, MSD Pharmaceuticals PrivateLimited, for preventing cervical cancer in women and the experimentationof the vaccine was done as an immunisation by the Governments ofGujarat and Andhra Pradesh (before bifurcation, the State of AndhraPradesh, eventually the State of Andhra Pradesh and the State ofTelangana) with the charity provided by the Respondent No. 6, namely,DPATH International. Apart from the aforesaid issue, the grievance withregard to the untimely death of certain persons and the grant ofcompensation on the foundation that there had been experiment of thedrugs on young girls who had not reached the age of majority withoutthe consent of their parents/guardians was also highlighted. Be it stated,Eit was also projected that women, though being fully informed, hadbecome victims of the said vaccination. In essence, the submissionswere advanced pertaining to the hazards of the vaccination and obtainingof consent without making the persons aware of the possible after effectsand the consequences of the administration of such vaccine. The two-Judge Bench had passed certain orders from time to time with whichFwe are not presently concerned.

3. In the course of hearing before the two-Judge Bench, learnedcounsel for the writ petitioners had invited the attention of the Bench toa report of the Parliamentary Standing Committee (PSC) and the Courthad directed the Governments to file affidavits regarding the steps takenGkeeping in view the various instructions given from time to time includingwhat has been stated in the report of the PSC. Certain affidavits werefiled by the respondents stating about the safety of the vaccination andthe steps taken to avoid any kind of hazard or jeopardy. That apart, theallegations made in the writ petitions were also controverted.

B.1 The Reference

4. When the matter stood thus, learned senior counsel for therespondent No. 8, MSD Pharmaceuticals Pvt. Ltd., and learnedAdditional Solicitor General appearing for the Union of India submittedthat this Court, while exercising the power of judicial review or itsexpansive jurisdiction under Article 32 of the Constitution of India dealingwith public interest litigation, cannot advert to the report of the PSC andon that basis, exercise the power of issue of writ in the nature ofmandamus and issue directions. The assistance of learned AttorneyGeneral was also sought keeping in view the gravity of the issue involved.After hearing the matter, the two-Judge Bench in Kalpana Mehta andothers v. Union of India and others[1] thought it appropriate to refer itto Constitution Bench under Article 145(3) of the Constitution and inthat regard, the Division Bench expressed thus:-“72.The controversy has to be seen from the perspective of judicialreview. The basic principle of judicial review is to ascertain thepropriety of the decision making process on the parameters ofreasonableness and propriety of the executive decisions. We arenot discussing about the parameters pertaining to the challenge ofamendments to the Constitution or the constitutionality of statute.When writ of mandamus is sought on the foundation of factualscore, the Court is required to address the facts asserted and theaverments made and what has been stated in oppugnation. Oncethe Court is asked to look at the report, the same can be challengedby the other side, for it cannot be accepted without affording anopportunity of being heard to the Respondents. The invitation tocontest Parliamentary Standing Committee report is likely todisturb the delicate balance that the Constitution provides betweenthe constitutional institutions. If the Court allows contest andadjudicates on the report, it may run counter to the spirit of privilegeof Parliament which the Constitution protects.

73.As advised at present, we are prima facie of the view that theParliamentary Standing Committee report may not be tenderedas document to augment the stance on the factual score that aparticular activity is unacceptable or erroneous. However, regardbeing had to the substantial question of law relating to interpretationof the Constitution involved, we think it appropriate that the issue 1 (2017) 7 SCC 307

Abe referred to the Constitution Bench under Article 145(3) of theConstitution.”

5. Thereafter, the two-Judge Bench framed the following questionsfor the purpose of reference to the Constitution Bench:-

“73.1. (i) Whether in litigation filed before this Court either underBArticle 32 or Article 136 of the Constitution of India, the Courtcan refer to and place reliance upon the report of the ParliamentaryStanding Committee?

73.2. (ii) Whether such Report can be looked at for the purposeof reference and, if so, can there be restrictions for the purposeCof reference regard being had to the concept of parliamentaryprivilege and the delicate balance between the constitutionalinstitutions that Articles 105, 121 and 122 of the Constitutionconceive?”

Because of the aforesaid reference, the matter has been placedDbefore us.

C. Contentions of the petitioners

6. At the very outset, it is essential to state that the argument hasbeen advanced by the learned counsel appearing for the petitioners thatthe lis raised neither relates to parliamentary privileges as set out inEArticle 105 of the Constitution nor does it pertain to the concept ofseparation of powers nor does it require any adjudication relating to theissue of mandamus for the enforcement of the recommendations of thePSC report. What is suggested is that the Court should not decide thecontroversy as per the facts stated in the report of the PSC treating it toFbe conclusive; rather the Court should take judicial notice of the same asprovided under Section 57(4) of the Evidence Act. It is also urged thatthe Court has the jurisdiction under Article 32 of the Constitution toconduct an independent inquiry being assisted by the CourtCommissioners and also give direction for production of the documentsfrom the executive. It is put forth in simplest terms that the petitionersGare entitled to bring the facts stated in the report to the notice of theCourt and persuade the Court to analyse the said facts and express anopinion at variance with the report, for the proceedings in the Court areindependent of the PSC report which only has persuasive value.Emphasising the concept of “judicial notice”, it is propounded that theHscope of judicial review does not rest on narrow spectrum and the

Court under the Constitution is within its rights to draw factual and legalconclusions on the basis of wide spectrum of inputs and materials includingwhat has been stated in the PSC report.

7. The aforesaid submission, as is noticeable, intends to conveythat no constitutional debate should be raised with regard to reliance onthe report of PSC and the Court should decide without reference to theconcepts of parliamentary privilege, separation of powers and comity ofinstitutions. The argument, in entirety, put forth by the petitioners is notfounded on the said bedrock inasmuch as Mr. Colin Gonsalves and Mr.Anand Grover, learned senior counsel appearing for the petitioners, haveargued that the Constitutional Court in exercise of the power of judicialreview can take note of at the report of the PSC and also rely upon thesaid report within the constitutional parameters and the proposition doesnot invite any constitutional discordance. It is further contended that theconcept of parliamentary privilege is enshrined under Article 105 of theConstitution which guarantees freedom of speech within the House duringthe course of the proceedings of the House and the said freedom hasbeen conferred to ensure that the members of Parliament expressthemselves freely in Parliament without fear of any impediment of invitingany civil or criminal proceedings. The initial part of clause (2) of Article105 confers, inter alia, immunity to the members of Parliament fromcivil and criminal proceedings before any court in respect of ‘anythingsaid’ or ‘any vote given’ by members of Parliament in the Parliament orany Committee thereof.

8. It is argued that this being the position, the factual score of theinstant case does not invite the wrath of violation of parliamentary privilegewhich Article 105 seeks to protect. It is because the limited issue thatemerges in the present case is to see the Parliamentary StandingCommittee reports. Thus, looking at the report for arriving at the truthby the Court in its expansive jurisdiction under Article 32 of theConstitution remotely touches the concept of privilege under Article 105of the Constitution. It is further canvassed that the facts that have beenarrived at by the Parliamentary Committee are of immense assistancefor the adjudication of the controversy in question and in such situation,it is crystal clear that the purpose of the petitioners is not to file civil orcriminal case against any member of the Parliament or any member ofthe Standing Committee. Therefore, the violation of parliamentaryprivilege does not arise.

A9. Learned counsel for the petitioners would contend that thisCourt is neither called upon to comment expressly or otherwise on thereport nor writ of mandamus has been sought for enforcement of therecommendations in the report. It is brought on record so that the Courtcan look at the facts stated therein and arrive at just conclusion insupport of other facts.B

D. Contentions of the respondents

10. Both the facets of the arguments advanced by the learnedcounsel appearing for the petitioners have been seriously opposed byMr. K.K. Venugopal, learned Attorney General for India, Mr. Harish N.CSalve, Mr. Gourab Banerji and Mr. Shyam Divan, learned senior counselappearing for the contesting respondents. Their basic propositions aregrounded, first on constitutional provisions which prescribe the privilegeof the Parliament and how the report of PSC is not amenable to contestand the limited reliance that has been placed by this Court on the reportof PSC or the speech of Minister on the floor of the legislature only toDunderstand the provisions of statute in certain context and second, thelimited interpretation that is required to be placed on the words “judicialnotice” as used in Section 57(4) of the Evidence Act regard being had tothe context. It is urged by them that allowing contest and criticism of thereport would definitely create stir in the constitutional balance.E11. It is also highlighted that in public interest litigation, the Courthas relaxed the principle of locus standi, encouraged epistolaryjurisdiction, treated the petitioner as relator, required the parties oncertain occasions not to take an adversarial position and also not allowedtechnicalities to create any kind of impediment in the dispensation ofFjustice but the said category of cases cannot be put on high pedestal tocreate concavity in the federal structure of the Constitution or allow toplace different kind of interpretation on constitutional provision whichwill usher in crack in the healthy spirit of the Constitution.

12. We shall refer to the arguments and the authorities cited byGboth sides in the course of our deliberation. Suffice it to mention, thefundamental analysis has to be done on the base of the constitutionalprovisions, the constitutional values and the precedents. To address theissue singularly from the prism of Section 57(4) of the Evidence Act, weare afraid, will tantamount to over simplification of the issue. Therefore,the said aspect shall be addressed to at the appropriate stage.

E. Supremacy of the Constitution

13. The Constitution of India is the supreme fundamental law andall laws have to be in consonance or in accord with the Constitution. Theconstitutional provisions postulate the conditions for the functioning ofthe legislature and the executive and prescribe that the Supreme Courtis the final interpreter of the Constitution. All statutory laws are requiredto conform to the fundamental law, that is, the Constitution. Thefunctionaries of the three wings, namely, the legislature, the executiveand the judiciary, as has been stated in His Holiness KesavanandaBharati Sripadagalvaru v. State of Kerala and another[2], derive theirauthority and jurisdiction from the Constitution. The Parliament has theexclusive authority to make laws and that is how the supremacy of theParliament in the field of legislation is understood. There is distinctionbetween parliamentary supremacy in the field of legislation andconstitutional supremacy. The Constitution is the fundamental documentthat provides for constitutionalism, constitutional governance and alsosets out morality, norms and values which are inhered in various articlesand sometimes are decipherable from the constitutional silence. Itsinherent dynamism makes it organic and, therefore, the concept of“constitutional sovereignty” is sacrosanct. It is extremely sacred and, asstated earlier, the authorities get their powers from the Constitution. It is“the source”. Sometimes, the constitutional sovereignty is described asthe supremacy of the Constitution.

14. In State of Rajasthan and others v. Union of India andothers[3],Bhagwati, J. (as his Lordship then was), in his concurring opinion,stated that the Constitution is suprema lex, the paramount law of theland and there is no department or branch of government above or beyondit. The learned Judge, proceeding further, observed that every organ ofthe government, be it the executive or the legislature or the judiciary,derives its authority from the Constitution and it has to act within thelimits of its authority. Observing about the power of this Court, he ruledthat this Court is the ultimate interpreter of the Constitution and to thisCourt is assigned the delicate task of determining what is the powerconferred on each branch of the Government, whether it is limited, andif so, what are the limits and whether any action of that branch

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

3 (1977) 3 SCC 592

BCDE

Atransgresses such limits. He further observed that it is for this Court touphold the constitutional values and to enforce the constitutionallimitations, for it is the essence of the rule of law. Elaborating the saidconcept, Sabharwal, C.J. in I.R. Coelho (Dead) by LRs. v. State ofT.N.[4], speaking for the nine-Judge Bench, held that the supremacy ofthe Constitution embodies that constitutional bodies are required to complyBwith the provisions of the Constitution. It also mandates mechanismfor testing the validity of legislative acts through an independent organ,viz., the judiciary.

15. Be it noted, in the aforesaid case, distinction was drawnbetween parliamentary and constitutional sovereignty. Speaking on theCsame, the Bench opined that our Constitution was framed by ConstituentAssembly which was not Parliament. It is in the exercise of law-makingpower by the Constituent Assembly that we have controlled Constitution.Articles 14, 19 and 21 represent the foundational values which form thebedrock of the rule of law. These are the principles of constitutionalityDwhich form the basis of judicial review apart from the rule of law andseparation of powers.

16. Thus, the three wings of the State are bound by the doctrineof constitutional sovereignty and all are governed by the framework ofthe Constitution. The Constitution does not accept transgression ofEconstitutional 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 legislatureis bound by the concept of constitutional limitation. It is necessary toappreciate what precisely is meant by constitutional limitation. In StateFof West Bengal v. Anwar Ali Sarkar[5], this Court, in the context offreedom of speech and expression conferred by Article 19(1)(a) of theConstitution, applied the principle of constitutional limitation and opinedthat where law purports to authorise the imposition of restrictions on afundamental right in language wide enough to cover restrictions bothGwithin and without the limits of constitutionally permissible legislativeaction affecting such right, it is not possible to uphold it even so far as itmay be applied within the constitutional limits, as it is not severable. Solong as the possibility of its being applied for purposes not sanctioned by

4 (2007) 2 SCC 1 5 1952 SCR 284 : AIR 1952 SC 75H

5 1952 SCR 284 : AIR 1952 SC 75

the Constitution cannot be ruled out, it must be held to be whollyunconstitutional and void. The emphasis was laid on constitutionallimitation. In K.C. Gajapati Narayan Deo v. State of Orissa[6], the Courtadverted to the real purpose of legislation and colourable legislation and,in that context, expressed that when scrutiny is made, it may appearthat the real purpose of legislation is different from what appears onthe face of it. It would be colourable legislation only if it is shown thatthe real object is different as consequence of which it lies within theexclusive field of another legislature.

18. Dwelling upon the legal effect of constitutional limitation oflegislative power with respect to law made in derogation of thatlimitation, the Court in Deep Chand v. State of Uttar Pradesh andothers[7] reproduced passage from Cooley’s book on “ConstitutionalLimitation” (Eighth Edition, Volume I) which is to the following effect:-

“From what examination has been given to this subject, it appearsthat whether statute is constitutional or not is always questionof power; that is, question whether the legislature in the particularcase, in respect to the subject-matter of the act, the manner inwhich its object is to be accomplished, and the mode of enactingit, has kept within the constitutional limits and observed theconstitutional conditions.”

Thereafter, the Constitution Bench referred to the observationsof the Judicial Committee in Queenv.Burah[8] wherein it was observedthat whenever question as to whether the legislature has exceeded itsprescribed limits arises, the courts of justice determine the said questionby looking into the terms of the instrument which created the legislativepowers affirmatively and which restricted the said powers negatively.The Constitution Bench also referred to the observations of the JudicialCommittee in Attorney-General for Ontario v. Attorney-General forCanada[9] which were later on lucidly explained by Mukherjea, J., (as hethen was) in K.C. Gajapati Narayan Deo(supra) to the effect that ifthe Constitution distributes the legislative powers amongst different bodieswhich have to act within their respective spheres marked out by specificlegislative entries or if there are limitations on the legislature in the form

6 1954 SCR 1 : AIR 1953 SC 375

7 1959 Supp. (2) SCR 8 : AIR 1959 SC 648 8 (1878) LR 5 I.A. 178

9 (1912) AC 571

Aof fundamental rights, the question will arise as to whether, in particularcase, the legislature has transgressed the limits of its constitutional powerin respect of the subject matter of the statute or in the method of makingit.

19. Recently, in Binoy Viswam v. Union of India and others[10]Bthis Court, while dealing with the exercise of sovereign power of theCentre and the States in the context of levy of taxes, duties and fees,observed that the said exercise of power is subject to constitutionallimitation. It is imperative to remember that our Constitution has, withthe avowed purpose, laid down the powers exercised by the three wingsof the State and in exercise of the said power, the authorities areCconstitutionally required to act within their spheres having mutualinstitutional respect to realize the constitutional goal and to see that thereis no constitutional transgression. The grammar of constitutional limitationhas to be perceived as the constitutional fulcrum where control operatesamong the several power holders, that is, legislature, executive andDjudiciary. It is because the Constitution has created the three organs ofthe State.

20. Under the Constitution, the Parliament and the State legislatureshave been entrusted with the power of law making. Needless to say, ifthere is transgression of the constitutional limitation, the law made bythe legislature has to be declared ultra vires by the Constitutional Courts.EThat power has been conferred on the Courts under the Constitutionand that is why, we have used the terminology “constitutional sovereignty”.It is an accepted principle that the rule of law constitutes the core of ourConstitution and it is the essence of the rule of law that the exercise ofthe power by the State, whether it be the legislature or the executive orFany other authority, should be within the constitutional limitations.

G. Doctrine of separation of powers

21. Having stated about constitutional sovereignty and constitutionallimitation, we may presently address the issue as to how the Constitutionof India has been understood in the context of division of functions of

Gthe State. In Smt. Indira Nehru Gandhi v. Shri Raj Narain andanother[11], 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), 12[th] Series, 1960. We think it appropriate toreproduce the paragraph in entirety:-

10 (2017) 7 SCC 59H 11 1975 Supp. SCC 1

“The Constitution divides the functions of the Union into the threecategories of executive, legislative and judicial functions followingthe pattern of the British North America Act and theCommonwealth of Australia Act. Though this division of functionsis not based on the doctrine of separation of powers as in theUnited States yet there is broad division of functions betweenthe appropriate authorities so that, for example, the legislaturewill not be entitled to arrogate to itself the judicial function ofadjudication. ‘The Indian Constitution has not indeed recognisedthe doctrine of separation of powers in its absolute rigidity but thefunctions of the different parts or branches of the Governmenthave been sufficiently differentiated and consequently it can verywell be said that our Constitution does not contemplate assumption,by one organ or part of the State, of functions that essentiallybelong to another.’ (See: Rai Saheb Ram Jawaya Kapur v. Stateof Punjab[12]). This will no doubt strike one accustomed to theestablished supremacy of Parliament in England as unusual. Inthe course of its historical development Parliament has performedand in way still performs judicial functions. Indeed the expression‘Court of Parliament’ is not unfamiliar to English lawyers.However, differentiation of the functions of different departmentsis an invariable feature of all written Constitutions. The verypurpose of written Constitution is the demarcation of the powersof different departments of Government so that the exercise oftheir powers may be limited to their particular fields. In countriesgoverned by written Constitution, as India is, the supreme authorityis not Parliament but the Constitution. Contrasting it with thesupremacy of Parliament, Dicey has characterised it as the”supremacy of the Constitution.

[Emphasis added]

22. The doctrine of separation of powers has become concrete inthe Indian context when the Court in Kesavananda Bharati’s casetreated the same as basic feature of the Constitution of India. In Stateof Himachal Pradesh v. Parent of Student of Medical College,Simla and others[13],this Court ruled that it is entirely matter for the

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

13 (1985) 3 SCC 169

Aexecutive branch of the Government to decide whether or not to introduceany particular legislation. Of course, any member of the legislature canalso introduce legislation but the Court certainly cannot mandate theexecutive or any member of the legislature to initiate legislation,howsoever necessary or desirable the Court may consider it to be. Thatis not matter which is within the sphere of the functions and dutiesBallocated to the judiciary under the Constitution. The Court furtherobserved that it cannot usurp the functions assigned to the legislatureunder the Constitution and it cannot even indirectly require the executiveto introduce particular legislation or the legislature to pass it or assumeto itself supervisory role over the law-making activities of the executiveCand the legislature. In State of Tamil Nadu v. State of Keralaandanother[14], this Court, laying down the principle of 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 theConstitution of India. The doctrine of separation of powers informs theIndian constitutional structure and it is an essential constituent of theDrule of law.23. In Bhim Singh v. Union of India and others[15], the Court,for understanding the concept of separation of powers, observed thattwo aspects must be borne in mind. One, that separation of powers isan essential feature of the Constitution and secondly, that in modernEgovernance, strict separation is neither possible nor desirable.Nevertheless, till this principle of accountability is preserved, there is noviolation of separation of powers and the same is founded on keen scrutinyof the constitutional text. The Constitution does not strictly prohibit overlapof functions and, in fact, provides for some overlap in parliamentaryFdemocracy. What it prohibits is such exercise of function of the otherbranch which results in wresting away of the regime of constitutionalaccountability.

24. In Mansukhlal Vithaldas Chauhan v. State of Gujarat[16],Federation of Railway Officers Association and others v. Union ofGIndia[17] and State of Maharashtra and others v. Raghunath GajananWaingankar[18], the Court applied the principle of restraint, acknowledging

14 (2014) 12 SCC 696 15 (2010) 5 SCC 538 16 AIR 1997 SC 3400 : (1997) 7 SCC 622 17 (2003) 4 SCC 289 :AIR 2003 SC 1344H 18 AIR 2004 SC 4264

and respecting the constitutional limitation upon the judiciary to recognizethe doctrine of separation of powers and restrain itself from enteringinto the domain of the legislature. Elaborating further, this Court inDivisional Manager, Aravali Golf Club and another v. ChanderHass and another[19]observed that under our constitutional scheme, theLegislature, Executive and Judiciary have their own broad spheres ofoperation and each organ must have respect for the others and must notencroach into each others’ domain, otherwise the delicate balance in theConstitution will be upset, and there will be reaction.

25. In Asif Hameed and others v. State of Jammu and Kashmirand others[20],the Court observed that the Constitution makers havemeticulously defined the functions of various organs of the State. TheLegislature, Executive and Judiciary have to function within their ownspheres demarcated under the Constitution. It further ruled that theConstitution trusts the judgment of these organs to function and exercisetheir discretion by strictly following the procedure prescribed therein.The functioning of democracy depends upon the strength andindependence of each of its organs. The Legislature and the Executive,the two facets of people’s will, have all the powers including that offinance. The judiciary has no power over the sword or the purse.Nonetheless, it has power to ensure that the aforesaid two main organsof the State function within the constitutional limits. It is the sentinel of

democracy. Judicial review is powerful weapon to restrainunconstitutional exercise of power by the legislature and the executive.The expanding horizon of judicial review has taken in its fold the conceptof social and economic justice. The exercise of powers by the legislatureand executive is subject to judicial restraint and the only check on theexercise of power by the judiciary is the self imposed discipline of judicialrestraint.

26. In I.R. Coelho (supra), adverting to the issue of separation ofpowers, the nine-Judge Bench referred to the basic structure doctrinelaid down in Kesavananda Bharati (supra) by the majority and thereiteration thereof in Indira Nehru Gandhi (supra) and reproduced apassage from Alexander Hamilton’s book “The Federalist” and eventuallyheld:-

19 (2008) 1 SCC 683 20 AIR 1989 SC 1899

A“67. The Supreme Court has long held that the separation ofpowers is part of the basic structure of the Constitution. Evenbefore the basic structure doctrine became part of constitutionallaw, the importance of the separation of powers on our system ofgovernance was recognised by this Court in Special ReferenceNo. 1 of 1964.”B

27. From the above authorities, it is quite vivid that the concept ofconstitutional limitation is 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 involvedemocracy, the essential morality that flows from the Constitution, interestCof the citizens in certain spheres like environment, sustenance of socialinterest, etc. and empowering the populace with the right to informationor right to know in matters relating to candidates contesting election.There can be many an example where this Court has issued directionsto the executive and also formulated guidelines for facilitation and inDfurtherance of fundamental rights and sometimes for the actualizationand fructification of statutory rights.

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 ConstitutionEof India. The Court has the adjudicating authority to scrutinize the limitsof the power and transgression of such limits. The nature and scope ofjudicial review has been succinctly stated in Union of India and anotherv. Raghubir Singh (Dead) by LRs. etc.[21] by R.S. Pathak, C.J. thus:-

“….. The range of judicial review recognised in the superiorFjudiciary of India is perhaps the widest and the most extensiveknown to the world of law. … With this impressive expanse ofjudicial power, it is only right that the superior courts in India shouldbe conscious of the enormous responsibility which rest on them.This is specially true of the Supreme Court, for as the highestGCourt in the entire judicial system the law declared by it is, byArticle 141 of the Constitution, binding on all courts within theterritory of India.

And again:-

“Legal compulsions cannot be limited by existing legal propositions,because there will always be, beyond the frontiers of the existinglaw, new areas inviting judicial scrutiny and judicial choice-makingwhich could well affect the validity of existing legal dogma. Thesearch for solutions responsive to changed social era involves asearch not only among competing propositions of law, or competingversions of legal proposition, or the modalities of an indeterminacysuch as ‘fairness’ or ‘reasonableness’, but also among propositionsfrom outside the ruling law, corresponding to the empiricalknowledge or accepted values of present time and place, relevantto the dispensing of justice within the new parameters.”

The aforesaid two passages lay immense responsibility on theCourt pertaining to the exercise of the power keeping in view the acceptedvalues of the present. An organic instrument requires the Court to drawstrength from the spirit of the Constitution. The propelling element of theConstitution commands the realization of the values. The aspiringdynamism of the interpretative process also expects the same.

29. This Court has the constitutional power and the authority tointerpret the constitutional provisions as well as the statutory provisions.The conferment of the power of judicial review has great sanctity asthe Constitutional Court has the power to declare any law asunconstitutional if there is lack of competence of the legislature keepingin view the field of legislation as provided in the Constitution or if aprovision contravenes or runs counter to any of the fundamental rightsor any constitutional provision or if provision is manifestly arbitrary.30. When we speak about judicial review, it is also necessary tobe alive to the concept of judicial restraint. The duty of judicial reviewwhich the Constitution has bestowed upon the judiciary is not unfettered;it comes within the conception of judicial restraint. The principle of judicialrestraint requires that judges ought to decide cases while being withintheir defined limits of power. Judges are expected to interpret any lawor any provision of the Constitution as per the limits laid down by theConstitution.

31. In S.C. Chandra and others v. State of Jharkhand andothers[22], it has been ruled that the judiciary should exercise restraint andordinarily should not encroach into the legislative domain. In this regard, 22 (2007) 8 SCC 279

Aa reference to three-Judge Bench decision in Suresh Seth v. Commr.,Indore Municipal Corpn. and others[23] is quite instructive. In the saidcase, prayer was made before this Court to issue directions forappropriate amendment in the M.P. Municipal Corporation Act, 1956.Repelling the submission, the Court held that it is purely matter ofpolicy which is for the elected representatives of the people to decideBand no directions can be issued by the Court in this regard. The Courtfurther observed that this Court cannot issue directions to the legislatureto make any particular kind of enactment. In this context, the Court heldthat under our constitutional scheme, the Parliament and legislativeassemblies exercise sovereign power to enact law and no outside powerCor authority can issue direction to enact particular kind of legislation.While so holding, the Court referred to the decision in Supreme CourtEmployees’ Welfare Association v. Union of India and another[24]wherein it was held that no court can direct legislature to enact aparticular law and similarly when an executive authority exercises alegislative power by way of subordinate legislation pursuant to theDdelegated authority of legislature, such executive authority cannot beasked to enact law which it has been empowered to do under thedelegated authority.32. Recently, in Census Commissioner and others v. R.Krishnamurthy[25], the Court, after referring to Premium Granites andEanother v. State of T.N. and others[26], M.P. Oil Extraction and anotherv. State of M.P. and others[27], State of Madhya Pradesh v. NarmadaBachao Andolan and another[28]and State of Punjab and others v.Ram Lubhaya Bagga and others[29], held:-

“From the aforesaid pronouncement of law, it is clear as noon dayFthat it is not within the domain of the courts to embark upon anenquiry as to whether particular public policy is wise andacceptable or whether better policy could be evolved. The courtcan only interfere if the policy framed is absolutely capricious ornot informed by reasons or totally arbitrary and founded ipse dixit

23 (2005) 13 SCC 287 24 (1989) 4 SCC 187 25 (2015) 2 SCC 796 26 (1994) 2 SCC 691 27 (1997) 7 SCC 592 28 (2011) 7 SCC 639 29 (1998) 4 SCC 117H

offending the basic requirement of Article 14 of the Constitution.In certain matters, as often said, there can be opinions and opinionsbut the court is not expected to sit as an appellate authority on anopinion.”

33. At this juncture, we think it apt to clearly state that the judicialrestraint cannot and should not be such that it amounts to judicialabdication and judicial passivism. The Judiciary cannot abdicate the solemnduty which the Constitution has placed on its shoulders, i.e., to protectthe fundamental rights of the citizens guaranteed under Part III of theConstitution. The Constitutional Courts cannot sit in oblivion whenfundamental rights of individuals are at stake. Our Constitution hasconceived the Constitutional Courts to act as defenders against illegalintrusion of the fundamental rights of individuals. The Constitution, underits aegis, has armed the Constitutional Courts with wide powers whichthe Courts should exercise, without an iota of hesitation or apprehension,when the fundamental rights of individuals are in jeopardy. Elucidatingon the said aspect, this Court inVirendra Singh and others v. TheState of Uttar Pradesh[30]has observed:-

“32. We have upon us the whole armour of the Constitution andwalk from henceforth in its enlightened ways, wearing thebreastplate of its protecting provisions and flashing the flamingsword of its inspiration.”

34. While interpreting fundamental rights, the Constitutional Courtsshould remember that whenever an occasion arises, the Courts have toadopt liberal approach with the object to infuse lively spirit and vigourso that the fundamental rights do not suffer. When we say so, it may notbe understood that while interpreting fundamental rights, the ConstitutionalCourts should altogether depart from the doctrine of precedents but it isthe obligation of the Constitutional Courts to act as sentinel onthe quiviveto ardently guard the fundamental rights of individuals bestowedupon by the Constitution. The duty of this Court, in this context, has beenaptly described in the case of K.S. Srinivasan v. Union of India[31]wherein it was stated:-

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

30 AIR 1954 SC 447

31 AIR 1958 SC 419

A35. Such an approach applies with more zeal in case ofArticle 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 aprogressive attitude. This would be in consonance with the duty of thisBCourt under the Constitution, that is, to secure the inalienable fundamentalrights of individuals.

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

C36. Having stated about the supremacy of the Constitution andthe principles of constitutional limitation, separation of powers and thespheres of judicial review, it is necessary to dwell upon the concept ofconstitutional interpretation. In S.R. Bommai and others v. Union ofIndia and others[32], it has been said that for maintaining democraticprocess and to avoid political friction, it is necessary to direct the politicalDparties within the purview of the constitutional umbrella to strongly adhereto constitutional values. There is no denial of the fact that the judiciarytakes note of the obtaining empirical facts and the aspirations of thegeneration that are telescoped into the future. If constitutional provisionshave to be perceived from the prism of growth and development in theEcontext of time so as to actualize the social and political will of the peoplethat was put to in words, they have to be understood in their life andspirit with the further potentiality to change.37. five-Judge Bench in GVK Industries Limited and anotherv. Income Tax Officer and another[33] has lucidly expressed that ourFConstitution charges the various organs of the State with affirmativeresponsibilities of protecting the welfare and the security of the nation.Legislative powers are granted to enable the accomplishment of thegoals of the nation. The powers of judicial review are granted in order toensure that legislative and executive powers are used within the boundsspecified by the Constitution. The powers referred by the ConstitutionGand implied and borne by the constitutional text have to be perforceadmitted. Nevertheless, the very essence of constitutionalism is alsothat no organ of the State may arrogate to itself powers beyond what isspecified by the Constitution. Speaking on the duty of the judiciary, the 32 (1994) 3 SCC 1 33 (2011) 4 SCC 36H

Court has opined that judicial restraint is necessary in dealing with thepowers of another coordinate branch of the Government; but restraintcannot 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 considerationwould be the primary source for discerning the meanings that inhere inthe enactment. It has also been laid down that in the light of the seriousissues, it would always be prudent, as matter of constitutional necessity,to widen the search for the true meaning, purport and ambit of theprovision under consideration. No provision, and indeed no word orexpression, of the Constitution exists in isolation—they are necessarilyrelated to, transforming and, in turn, being transformed by other provisions,words and phrases in the Constitution. Therefore, the Court went on tosay:-

“38. Our Constitution is both long and also an intricate matrix ofmeanings, purposes and structures. It is only by locating particularconstitutional provision under consideration within thatconstitutional matrix could one hope to be able to discern its truemeaning, purport and ambit. As Prof. Laurence Tribe points out:

“[T]o understand the Constitution as legal text, it is essentialto recognize the … sort of text it is: constitutive text thatpurports, in the name of the people…, to bring into being anumber of distinct but inter-related institutions and practices,at once legal and political, and to define the rules governingthose institutions and practices.” (See Reflections on Free-Form Method in Constitutional Interpretation.[34])”

38. The Constitution being an organic document, its ongoinginterpretation is permissible. The supremacy of the Constitution isessential to bring social changes in the national polity evolved with thepassage of time. The interpretation of the Constitution is difficult task.While doing so, the Constitutional Courts are not only required to takeinto consideration their own experience over time, the international treatiesand covenants but also keep the doctrine of flexibility in mind. It hasbeen so stated in Union of India v. Naveen Jindal and another[35].InS.R. Bommai (supra) the Court ruled that correct interpretation in properperspective would be in the defence of democracy and in order to maintain

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

Athe democratic process on an even keel even in the face of possiblefriction, it is but the duty of the Court to interpret the Constitution tobring the political parties within the purview of the constitutionalparameters for accountability and to abide by the Constitution and thelaws for their strict adherence. With the passage of time, the interpretativeprocess has become expansive. It has been built brick by brick to broadenBthe sphere of rights and to assert the constitutional supremacy to meetthe legitimate expectations of the citizens. The words of the Constitutionhave been injected life to express connotative meaning.39. Recently, in K.S. Puttaswamy and another v. Union of Indiaand others[36], one of us (Dr. D.Y. Chandrachud, J.) has opined thatCconstitutional developments have taken place as the words of theConstitution have been interpreted to deal with new exigencies requiringan expansive reading of liberties and freedoms to preserve human rightsunder the Rule of Law. It has been further observed that theinterpretation of the Constitution cannot be frozen by its originalDunderstanding, for the Constitution has evolved and must continuouslyevolve to meet the aspirations and challenges of the present and thefuture. The duty of the Constitutional Courts to interpret the Constitutionopened the path for succeeding generations to meet the challenges. Beit stated, the Court was dealing with privacy as matter of fundamentalright.E

40. In Supreme Court Advocates-on-Record Association andothers v. Union of India[37], the Court exposited that the Constitutionhas not only to be read in the light of contemporary circumstances andvalues but also in such way that the circumstances and values of thepresent generation are given expression in its provisions. The Court hasFobserved that constitutional interpretation is as much process of creationas one of discovery. Thus viewed, the process of interpretation ought tomeet the values and aspirations of the present generation and it has twofacets, namely, process of creation and discovery. It has to be rememberedthat while interpreting constitutional provision, one has to be guided byGthe letter, spirit and purpose of the language employed therein and alsothe constitutional silences or abeyances that are discoverable. The scopeand discovery has connection with the theory of constitutionalimplication. Additionally, the interpretative process of provision of

36 (2017) 10 SCC 1 37 (1993) 4 SCC 441H

Constitution is also required to accentuate the purpose and convey themessage 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, weshall focus on the interpretative process adopted by this Court in respectof fundamental rights. In the initial years, after the Constitution cameinto force, the Court viewed each fundamental right as separate anddistinct. That apart, the rule of restrictive interpretation was applied.The contours were narrow and limited. It is noticeable from the decisionin A.K. Gopalan v. State of Madras[38]. The perception changed whenthe Court focussed on the actual impairment caused by the law ratherthan the literal validity of the law as has been observed in I.R. Coelho(supra). I.R. Coelho referred to Rustom Cavasjee Cooper v. Unionof India[39]and understood that the view rendered therein disapprovedthe view point in A.K. Gopalanand reflected upon the concept of impactdoctrine in Sakal Papers (P) Ltd. v. Union of India[40]. The Court,after referring to Sambhu Nath Sarkar v. State of West Bengal andothers[41], Haradhan Saha v. The State of West Bengal and others[42]and Khudiram Das v. State of West Bengal and others[43],reproduceda passage from Maneka Gandhi v. Union of India and another[44]which reads thus:-

“The law, must, therefore, now be taken to be well settled thatArticle 21 does not exclude Article 19 and that even if there is alaw prescribing procedure for depriving person of ‘personalliberty’ and there is consequently no infringement of thefundamental right conferred by Article 21, such law, insofar as itabridges or takes away any fundamental right under Article 19would have to meet the challenge of that article.”

42. The Court reproduced passage from the opinion expressedby Krishna Iyer, J. which stated that the proposition is indubitable thatArticle 21 does not, in given situation, exclude Article 19 if both therights are breached.

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

A43. In I.R. Coelho (supra), the Court clearly spelt out that post-Maneka Gandhi, it is clear that the development of fundamental rightshad been such that it no longer involves the interpretation of rights asisolated protections which directly arise but they collectively form acomprehensive test against the arbitrary exercise of powers in any areathat occurs as an inevitable consequence. The Court observed that theBprotection of fundamental rights has been considerably widened. In thatcontext, reference had been made to M. Nagaraj and others v. Unionof India and others[45] wherein it has been held that fundamental rightbecomes fundamental because it has foundational value. That apart,one has also to see the structure of the article in which the fundamentalCvalue is incorporated. Fundamental right is limitation on the power ofthe State. Constitution and, in particular, that of it which protects andwhich entrenches fundamental rights and freedoms to which all personsin the State are to be entitled is to be given generous and purposiveconstruction. The Court must interpret the Constitution in manner whichwould enable the citizens to enjoy the rights guaranteed by it in the fullestDmeasure.

I.2 Interpretation of other constitutional provisions

44. In this regard, we may note how the Constitution Bencheshave applied the principles of interpretation in relation to otherconstitutional provisions which are fundamental to constitutionalEgovernance and democracy. In B.R. Kapur v. State of T.N. andanother[46], while deciding writ of quo warranto, the majority ruled thatif non-legislator could be sworn in as the Chief Minister under Article164 of the Constitution, then he must satisfy the qualification ofmembership of legislator as postulated under Article 173. I.R. Coelho

F(supra), while deciding the doctrine of implied limitation and referring tovarious opinions stated in Kesavananda Bharati (supra) and MinervaMills Ltd. and others v. Union of India and others[47], ruled that theprinciple of implied limitation is attracted to the sphere of constitutionalinterpretation.

45. In Manoj Narula v. Union of India[48], the Court, whileGinterpreting Article 75(1) of the Constitution, opined that reading of impliedlimitation to the said provision would tantamount to prohibition or adding 45 (2006) 8 SCC 212 46 (2001) 7 SCC 231 47 (1980) 3 SCC 625 48 (2014) 9 SCC 1H

disqualification which is neither expressly stated nor impliedly discerniblefrom the provision. Eventually, the majority expressed that when there isno disqualification for person against whom charges have been framedin respect of heinous or serious offences or offences relating to corruptionto contest the election, it is difficult to read the prohibition into Article75(1) by interpretative process or, for that matter, into Article 164(1) tothe powers of the Prime Minister or the Chief Minister in such manner.That would come within the criterion of eligibility and would amount toprescribing an eligibility qualification and adding disqualification whichhas not been stipulated in the Constitution. In the absence of anyconstitutional prohibition or statutory embargo, such disqualification cannotbe 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 saidprinciple of implication is fundamentally founded on rational inference ofan idea from the words used in the text. The concept of legitimatededuction is always recognised. In Melbourne Corporation v.Commonwealth[49] , Dixon, J. opined that constitutional implication shouldbe based on considerations which are compelling. Mason, C.J., inAustralian Capital Television Pty. Limited and others and the Stateof New South Wales v. The Commonwealth of Australia and another[50][Political Advertisingcase], has ruled that there can be structuralimplications which are “logically or practically necessary for thepreservation of the integrity of that structure”. Any proposition that isarrived at taking this route of interpretation must find some resting pillaror strength on the basis of certain words in the text or the scheme of thetext. In the absence of the same, it may not be permissible for Court todeduce any proposition as that would defeat the legitimacy of reasoning.A proposition can be established by reading number of articlescohesively, for that will be in the domain of substantive legitimacy.Elaborating further, the Court proceeded to state that the said processhas its own limitation for the Court cannot rewrite constitutionalprovision. To justify the adoption of the said method of interpretation,there has to be constitutional foundation.

47. In Kuldip Nayar and others v. Union of India and others[51],a Constitution Bench, while interpreting Article 80 of the Constitution of

49 [1947] 74 CLR 31 (Aust)

50 [1992] 177 CLR 106 (Aust)

51 (2006) 7 SCC 1

AIndia, relied upon passage from G. Narayanaswami v. G.Pannerselvam and others[52]. The said authority clearly lays down thatCourts should interpret in broad and generous spirit the document whichcontains the fundamental law of the land. The Court observed that itmay be desirable to give broad and generous construction to theconstitutional provisions, but while doing so, the rule of “plain meaning”Bor “literal” interpretation, which remains “the primary rule”, has also tobe kept in mind. In the context of Article 80(4) of the Constitution in thecontext of “the representatives of each State”, the Court repelled theargument that it is inherent in the expression “representative” that he/she must first necessarily be an elector in the State. It ruled that theC“representative” of the State is the person chosen by the electors whocan be any person who, in the opinion of the electors, is fit to representthem.

48. The Court, in Union of India v. Sankalchand Himatlal Shethand another[53], ruled that it is to be remembered that when the CourtDinterprets constitutional provision, it breathes life into the inert wordsused in the founding document. The problem before the ConstitutionalCourt is not mere verbal problem. “Literalness”, observed Frankfurter,J., “may strangle meaning” and he went on to add in MassachusettsBonding & Insurance Co. v. United States[54] that “there is no surerway to misread document than to read it literally.” The Court cannotEinterpret provision of the Constitution by making “a fortress out of thedictionary”. The significance of constitutional problem is vital, notformal: it has to be gathered not simply by taking the words and adictionary, but by considering the purpose and intendment of the framersas gathered from the context and the setting in which the words occur.

FThe difficulty of gathering the true intent of the law giver from the wordsused in the statute was expressed by Holmes, J. in striking andepigrammatic fashion when he said: “Ideas are not often hard but thewords are the devil[55]” and this difficulty is all the greater when thewords to be construed occur in constitutional provision, for, as pointed

out by Cardozo, J., “the process of constitutional interpretation is in theGultimate analysis one of reading values into its clauses.”

52 (1972) 3 SCC 717 53 (1977) 4 SCC 193 54 352 U.S. 128 (1956)

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

49. In this backdrop, it is necessary to state that the Court has anenormous responsibility when it functions as the final arbiter of theinterpretation of the constitutional provision.

50. We have discussed the concepts of supremacy of theConstitution and constitutional limitation, separation of powers, the ambitand scope of judicial review, judicial restraint, the progressive methodadopted by the Court while interpreting fundamental rights and theexpansive conception of such inherent rights. We have also deliberatedupon the interpretation of other constitutional provisions that really donot touch the area of fundamental rights but are fundamental forconstitutional governance and the duty of the Court is not to transgressthe constitutional boundaries. We may immediately add that in the caseat hand, we are not concerned with the interpretation of such constitutionalprovisions which have impact on the fundamental rights of the citizens.We are concerned with the interpretation of certain provisions that relateto parliamentary privilege and what is protected by the Constitution incertain articles. This situation has emerged in the context of the Court’srole to rely upon the reports of Parliamentary Standing Committees inthe context of the constitutional provisions contained in Articles 105 and122.

J. perspective on the role of Parliamentary Committees

51. It is necessary to understand the role of the parliamentarystanding Committees or ad hoc committees. They are constituted withcertain purposes. The formation of committee has history. “Committeeshave been described as primary organizational device wherebylegislatures can accommodate an increase in the number of bills beingintroduced, while continuing to scrutinize legislation; handle the greatercomplexity and technical nature of bills under review without anexponential growth in size; develop “division of labours” among membersfor considering legislation....”[56].

52. Woodrow Wilson, the 28[th] President of the United States, wasquoted as saying in 1885 that “it is not far from the truth to say thatCongress in session is Congress on public exhibition, whilst Congress inits Committee rooms is Congress at work[57]”. This is because most of

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 FinalReport, (Baltimore, the Johns Hopkins University Press, 1981) p.69

ABC

Athe work of Congress was referred to committees for detailed review toinform debate on the floor of the House.

53. Former U.S. Representative James Shannon commentedduring 1995 conference on the role of committees in Malawi’slegislature:-B

“Around the world there is trend to move toward more relianceon committees to conduct the work of parliament, and the greatestreason for this trend is concern for efficiency. The demands ona modern parliament are numerous and it is not possible for thewhole house to consider all the details necessary for performingCthe proper function of legislature.[58]”

54. Lord Campion in his book[59] has explained the dual sense inwhich the word “Committee” was used in old parliamentary language:-

“In early days it is not the body as whole but each single memberthat is meant by the term, ‘the body is described as the committee’Dto whom the bill is committed. The formation of the terms is thesame as that of any other English word which denotes the recipientin 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 describeEthe totality of those to whom bill was referred as ‘committee’in an abstract sense. In both the English word emphasis the ideaof delegation and not that of representation in which the Germanword aussehuss expresses.”

55. The utility of Committee has been succinctly expressed byLord Beaconsfield[60]:-F

“I do not think there is anyone who more values the labour ofparliamentary committees than myself. They obtain for the countryan extraordinary mass of valuable information, which probablywould not otherwise be had or available, and formed, as theynecessarily are, of chosen men their reports are pregnant withG

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)

59 “An Introduction to the Procedure of House of Commons”

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

KALPANA MEHTA v. UNION OF INDIA[DIPAK MISRA, CJI]

prudent and sagacious suggestion for the improvements of theadministration of affairs.”

56. The importance of Committees in today’s democracy hasfurther been detailed thus[61]:-

“Committees may not be of much service in the more spectacularaspect of these democratic institutions, and they might not be ofmuch use in shaping fundamental policy, or laying down basicprinciples of government. But they are absolutely indispensablefor the detailed work of supervision and control of theadministration. Not infrequently, do they carry out great pieces ofconstructive legislation of public economy. Investigation of acomplicated social problem, prior to legislation, maybe and isfrequently carried out by such legislative committees, the value ofwhose service cannot be exaggerated. They are useful forobtaining expert advice when the problem is technical oneinvolving several branches within an organization, or when expertsare required to advise upon highly technical problem definablewithin narrow limits. The provision of advice based on an inquiryinvolving the examination of witnesses is also task suitable for acommittee. The employment of small committees, chosen fromthe members of the House, for dealing with some of the items ofthe business of the House is not only convenience but is also inaccordance with the established convention of Parliament. Thisprocedure is particularly helpful in dealing with matters which,because of their special or technical nature, are better consideredin detail by committee of House. Besides expediting legislativebusiness, committees serve other useful services. Service on thesecommittees keeps the members adequately supplied withinformation, deepens their insight into affairs and steady theirjudgment, providing invaluable training to aspirants to office, andthe general level of knowledge and ability in the legislature rises.Committees properly attuned to the spirit and forms parliamentarygovernment can serve the country well as the eyes and ears andto some extent the brain of the legislature, the more so since thefunctions and fields of interest of the government increase day byday.”

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

A57. Also, in the said book, the following observations have beenmade with respect to the functions of Committees:-

“As the committee system developed in the course of time thevarious functions of these bodies were differentiated into fewfixed types and standard of size appropriate to each of theseBfunctions was also arrived at. These committees are appointedfor variety of purposes. One of the major purposes for whichcommittees are appointed is the public investigation of problemsout of the report upon which legislation can be built up. Secondly,committees are appointed to legislate. Bills referred to suchcommittees are thoroughly discussed and drafted before theyCbecome laws. Example of such committees are the selectcommittees in the Indian Legislature. Thirdly, committees areappointed to scrutinize and control. These committees areentrusted with the task of seeing whether or how process isbeing performed, and by their conduct of this task they serve toDprovide the means of some sort of control over the carrying out of

the process.”

58. Today parliamentary committee systems have emerged as acreative way of parliaments to perform their basic functions. They serveas the focal point for legislation and oversight. In number of parliaments,Ebills, resolutions and matters on specific issues are referred to specificcommittees for debate and recommendations are made to the House forfurther debate. Parliamentary committees have emerged as vibrant andcentral institutions of democratic parliaments of today’s world.Parliaments across the globe set up their own rules on how committeesare established, the composition, the mandate and how chairpersons areFto be selected but they do have certain characteristics in common. Theyare usually small group of MPs brought together to critically reviewissues related to particular subject matter or to review specific bill.They are often expected to present their observations andrecommendations to the Chamber for final debate.

59. Often committees have multi-party composition. Theyexamine specific matters of policy or government administration orperformance. Effective committees have developed degree of expertisein given policy area, often through continuing involvement and stablememberships. This expertise is both recognized and valued by theirHcolleagues. They are able to represent diversity as also reconcile enough

KALPANA MEHTA v. UNION OF INDIA[DIPAK MISRA, CJI]

differences to sustain recommendations for action. Also, they areimportant enough so that people inside and outside the legislature seekto influence outcomes by providing information about what they wantand what they will accept. Furthermore, they provide means for alegislative body to consider wide range of topics in-depth and to identifypolitically and technically feasible alternatives.

K. International position of Parliamentary Committees

60. Before we proceed to dwell upon the said aspect in the Indiancontext, we think it apt to have holistic view of the role of ParliamentaryStanding Committees in parliamentary democracy.

61. History divulges that Parliamentary Standing Committees havebeen very vital institutions in most of the eminent democracies such asUSA, United Kingdom, Canada, Australia, etc. Over the years, thecommittee system has come to occupy importance in the field ofgovernance.

K.1 Parliamentary Committees in England

62. British parliamentary history validates that parliamentarycommittees have existed in some form or the other since the 14thcentury. Perhaps the committee system originated with the ‘triersand examiners of petitions’ – they were individual members selectedfor drawing up legislations to carry into effect citizens’ prayers thatwere expressed through petitions. By the middle of the 16th century,a stable committee system came into existence. These Parliamentarycommittees are sub-legislative organizations each consisting of smallnumber of Members of Parliament from the House of Commons,or peers from the House of Lords, or mix of both appointed to dealwith particular areas or issues; most are made up of members of theCommons.[62] The majority of parliamentary committees are SelectCommittees which are designed to:-

1. Superintend the work of departments and agencies;

2. Examine topical issues affecting the country or individualGregions; and

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

62 See http://www.parliament.uk/business/committees/

A63. The other committees such as “Departmental SelectCommittees” are designed to oversee and examine the work of individualgovernment departments, “Topical Select Committee” examinescontemporary 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 very powerful network of committeesBto ensure executive accountability.

K.2 Parliamentary Committees in United States of America

64. Parliamentary Committees are essential to the effectiveoperation of the Parliament in United States. Due to the high volumeand complexity of its work, the Senate divides its tasks among 20Cpermanent committees, 4 joint committees and occasionally temporarycommittees. Although the Senate committee system is similar to that ofthe House of Representatives, it has its own guidelines within whicheach committee adopts its own rules. This creates considerable variationamong the panels. The chair of each committee and majority of itsDmembers represent the majority party. The chair primarily controls acommittee’s business. Each party assigns its own members tocommittees, and each committee distributes its members among its sub-committees.[64] The Senate places limits on the number and types ofpanels any one senator may serve on and chair. Committees receivevarying levels of operating funds and employ varying numbers of aides.E Each hires its own staff. The majority party controls most committeestaff and resources, but portion is shared with the minority.

65. The role and responsibilities of Parliamentary committees inthe United States of America are as follows:-

(i) As “little legislatures,”committees monitor on-goingFgovernmental operations, identify issues suitable for legislative review,gather and evaluate information and recommend courses of action totheir parent body.

(ii) The Committee membership enables members to developspecialized knowledge of the matters under their jurisdiction.G(iii) Standing committees generally have legislative jurisdiction.Sub-committees handle specific areas of the committee’s work. Selectand joint committees generally handle oversight or housekeepingresponsibilities.[65]

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

H65 Other types of committees deal with the confirmation or rejection of presidential

(iv) Several thousand bills and resolutions are referred tocommittees during each 2-year Congress. Committees select smallpercentage for consideration, and those not addressed often receive nofurther action. The bills that committees report help to set the Senate’sagenda.

66. When committee or sub-committee favours measure, itusually takes four actions: first it asks relevant executive agencies forwritten comments on the measure; second, it holds hearings to gatherinformation and views from non-committee experts and at committeehearings, these witnesses summarize submitted statements and thenrespond to questions from the senators; third, committee meets toperfect the measure through amendments, and non-committee memberssometimes attempt to influence the language; and fourth, when thelanguage is agreed upon, the committee sends the measure back to thefull Senate, usually along with written report describing its purposesand provisions. committee’s influence extends to its enactment ofbills into law. committee that considers measure will manage the fullSenate’s deliberation on it. Also, its members will be appointed to anyconference committee created to reconcile its version of bill with theversion passed by the House of Representatives.

K.3 Parliamentary Committees in Canada

67. The Parliament in Canada also functions through variousstanding committees established by Standing Orders of the House ofCommons or the Senate. It studies matters referred to it by special orderor, within its area of responsibility in the Standing Orders, may undertakestudies on its own initiative. There are presently 23 standing committees(including two standing joint committees) in the House and 20 in theCanadian Senate.[66] They, in general, examine the administration, policydevelopments and budgetary estimates of government departments andagencies. Certain standing committees are also given mandates to

nominees. Committee hearings that focus on the implementation and investigation ofprograms are known as oversight hearings, whereas committee investigations examineallegations of wrongdoing.

66 Special committees (sometimes called select committees), e. g., the Special JointCommittee of the Senate and of the House of Commons on the Constitution ofCanada, are sometimes established by the House to study specific issues or toinvestigate public opinion on policy decisions. They are sometimes called task forcesbut should not be confused with government TASK FORCES. See http://www.thecanadianencyclopedia.ca/en/article/committees/

[2018] 4 S.C.R.

Aexamine matters that have implications such as official languagespolicyand multiculturalism policy.

K.4 Parliamentary Committees in Australia

68. The primary object of parliamentary committees in Australiais to perform functions which the Houses themselves are not well fittedBto perform, i.e., finding out the facts of case, examining witnesses,sifting evidence, and drawing up reasoned conclusions. Because of theircomposition and method of procedure, which is structured but generallyinformal compared with the Houses, committees are well suited to thegathering of evidence from expert groups or individuals.[67] In sense,Cthey ‘take Parliament to the people’ and allow organisations and individualsto participate in policy making and to have their views placed on thepublic record and considered as part of the decision-making process.Not only do committee inquiries enable Members to be better informedabout community views but in simply undertaking an inquiry, the committeemay promote public debate on the subject at issue. The all-partyDcomposition of most committees and their propensity to operate acrossparty lines are important features.[68] This bipartisan approach generallymanifests itself throughout the conduct of inquiries and the drawing upof conclusions. Committees oversee and scrutinise the Executive andcontribute towards better-informed administration and governmentEpolicy-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 delegatedto them and governed for the most part in their proceedings by proceduresand practices which reflect those which prevail in the House by whichthey were appointed.F

L. Parliamentary Committees in India

69. Having reflected upon the parliamentary committees andtheir role in other democracies, we may now proceed to deal withthe parliamentary committees in India. The long freedom struggle inGIndia was not just movement to achieve freedom from British rule.It was as much movement to free ourselves from the various socialevils and socio-economic inequities and discriminations, to lift thedeprived and the downtrodden from the sludge of poverty and to

67 See https://www.aph.gov.au/Parliamentary_Business/Committees

give them stake in the overall transformation of the country. It waswith this larger national objective that democratic polity based onparliamentary system was conceived and formally declared in 1936as “the establishment of democratic state,” sovereign state whichwould promote and foster “full democracy” and usher in new socialand economic order.

70. The founding fathers of the Constitution perceived thatsuch system would respond effectively to the problems arising fromour diversity as also to the myriad socio-economic factors that thenation was faced with. With that objective, in the political systemthat we established, prominence was given to the Parliament, theorgan that directly represents the people and as such accountable tothem.

71. At this juncture, we may look at the origin and working of theParliamentary Committee. The committee system in India, as has beenstated in “The Committee System in India : Effectiveness in EnforcingExecutive Accountability”, Hanoi Session, March 2015, is as follows:-

“The origin of the committee system in India can be traced backto the Constitutional Reforms of 1919. The Standing Orders ofthe Central Legislative Assembly provided for Committee onPetitions relating to Bills, Select Committee on Amendments ofStanding Orders, and Select Committee on Bills. There was alsoa provision for Public Accounts Committee and Joint Committeeon Bill. Apart from Committees of the Legislative Assembly,Members of both Houses of the Central Legislature also servedon the Standing Advisory Committees attached to variousDepartments of the Government of India. All these committeeswere purely advisory in character and functioned under the controlof the Government with the Minister in charge of the Departmentacting as the Chairman of the Committee.

After the Constitution came into force, the position of the CentralLegislative Assembly changed altogether and the committeesystem underwent transformation. Not only did the number ofcommittees increase, but their functions and powers were alsoenlarged.

By their nature, Parliamentary Committees are of two kinds:Standing Committees and Ad hoc Committees. Standing

ACommittees are permanent and regular committees which areconstituted from time to time in pursuance of the provisions of anAct of Parliament or Rules of Procedure and Conduct of Businessin Lok Sabha. The work of these Committees is of continuousnature. The Financial Committees, Departmentally RelatedStanding Committees (DRSCs) and some other Committees comeBunder the category of Standing Committees. Ad hoc Committeesare appointed for specific purpose and they cease to exist whenthey finish the task assigned to them and submit report. Theprincipal Ad hoc Committees are the Select and Joint Committeeson Bills. Railway Convention Committee, Joint Committee on FoodCManagement in Parliament House Complex, etc. also come underthe category of Ad hoc Committees.”

72. In the said document, it has been observed thus in respect ofthe Standing Committees of Parliament:-

“Standing Committees are those which are periodically electedDby the House or nominated by the Speaker, Lok Sabha, or theChairman, Rajya Sabha, singly or jointly and are permanent innature. In terms of their functions, Standing Committees may beclassified into two categories. One category of Committees likethe Departmentally Related Standing Committees (DRSCs),EFinancial Committees, etc., scrutinise the functioning of theGovernment as per their respective mandate. The other categoryof Committees like the Rules Committee, House Committee, JointCommittee on Salaries and Allowances, etc. deal with mattersrelating to the Houses and members.”F73. The functions of the Parliament in modern times are not onlydiverse and complex in nature but also considerable in volume and thetime at its disposal is limited. It cannot, therefore, give close considerationto all the legislative and other matters that come up before it. gooddeal of its business is, therefore, transacted in the Committees of theHouse known as Parliamentary Committees. Parliamentary CommitteeGmeans Committee which is appointed or elected by the House ornominated by the Speaker and which works under the direction of theSpeaker and presents its report to the House or to the Speaker.

74. Founded on English traditions, the Indian Parliament’scommittee system has vital role in the parliamentary democracy.H

Generally speaking, the Parliamentary committees are of two kinds;standing committees and ad hoc committees. Standing Committeesare permanent and regular committees which are constituted from timeto time in pursuance of the provisions of an Act of Parliament or Rulesof Procedure and Conduct of Business in Lok Sabha. The work of theseCommittees is of continuous nature. The Financial Committees,Department Related Standing Committees (DRSCs) and some otherCommittees too come under the category of Standing Committees. Thead hoc Committees are appointed for specific purposes as and when theneed arises and they cease to exist as soon as they complete the workassigned to them.[70 ]The parliamentary committees are invariably largerin size and are recommendatory in nature. Be it stated, there are 24Department Related Standing Committees covering under their jurisdictionall the Ministries/Departments of the Government of India. Each of theseCommittees consists of 31 Members - 21 from Lok Sabha and 10 fromRajya Sabha to be nominated by the Speaker, Lok Sabha and theChairman, Rajya Sabha, respectively. The term of office of theseCommittees does not exceed one year.

L.1 Rules of Procedure and Conduct of Business in LokSabha

75. close look at the functioning of these committees disclosesthe fact that the committee system is designed to enlighten Membersof Parliament (MPs) on the whole range of governmental actionincluding defence, external affairs, industry and commerce,agriculture, health and finance. They offer opportunities to the membersof the Parliament to realize and comprehend the dynamics of democracy.The members of Parliament receive information about parliamentaryworkings as well as perspective on India’s strengths and weaknessesthrough the detailed studies undertaken by standing committees. Indianparliamentary committees are huge basin of information which aremade available to the Members of Parliament in order to educatethemselves and contribute ideas to strengthen the parliamentarysystem and improve governance. The committee system is designedto enhance the capabilities of Members of Parliament to shouldergreater responsibilities and broaden their horizons.

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

A76. As has been stated in the referral judgment with regard to theParliamentary Committee, we may usefully refer to the Rules ofProcedure and Conduct of Business in Lok Sabha (for short ‘the Rules’).Rule 2 of the Rules defines “Parliamentary Committee”. It reads asfollows:-

“2. (1) … “Parliamentary Committee” means Committee whichis appointed or elected by the House or nominated by the Speakerand which works under the direction of the Speaker and presentsits report to the House or to the Speaker and the Secretariat forwhich is provided by the Lok Sabha Secretariat.”

C77. From the referral judgment, we may reproduce the followingparagraphs dealing with the relevant Rules:-

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

(a) Financial Committees;

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

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

(d) Enquiry Committee;

F(e) Scrutiny Committees;

(f) Service Committees;

34. list of Standing Committees of Lok Sabha along with itsmembership 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

KALPANA MEHTA v. UNION OF INDIA

[DIPAK MISRA, CJI]

Committee on Estimates30Committee on Government 15 AssurancesCommittee on Papers Laid on the 15 Table Committee on Petitions15Committee on Private Members Bills 15 and Resolutions Committee on Public Accounts22Committee on Public Undertakings22Committee on Subordinate 15 LegislationCommittee 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 15Allowances of Members of ParliamentLibrary Committee 9 Rules Committee 15

Apart from the above, there are various departmentally relatedStanding 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 SelectCommittee of the House or Joint Committee of the Houses, asFthe case may be, on Bill, the member in charge may move—

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

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

A(i) without limitation, or

(ii) with respect to particular clauses or amendments only, or(iii) with instructions to the Committee to make some particular oradditional provision in the Bill, or

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

Provided that any member may object to any such motion beingmade if copy of the report has not been made available for theuse of members for two days before the day on which the motionis made and such objection shall prevail, unless the Speaker allowsthe motion to be made.

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

78. The debate on motion that the Bill as reported by the SelectCommittee of the House or the Joint Committee of the Houses,as the case may be, be taken into consideration shall be confinedto consideration of the report of the Committee and the mattersreferred to in that report or any alternative suggestions consistentFwith the principle of the Bill.”

79. Rule 270 of the Rules, which deals with the functions of theParliamentary Committee meant for Committees of the Rajya Sabha, isrelevant. It reads as follows:-

“270. Functions.— Each of the Standing Committees shall havethe following functions, namely—

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

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

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

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

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

80. Rule 271 provides for the applicability of provisions relating tofunctions. Rule 274 deals with the report of the Committee. The saidRule reads as follows:-

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

(2) Any member of the Committee may record minute of dissenton the report of the Committee.

(3) The report of the Committee, together with the minutes ofdissent, if any, shall be presented to the Houses.”

81. Rule 274(3) is extremely significant, for it provides that thereport 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 tohave persuasive value. In this context, Rule 277 is worth quoting:-

“277. Reports to have persuasive value.— The report of aStanding Committee shall have persuasive value and shall betreated as considered advice given by the Committee.””

The aforesaid rule makes it quite vivid that the report of theCommittee is treated as an advice given by the Committee and it ismeant for the Parliament.

M. Parliamentary privilege

82. Black’s Law Dictionary, 6[th] Ed., 1990, p. 1197, defines“privilege” as “a particular and peculiar benefit or advantage enjoyed bya person, company, or class, beyond the common advantages of other

Acitizens. An exceptional or extraordinary power or exemption. peculiarright, advantage, exemption, power, franchise, or immunity held by aperson or class, not generally possessed by others.”

83. Parliamentary privilege is defined by author Erskine MayinErskine May’s Treatise on the Law, Privileges, Proceedings and UsageBof Parliament:-

“Parliamentary privilege is the sum of the peculiar rights enjoyedby each House collectively... and by Members of each Houseindividually, without which they could not discharge their functions,and which exceed those possessed by other bodies or individuals.CThus privilege, though part of the law of the land, is to certainextent an exemption from the general law.”[71]

84. The concept of Parliamentary Privilege has its origin inWestminster, Britain in the 17th century with the passage of the Bill ofRights in 1689. Article IX of the Bill of Rights, which laid down theDconcept of Parliamentary Privilege, reads as under:-

“That the freedom of speech and debates or proceedings inParliament ought not to be impeached or questioned in any courtor place out of Parliament.”

85. Parliamentary Privilege was introduced to prevent any undueEinterference in the working of the Parliament and thereby enable themembers of the Parliament to function effectively and efficiently withoutunreasonable impediment. Till date, Parliamentary Privilege remains animportant feature in any parliamentary democracy. The concept ofParliamentary Privilege requires balancing act of two oppositearguments as noted by Thomas Erskine May:-F

“On the one hand, the privileges of Parliament are rights‘absolutely necessary for the due execution of its powers’; andon the other, the privilege of Parliament granted in regard of publicservice ‘must not be used for the danger of the commonwealth.”[72]

GM.1 Parliamentary privilege under the Indian Constitution

86. Having dealt with the role of the Parliamentary StandingCommittee or Parliamentary Committees, it is necessary to understand

71 May, 22nd ed., p. 65. For other definitions of privilege, see Maingot, 2nd ed., pp. 12-3. 72 Erskine May 24th Edition Pg. 209H

the status of Parliamentary Committee and the privileges it enjoys in theIndian context. Article 105 of the Constitution of India, being relevant inthis context, is reproduced below:-

“Article 105.Powers, privileges, etc of the Houses ofParliament and of the members and committees thereof

(1) Subject to the provisions of this constitution and the rules andstanding orders regulating the procedure of Parliament, there shallbe freedom of speech in Parliament

(2) No member of Parliament shall be liable to any proceedings inany court in respect of anything said or any vote given by him inParliament or any committee thereof, and no person shall be soliable in respect of the publication by or under the authority ofeither House of Parliament of any report, paper, votes orproceedings

(3) In other respects, the powers, privileges and immunities ofeach House of Parliament, and of the members and the committeesof each House, shall be such as may from time to time be definedby Parliament by law, and, until so defined shall be those of thatHouse and of its members and committees immediately beforethe coming into force of Section 15 of the Constitution (Fortyfourth Amendment) Act 1978

(4) The provisions of clauses (1), (2) and (3) shall apply in relationto persons who by virtue of this Constitution have the right tospeak in, and otherwise to take part in the proceedings of, Houseof Parliament or any committee thereof as they apply in relationto members of Parliament.”

87. Sub-article (2) of the aforesaid Article clearly lays the postulatethat no member of Parliament shall be made liable to any proceedings inany court in respect of anything he has said in the committee. Freedomof speech that is available to the members on the floor of the legislatureis quite distinct from the freedom which is available to the citizens underArticle 19(1)(a) of the Constitution. Members of the Parliament enjoyfull freedom in respect of what they speak inside the House. Article105(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

Aof, House of the Parliament or any committee thereof as they apply inrelation to the members of the Parliament. Thus, there is completeconstitutional protection. It is worthy to note that Article 118 providesthat each House of the Parliament may make rules for regulating, subjectto the provisions of this Constitution, its procedure and the conduct of itsbusiness. Condignly analysed, the Parliament has been enabled by theBConstitution to regulate its procedure apart from what has been stateddirectly in the Constitution.

88. Article 105 of the Constitution is read mutatis mutandis withArticle 194 of the Constitution as the language in both the articles isidentical, except that Article 105 employs the word “Parliament” whereasCArticle 194 uses the words “Legislature of State”. Therefore, theinterpretation of one of these articles would invariably apply to the otherand 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 theDfundamental rights of the citizens. The decision expressly started thatthe 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 notdealing with any matter relating to the internal management ofEthe House in the present proceedings. We are dealing with thepower of the House to punish citizens for contempt alleged tohave been committed by them outside, the four walls of the House,and that essentially raises different considerations.

xxxxx

F141. In conclusion, we ought to add that throughout our discussionwe have consistently attempted to make it clear that the mainpoint which we are discussing is the right of the House to claimthat general warrant issued by it in respect of its contempt allegedto have been committed by citizen who is not Member of theGHouse outside the four walls of the House, is conclusive, for it ison that claim that the House has chosen to take the view that theJudges, the Advocate, and the party have committed contempt byreference to their conduct in the habeas corpus petition pendingbefore the Lucknow Bench of the Allahabad High Court. …”

73 AIR 1965 SC 745

90. The Court further observed:-

“43. … In this connection it is necessary to remember that thestatus, 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 thatare assigned to their charge by the Constitution. These two augustbodies as well as the Executive which is another importantconstituent of democratic State, must function not in antinovelnor in spirit of hostility, but rationally, harmoniously and in spiritof understanding within their respective spheres, for suchharmonious working of the three constituents of the democraticState alone will help the peaceful development, growth andstabilization of the democratic way of life in this country.”

91. In the said case, the Court was interpreting Article 194 of theConstitution and, in that context, it held:-

“31. … While interpreting this clause, it is necessary to emphasisthat the provisions of the Constitution subject to which freedomof speech has been conferred on the legislators, are not the generalprovisions of the Constitution but only such of them as relate tothe regulation of the procedure of the Legislature. The rules andstanding orders may regulate the procedure of the Legislatureand some of the provisions of the Constitution may also purport toregulate it; these are, for instance, Articles 208 and 211. Theadjectival clause “regulating the procedure of the Legislature”governs both the preceding clauses relating to “the provisions ofthe Constitution” and “the rules and standing orders.” Therefore,clause (1) confers on the legislators specifically the right of freedomof speech subject to the limitation prescribed by its first part. Itwould thus appear that by making this clause subject only to thespecified provisions of the Constitution, the Constitution-makerswanted to make it clear that they thought it necessary to conferon the legislators freedom of speech separately and, in sense,independently of Art. 19(1)(a). If all that the legislators were entitledto claim was the freedom of speech and expression enshrined inArt. 19(1)(a), it would have been unnecessary to confer the sameright specifically in the manner adopted by Art. 194(1); and so, itwould be legitimate to conclude that Art. 19(1)(a) is not one of

Athe provisions of the Constitution which controls the first part ofclause (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 andunfettered. Similar freedom is guaranteed to the legislators in respect ofBthe votes they may give in the Legislature or any committee thereof.Interpreting clause (3), the Court ruled that the first part of this clauseempowers the Legislatures of the States to make laws prescribing theirpowers, privileges and immunities; the latter part provides that until suchlaws are made, the Legislatures in question shall enjoy the same powers,privileges and immunities which the House of Commons enjoyed at theCcommencement of the Constitution. The Constitution-makers, the Courtobserved, must have thought that the Legislatures would take some timeto make laws in respect of their powers, privileges and immunities. Duringthe interval, it was clearly necessary to confer on them the necessarypowers, privileges and immunities. There can be little doubt that theDpowers, privileges and immunities which are contemplated by clause (3)are incidental powers, privileges and immunities which every Legislaturemust possess in order that it may be able to function effectively, and thatexplains the purpose of the latter part of clause (3). The Court statedthat all the four clauses of Article 194 are not in terms made subject tothe provisions contained in Part III. In fact, clause (2) is couched in suchEwide terms that in exercising the rights conferred on them by clause (1),if the legislators by their speeches contravene any of the fundamentalrights guaranteed by Part III, they would not be liable for any action inany court. It further said:-

“36. … In dealing with the effect of the provisions contained inFclause (3) of Article 194, wherever it appears that there is conflictbetween the said provisions and the provisions pertaining tofundamental rights, an attempt win have to be made to resolvethe said conflict by the adoption of the rule of harmoniousconstruction. …”G92. Dealing with the plenary powers of the legislature, the Courtruled that these powers are controlled by the basic concepts of the writtenConstitution itself and can be exercised within the legislative fields allottedto their jurisdiction by the three Lists under the Seventh Schedule; butbeyond the Lists, the Legislatures cannot travel. They can no doubt

exercise their plenary legislative authority and discharge their legislativefunctions by virtue of the powers conferred on them by the relevantprovisions of the Constitution; but the basis of the power is the Constitutionitself. Besides, the legislative supremacy of our Legislatures includingthe Parliament is normally controlled by the provisions contained in PartIII of the Constitution. If the Legislatures step beyond the legislativefields assigned to them, or while acting within their respective fields,they trespass on the fundamental rights of the citizens in manner notjustified by the relevant articles dealing with the said fundamental rights,their legislative actions are liable to be struck down by the Courts inIndia. Therefore, it is necessary to remember that though our Legislatureshave plenary powers, yet they function within the limits prescribed bythe material and relevant provisions of the Constitution.

93. Adverting to Article 212(1) of the Constitution, the Court heldthat the said Article seems to make it possible for citizen to call inquestion in the appropriate court of law the validity of any proceedingsinside the legislative chamber if his case is that the said proceedingssuffer not from mere irregularity of procedure, but from an illegality. Ifthe impugned procedure is illegal and unconstitutional, it would be opento be scrutinised in court of law, though such scrutiny is prohibited ifthe complaint against the procedure is no more than this that the procedurewas irregular. That again is another indication which may afford someassistance in construing the scope and extent of the powers conferredon the House by Article 194(3).

94. In Raja Ram Pal v. Hon’ble Speaker, Lok Sabha andothers[74], the Court, after referring to U.P. Assembly case (SpecialReference No. 1 of 1964), observed that the privileges of the Parliamentare rights which are “absolutely necessary for the due execution of itspowers” which are enjoyed by individual members as the House wouldnot be able to perform its functions without unimpeded use of the servicesof its members and also for the protection of its members and thevindication of its own authority and dignity. The Court, for the saidpurpose, referred to May’s Parliamentary Practice. Parliamentaryprivilege conceptually protects the members of Parliament from unduepressure and allows them freedom to function within their domain regardbeing had to the idea of sustenance of legislative functionalism. Theaforesaid protection is absolute.

AM.2 Judicial review of parliamentary proceedings and itsprivilege

95. Commenting upon the effect of parliamentary privilege, theHouse of Lords in the case of Hamilton v. Al Fayed[75 ]pointed out thatthe normal impact of parliamentary privilege is to prevent the CourtBfrom entertaining any evidence, cross-examination or submissions whichchallenge the veracity or propriety of anything done in the course ofparliamentary proceedings.

96. With regard to the role of the Court in the context ofparliamentary privileges, Lord Brougham, in the case of Wellesley v.CDuke of Beaufort[76], has opined that it is incumbent upon the Courts oflaw to defend their high and sacred duty of guarding themselves, theliberties and the properties of the subject, and protecting the respectabilityand the very existence of the Houses of Parliament themselves, againstwild and extravagant and groundless and inconsistent notions of privilege.

D97. The 1999 UK Joint Committee report offers useful analysisof the respective roles to be played by the Parliament and the Courts inadvancing the law of parliamentary privilege:-

“There may be good sense sometimes in leaving well alone whenproblems have not arisen in practice. Seeking to clarify and defineEboundaries may stir up disputes where currently none exists. ButParliament is not always well advised to adopt passive stance.There is merit, in the particularly important areas of parliamentaryprivilege, in making the boundaries reasonably clear beforedifficulties arise. Nowadays people are increasingly vigorous intheir efforts to obtain redress for perceived wrongs. In their courtFcases they press expansively in areas where the limits of the courts’jurisdiction are not clear. Faced with demarcation problems in thisjurisdictional no-man’s land, the judges perforce must determinethe position of the boundary. If Parliament does not act, the courtsmay find themselves compelled to do so.”

G98. With respect to the position of parliamentary privileges andthe role of the Courts in Canada, the Supreme Court of Canada in thecase of New Brunswick Broadcasting Co. v. Nova Scotia (Speakerof the House of Assembly)[77] opined that the Canadian legislative bodies

75 [2001] 1 AC 395 at 407 76 [1831] Eng R 809 : (1831) 2 Russ & My 639: (1831) 39 ER 538H 77 [1993] 1 SCR 319

possess such inherent privileges as may be necessary to their properfunctioning and that the said privileges are part of the fundamental lawof the land and are, hence, constitutional. Further, the Court observedthat the Courts have the power to determine if the privilege claimed isnecessary to the capacity of the legislature to function, but have nopower to review the correctness of particular decision made pursuantto the privilege. In the case of Harvey v. New Brunswick (AttorneyGeneral)[78], the Court has held that in order to prevent abuses in theguise of privilege from trumping legitimate Charter interests, the Courtsmust inquire into the legitimacy of claim of parliamentary privilege.

99. With respect to the review of parliamentary privilege, LordColeridge, C.J., in the case of Bradlaugh v. Gossett[79], observed thatthe question as to whether in all cases and under all circumstances theHouses are the sole judges of their own privileges is not necessary to bedetermined in this case and that to allow any review of parliamentaryprivilege by court of law may lead and has led to very gravecomplications. However, the Law Lord remarked that to hold theresolutions of either House absolutely beyond any inquiry in any court oflaw may land in conclusion not free from grave complications and it isenough to say that in theory the question is extremely hard to solve.

100. Sir William Holdsworth in his book[80] has also made thefollowing 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 ofthe land;’ the second that ‘Each House is the judge of its ownprivileges’. Now at first sight it may seem that these maxims arecontradictory. If privilege of Parliament is part of the law of theland its meaning and extent must be interpreted by the courts, justlike any other part of the law; and therefore, neither House canadd to its privileges by its own resolution, any more than it canadd to any other part of the law by such resolution.

On the other hand if it is true that each House is the sole judge ofits own privileges, it might seem that each House was the solejudge as to whether or no it had got privilege, and so could addto its privileges by its own resolution. This apparent contradiction

78 [1996] 2 SCR 876

79 (1884) 12 QBD 271 (D)

80 “A History of English Law”

Ais solved if the proper application of these two maxims is attendedto. The first maxim applies to cases like Ashby v. White andStockdale v. Hansard (A), in which the question al issue was theexistence of privilege claimed by the House.

This is matter of law which the courts must decide, withoutBpaying any attention to resolution of the House on the subject.The second maxim applies to cases like that of the Sheriff ofMiddlesex (B), and Bradlaugh v. Gosset (D), in which an attemptwas made to question, not the existence but the mode of user ofan undoubted privilege. On this matter the courts will not interferebecause each House is the sole judge of the question whether,Cwhen or how it will use one of its undoubted privileges.”

101. At this juncture, it is fruitful to refer to Articles 121 and 122of the Constitution. They read as follows:-

“121. Restriction on discussion in Parliament: No discussionsDshall take place in Parliament with respect to the conduct of anyJudge of the Supreme Court or of High Court in the dischargeof his duties expect upon motion for presenting an address tothe President praying for the removal of the Judge as hereinafterprovided.

E122. Courts not to inquire into proceedings of Parliament:-(1) The validity of any proceedings in Parliament shall not be calledin question on the ground of any alleged irregularity of procedure.

(2) No officer or member of Parliament in whom powers arevested by or under this Constitution for regulating procedure orFthe conduct of business, or for maintaining order, in Parliamentshall be subject to the jurisdiction of any court in respect of theexercise by him of those powers.”

102. As we perceive, the aforesaid Articles are extremelysignificant as they are really meant to state the restrictions imposed byGthe Constitution on both the institutions.

103. In Raja Ram Pal (supra), Constitution Bench, after referringto U.P. Assembly case [Special Reference No. 1 of 1964] (supra),opined:-

“267. Indeed, the thrust of the decision was on the examination ofH

the power to issue unspeaking warrants immune from the reviewof the courts, and not on the power to deal with contempt itself. Aclose reading of the case demonstrates that the Court treated thepower to punish for contempt as privilege of the House. Speakingof 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 punishfor contempt committed outside its chamber, and from that pointof view it may claim one of the rights possessed by court ofrecord.”

(Emphasis supplied)

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

“We ought never to forget that the power to punish for contemptlarge as it is, must always be exercised cautiously, wisely andwith circumspection. Frequent or indiscriminate use of this powerin anger or irritation would not help to sustain the dignity or statusof the court, but may sometimes affect it adversely. Wise Judgesnever forget that the best way to sustain the dignity and status oftheir office is to deserve respect from the public at large by thequality of their judgments, the fearlessness, fairness and objectivityof their approach, and by the restraint, dignity and decorum whichthey observe in their judicial conduct. We venture to think thatwhat is true of the judicature is equally true of thelegislatures.”

And again:-

“269. It is evident, therefore, that in the opinion of the Court inU.P. Assembly case (Special Reference No. 1 of 1964),legislatures in India do enjoy the power to punish for contempt. Itis equally clear that while the fact that the House of Commonsenjoyed the power to issue unspeaking warrants in its capacity ofa court of record was one concern, what actually worried theCourt was not the source of the power per se, but the “judicial”nature of power to issue unspeaking warrant insofar as it wasdirectly in conflict with the scheme of the Constitution whereby

Acitizens were guaranteed fundamental rights and the power toenforce the fundamental rights is vested in the courts. It was notthe power to punish for contempt about which the Court hadreservations. Rather, the abovequoted passage shows that suchpower had been accepted by the Court. The issue decidedconcerned the non-reviewability of the warrant issued by theBlegislature, in the light of various constitutional provisions.”

104. After referring to various other decisions, the Courtsummarized the principles relating to the parameters of judicial reviewin relation to exercise of parliamentary provisions. Some of theconclusions being relevant for the present purpose are reproduced below:-C

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

(b) The constitutional system of government abhors absolutismand it being the cardinal principle of our Constitution that no one,Dhowsoever lofty, can claim to be the sole judge of the power givenunder the Constitution, mere coordinate constitutional status, oreven the status of an exalted constitutional functionaries, does notdisentitle this Court from exercising its jurisdiction of judicial review-of actions which partake the character of judicial or quasijudicialdecision;

(c) The expediency and necessity of exercise of power or privilegeby the legislature are for the determination of the legislativeauthority and not for determination by the courts;

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

xxxx

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

(g) While the area of powers, privileges and immunities of thelegislature being exceptional and extraordinary its acts, particularlyrelating to exercise thereof, ought not to be tested on the traditionalparameters of judicial review in the same manner as an ordinary

administrative action would be tested, and the Court would confineitself to the acknowledged parameters of judicial review and withinthe judicially discoverable and manageable standards, there is nofoundation to the plea that legislative body cannot be attributedjurisdictional error;

(h) The judicature is not prevented from scrutinising the validityof the action of the legislature trespassing on the fundamentalrights conferred on the citizens;

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

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

(k) There is no basis to the claim of bar of exclusive cognizanceor absolute immunity to the parliamentary proceedings in Article105(3) of the Constitution;

(l) The manner of enforcement of privilege by the legislature canresult in judicial scrutiny, though subject to the restrictions containedin the other constitutional provisions, for example Article 122 or212;

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

(n) Article 122(1) and Article 212(1) prohibit the validity of anyproceedings in legislature from being called in question in courtmerely on the ground of irregularity of procedure;

xxx

(r) Mere availability of the Rules of Procedure and Conduct ofBusiness, as made by the legislature in exercise of enabling powers

under the Constitution, is never guarantee that they have beenduly followed;

(s) The proceedings which may be tainted on account ofsubstantive or gross illegality or unconstitutionality are not protectedfrom judicial scrutiny;

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

(u) An ouster clause attaching finality to determination doesordinarily oust the power of the court to review the decision butCnot on grounds of lack of jurisdiction or it being nullity for somereason such as gross illegality, irrationality, violation of constitutionalmandate, mala fides, non-compliance with rules of natural justiceand perversity.”

[Emphasis supplied]

105. The aforesaid summarization succinctly deals with the judicialreview in the sense that the Constitutional Courts are not preventedfrom scrutinizing the validity of the action of the legislature trespassingon the fundamental rights conferred on the citizens; that there is noabsolute immunity to the parliamentary proceeding under Article 105(3)Eof the Constitution; that the enforcement of privilege by the legislaturecan result in judicial scrutiny though subject to the restrictions containedin other constitutional provisions such as Articles 122 and 212; that Article122(1) and Article 212(1) prohibit the validity of any proceedings in thelegislature from being called in question in court merely on the groundof irregularity of procedure, and the proceedings which may be taintedFon account of substantive or gross illegality or unconstitutionality are notprotected from judicial scrutiny.

106. We are presently concerned with the interpretation of twoconstitutional provisions, namely, Articles 122 and 105. It has beensubmitted by the learned counsel on behalf of the petitioners that theGreports of parliamentary committees have various facets, namely,statement of fact made to the committee, statement of policy made tothe committee, statements of fact made by Members of Parliament inParliament and inference drawn from facts and findings of fact and lawand, therefore, the Court is required to pose the question as to which of

the above aspects of the Parliamentary Committee Reports can be placedreliance upon. The contention is structured on the foundation thatcommittee reports are admissible in evidence and in public interestlitigation in exercise of power under Article 32 for interpreting thelegislation and directing the implementation of constitutional or statutoryobligation by the executive.

N. Reliance on parliamentary proceedings as external aids

107. Constitution Bench in R.S. Nayak v. A.R. Antulay[81], afterreferring to various decisions of this Court and development in the law,opined that the exclusionary rule is flickering in its dying embers in itsnative land of birth and has been given decent burial by this Court. TheConstitution Bench further observed that the basic purpose of all canonsof the Constitution is to ascertain with reasonable certainty the intentionof the Parliament and for the said purpose, external aids such as reportsof special committee preceding the enactment, the existing state of law,the environment necessitating enactment of legislation and the objectsought to be achieved, etc. which the Parliament held the luxury ofavailing should not be denied to the Court whose primary function is togive effect to the real intention of the legislature in enacting statute.The Court was of the view that such denial would deprive the Court ofa substantial and illuminating aid to construction and, therefore, the Courtdecided to depart from the earlier decisions and held that reports ofcommittees which preceded the enactment of law, reports of JointParliamentary Committees and report of commission set up forcollecting information can be referred to as external aids of construction.

108. In this regard, we may also usefully state that the speechesof Ministers in Parliament are referred to on certain occasions for limitedpurposes. Constitution Bench in State of West Bengal v. Union ofIndia[82] has opined that it is, however, well settled that the Statement ofObjects and Reasons accompanying Bill, when introduced inParliament, cannot be used to determine the true meaning and effect ofthe substantive provisions of the statute. They cannot be used exceptfor the limited purpose of understanding the background and theantecedent state of affairs leading up to the legislation. The same cannotbe used as an aid to the construction of the enactment or to show thatthe legislature did not intend to acquire the proprietary rights vested in

81 (1984) 2 SCC 183

82 AIR 1963 SC 1241

Athe State or, in any way, to affect the State Governments’ rights asowners of minerals. statute, as passed by the Parliament, is theexpression of the collective intention of the legislature as whole, andany statement made by an individual, albeit Minister, of the intentionand objects of the Act cannot be used to cut down the generality of thewords used in the statute.B

109. In K.P. Varghese v. Income Tax Officer, Ernakulam andanother[83], the Court, while referring to the budget speech of the Minister,ruled that speeches made by members of legislatures on the floor of theHouse where Bill for enacting statutory provision is being debatedare inadmissible for the purpose of interpreting the statutory provision.CBut the Court made it clear that the speech made by the mover of theBill explaining the reasons for introducing the Bill can certainly be referredto for ascertaining the mischief sought to be remedied and the objectand the purpose of the legislation in question. Such view, as per theCourt, was in consonance with the juristic thought not only in the westernDcountries but also in India as in the exercise of interpretation of statute,everything which is logically relevant should be admitted. Thereafter,the Court acknowledged few decisions of this Court where speechesmade by the Finance Minister were relied upon by the Court for thepurpose of ascertaining the reason for introducing particular clause.Similar references have also been made in Dr. Ramesh YeshwantEPrabhoo v. Prabhakar Kashinath Kunte and others[84]. That apart,parliamentary debates have also been referred to appreciate the contextrelating to the construction of statute in Novartis AG v. Union ofIndia and others[85], State of Madhya Pradesh and another v.Dadabhoy’s New Chirimiri Ponri Hill Colliery Co. Pvt. Ltd.[86], UnionFof India v. Steel Stock Holders Syndicate, Poona[87], K.P. Varghese(supra), and Surana Steels Pvt. Ltd. v. Dy. Commissioner of IncomeTax and others[88].

110. In Ashoka Kumar Thakur v. Union of India and others[89],this Court, after referring to Crawford on Statutory Construction,G 83 (1981) 4 SCC 173 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 1H

observed that the Rule of Exclusion followed in the British Courts hasbeen criticized by jurists as artificial and there is strong case for whittlingdown the said rule. The Court was of the view that the trend of academicopinion and practice in the European system suggests that theinterpretation of statute being an exercise in the ascertainment ofmeaning, everything which is logically relevant should be admissible whichimplies that although such extrinsic materials shall not be decisive, yetthey should at least be admissible. Further, the Court took note of thefact that there is authority to suggest that resort should be had to theseextrinsic materials only in case of incongruities and ambiguities. Wherethe meaning of the words in statute is plain, then the language prevails,but in case of obscurity or lack of harmony with other provisions and inother special circumstances, it may be legitimate to take externalassistance to determine the object of the provisions, the mischief soughtto be remedied, the social context, the words of the authors and otherallied matters.

111. In Additional Commissioner of Income Tax, Gujarat v.Surat Art Silk Cloth Manufacturers’ Association, Surat[90], this Courtheld:-

“It is legitimate to look at the state of law prevailing leading to thelegislation so as to see what was the mischief at which the Actwas directed. This Court has on many occasions taken judicialnotice of such matters as the reports of parliamentary committees,and of such other facts as must be assumed to have been withinthe contemplation of the legislature when the Acts in questionwere passed.”

112. We have referred to these authorities to highlight that thereports or speeches have been referred to or not referred to for thepurposes indicated therein and when the meaning of statute is notclear or ambiguous, the circumstances that led to the passing of thelegislation can be looked into in order to ascertain the intention of thelegislature. It is because the reports assume significance and becomerelevant because they precede the formative process of legislation.

113. In Pepper v. Hart[91], Lord Browne-Wilkinson, delivering themain speech, set out the test as follows:-

90 (1980) 2 SCC 31

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

A“I therefore reach the conclusion, subject to any question ofParliamentary privilege, that the exclusionary rule should be relaxedso 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 aMinister or other promoter of the Bill together if necessary withBsuch other Parliamentary material as is necessary to understandsuch statements and their effect; (c) the statements relied uponare clear.”114. The Supreme Court of Canada in R. v. Vasil[92]relied onparliamentary materials to interpret the phrase “unlawful object” in SectionC212(c) of the Canadian Criminal Code. Speaking for the majority, JusticeLamer (as he then was) said:-

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

Indeed, reading of Sir John Thompson’s comments in Hansardof April 12, 1892, (House of Commons Debates, Dominion ofECanada, Session 1892, vol. I, at pp. 1378-85) very clearly confirmsthat all that relates to murder was taken directly from the EnglishDraft Code of 1878. Sir John Thompson explained the proposedmurder sections by frequently quoting verbatim the reasons givenby the Royal Commissioners in Great Britain, and it is evident thatFCanada adopted not only the British Commissioners’ proposedsections but also their reasons.”

The Canadian authorities, as is noticeable from Re Anti-InflationAct (Canada)[93], have relaxed the exclusionary rule.

115. In Dharam Dutt and others v. Union of India and others[94],Gthe Court took note of the three Parliamentary Standing Committeesappointed at different points of time which had recommended the takingover of Sapru House on the ground of declining standard of the Institution.

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

Further, this Court took note that it had already pointed out in an earlierpart of this judgment that in the present case, successive parliamentarycommittees had found substance in the complaints received that aninstitution of national importance was suffering from mismanagementand maladministration and in pursuance of such PSC report, the CentralGovernment acted on such findings.

116. In Kuldip Nayar (supra), certain amendments in theRepresentation of the People Act, 1951 were challenged which had theeffect of adopting an open ballot system instead of secret ballot systemfor elections to the Rajya Sabha. Defending the amendment, the Unionof India submitted copy of Report of the Ethics Committee of theParliament which recommended the open ballot system for the aforesaidpurpose. The Committee had noted the emerging trends of cross votingin elections for Rajya Sabha and Legislative Councils in the State. It alsomade reference to rampant allegations that large sums of money andother considerations encourage the electorate to vote in particularmanner sometimes leading to defeat of official candidates belonging totheir own political party. In this context, the Court took note of therecommendations of the Committee Report while testing the vires ofthe impugned amendment.

117. From the aforesaid, it clear as day that the Court can takeaid of the report of the parliamentary committee for the purpose ofappreciating the historical background of the statutory provisions and itcan also refer to committee report or the speech of the Minister on thefloor of the House of the Parliament if there is any kind of ambiguity orincongruity in provision of an enactment. Further, it is quite vivid onwhat occasions and situations the Parliamentary Standing CommitteeReports or the reports of other Parliamentary Committees can be takennote of by the Court and for what purpose. Relying on the same for thepurpose of interpreting the meaning of the statutory provision where it isambiguous and unclear or, for that matter, to appreciate the backgroundof the enacted law is quite different from referring to it for the purposeof arriving at factual finding. That may invite contest, challenge, adispute and, if contest arises, the Court, in such circumstances, will becalled upon to rule on the same.118. In the case at hand, what is urged by the learned counsel forthe petitioners is that though no interpretation is involved, yet they canrefer to the report of the Parliamentary Standing Committee to establish

114SUPREME COURT REPORTS

Aa fact which they have pleaded and asserted in the writ petition.According to them, the committees are constituted to make the executiveaccountable and when the public interest litigation is preferred tosafeguard the public interest, the report assumes great significance andit is extremely necessary to refer to the same to arrive at the truth of thecontroversy. In such situation, they would contend that the question ofBaid does not relate to any kind of parliamentary privilege. It is the standof the petitioners that they do not intend to seek liberty from the Parliamentor the Parliamentary Committee to be questioned or cross examined. Infact, reliance of the report has nothing to do with what is protected bythe Constitution under Article 105. The court proceedings are independentCof the Parliament and based on multiple inputs, materials and evidenceand in such situation, the parties are at liberty to persuade the Court tocome to determination of facts and form an opinion in law at variancewith the parliamentary committee report. The learned counsel for thepetitioners would further submit that advancing submissions relying onthe report would not come within the scope of parliamentary privilege.D

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

119. The learned counsel for the petitioners propound that underSection 57(4) of the Evidence Act, the parliamentary standing committeereport can be judicially taken note of as such report comes within theambit of the said provision.

120. To appreciate the stand, it is necessary to scan the relevantsub-section (4) of Section 57 of the Evidence Act. It reads as follows:-

“57. Facts of which Court must take judicial notice:- TheCourt 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 thelegislatures established under any law for the time being in forcein Province or in the State;”

121. Section 57 is part of Chapter III of the Evidence Act whichdeals with “Facts which need not be proved”. Section 57 rests on theassumption that the facts scripted in the thirteen sub-sections are relevantunder any one or more Sections of Chapter II which deals with “relevancyof facts”. Thus, Section 57, by employing the words “shall”, casts anobligation upon the Courts to take judicial notice of the said facts. Section57, sub-section (4) of the Evidence Act casts an obligation on the Courtsto take judicial notice of the course of proceedings of Parliament.

122. This Court, in SoleTrustee Lok Shikshana Trust v.Commissioner of Income Tax, Mysore[95], has observed that Section57, sub-section (4) enjoins upon the Courts to take judicial notice of thecourse of proceedings of Parliament on the assumption that it is relevant.

123. There can be no dispute that parliamentary standingcommittee report being in the public domain is public document.Therefore, it is admissible under Section 74 of the Evidence Act andjudicial notice can be taken of such document as envisaged underSection 57(4) of the Evidence Act. There can be no scintilla of doubtthat the said document can be taken on record. As stated earlier, it canbe taken aid of to understand and appreciate statutory provision if it isunclear, ambiguous or incongruous. It can also be taken aid of toappreciate what mischief the legislative enactment intended to avoid.Additionally, it can be stated with certitude that there can be fair commenton the report and citizen in his own manner can advance criticism inrespect of what the report has stated. Needless to emphasise that theright to fair comment is guaranteed to the citizens. It is because freedomof speech, as permissible within constitutional parameters, is essentialfor all democratic institutions. Fair comments show public concern and,therefore, such comments cannot be taken exception to. That is left topublic opinion and perception on which the grand pillar of democracy isfurther strengthened. And, in all such circumstances, the question ofparliamentary privilege would not arise.

124. In the case at hand, the controversy does not end thereinasmuch as the petitioners have placed reliance upon the contents ofthe parliamentary standing committee report and the respondents submitthat they are forced to controvert the same. Be it clearly stated, thepetitioners intend to rely on the contents of the report and invite contest.In such situation, the Court would be duty bound to afford the 95 (1976) 1 SCC 254

Arespondents an opportunity of being heard in consonance with theprinciples of natural justice. This, in turn, would give rise to very peculiarsituation as the respondents would invariably be left with the option eitherto: (i) accept, without contest, the opinion expressed in the parliamentarystanding committee report and the facts stated therein; or (ii) contest thecorrectness of the opinion of the parliamentary standing committee reportBand the facts stated therein. In the former scenario, the respondents atthe 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 adjudicatethe contentious facts stated in the report. Ergo, whenever contest to afactual finding in PSC Report is likely and probable, the Court shouldCrefrain from doing so. It is one thing to say that the report being publicdocument is admissible in evidence, but it is quite different to allow achallenge.

125. It is worthy to note here that there is an intrinsic differencebetween parliamentary proceedings which are in the nature of statementDof Minister or of Mover of bill made in the Parliament for highlightingthe purpose of an enactment or, for that matter, parliamentary committeereport that had come into existence prior to the enactment of law anda contestable/conflicting matter of “fact” stated in the parliamentarycommittee report. It is the parliamentary proceedings falling within theformer category of which Courts are enjoined under Section 57, sub-Esection (4) to take judicial notice of, whereas, for the latter category ofparliamentary proceedings, the truthfulness of the contestable matter offact stated during such proceedings has to be proved in the mannerknown to law.

126. This again brings us to the hazardous zone wherein takingFjudicial notice of parliamentary standing committee reports for factualfinding will obviously be required to be proved for ascertaining the truthof contestable matter of fact stated in the said report.

127. Taking judicial notice of the Parliamentary StandingCommittee report can only be to the extent that such report exists. AsGalready stated, the said report can be taken aid of for understanding thestatutory provision wherever it is felt so necessary or to take cognizanceof historical fact that is different from contest. The word “contest”,according to Black’s Law Dictionary, means to make defence to anadverse claim in Court of law; to oppose, resist or dispute; to strive toHwin or hold; to controvert, litigate, call in question, challenge to defend.

This being the meaning of the word “contest”, the submission to adjudgethe lis on the factual score of the report is to be negatived.

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

128. Before we proceed to record our conclusions, it is necessaryto allude to various authorities cited by the petitioners herein highlightingthe occasions where this Court has referred to and taken note of variousParliamentary Committee reports. In Catering Cleaners of SouthernRailway v. Union of India and another[96], the catering cleaners of theSouthern Railway filed writ petition praying for abolition of the contractlabour system and their absorption as direct employees of the principalemployer, viz., the Southern Railway. This Court referred to theParliamentary Committee Report under the Chairmanship of K.P. Tewariwhich had dealt with the question of abolishing the contract labour systemand regularizing the services of the catering cleaners. The Committeehad,inter alia, recommended that the government should consider directemployment of catering cleaners by the Railway Administration to avoidtheir exploitation.

129. In State of Maharashtra v. Milind and others[97], the issuewas whether the tribe of ‘Halba-Koshtis’ were treated as ‘Halbas’ inthe specified areas of Vidarbha. This Court, in the said case, referred tothe report of Joint Parliamentary Committee which did not make anyrecommendation to include ‘Halba-Koshti’ in the Scheduled Tribes Order.Again, in Federation of Railway Officers Association (supra),thisCourt alluded to the reports and recommendations of several committeessuch as the Railways Reforms Committee in 1984 which recommendedthe formation of new four Zones; the Standing Committee Report ofParliament on Railway which recommended for creation of new zoneson the basis of work load, efficiency and effective management and theRakesh Mohan Committee Report which had suggested that theformation of additional zones would be of dubious merit and would addsubstantial cost and be of little value to the system.

130. In Ms. Aruna Roy and Others v. Union of India andothers[98],the education policy framed by NCERT was challenged by thepetitioners. This Court while dealing with the said issue, referred, in 96 (1987) 1 SCC 700 97 (2001) 1 SCC 4 98 (2002) 7 SCC 368

BCDE

Aextensio, to the Parliamentary committee report which had made severalrecommendations in this regard. After so referring to the report, theCourt was of the view that if the recommendations made by theParliamentary Committee are accepted by the NCERT and are soughtto be implemented, it cannot be stated that its action is arbitrary orunjustified.B

131. In M.C. Mehta v. Union of India and others[99],this Courtreferred to the report of the Standing Committee of Parliament onPetroleum & Natural Gas which expressed concern over the phenomenalrise of air pollution and made some recommendations. The Court, in thiscase, made it clear that it had mentioned the report only for indicatingCthat the Government was and is proactively supporting the reduction ofvehicular pollution by controlling the emission norms and complying withthe Bharat Stage standards.

132. In Lal Babu Priyadarshi v. Amritpal Singh[100], while dealingwith Trade Mark case under various sections of the Trade andDMerchandise Marks Act, 1958 [repealed by the Trade Marks Act, 1999(47 of 1999), this Court referred to the Eighth Report on the Trade MarksBill, 1993 submitted by the Parliamentary Standing Committee whichwas of the opinion that any symbol relating to Gods, Goddesses or placesof worship should not ordinarily be registered as trade mark.

133. The petitioners have also referred to other cases such asGujarat Electricity Board v. Hind Mazdoor Sabha andothers[101],Modern Dental College and Research Centre and othersv. State of Madhya Pradesh and others[102]and Krishan Lal Gera v.State of Haryana and others[103]wherein also this Court has made aFpassing reference to reports of the Parliament Standing Committees.

134. We have, for the sake of completeness, noted the decisionsrelied upon by the petitioners to advance their stand. But it is condign tomention here that in the abovereferred cases, the question of contest/challenge never emerged. In all the cases, the situation never arose thatwarranted any contest amongst the competing parties for arriving at aGparticular factual finding. That being the position, the said judgments, in

99 (2017) 7 SCC 243 100 (2015) 16 SCC 795 101 (1995) 5 SCC 27 102 (2016) 7 SCC 353H 103 (2011) 10 SCC 529

our considered opinion, do not render any assistance to the controversyin question.

135. We have distinguished the said decisions, as we are disposedto think that party can always establish his case on the materials onrecord and the Court can independently adjudicate the controversy withoutallowing challenge to Parliamentary Standing Committee report. Wethink so as the Court has constitutional duty to strike delicate balancebetween the legislature and judiciary. It is more so when the issue doesnot involve fundamental right that is affected by parliamentary action.In such situation, we may deal with the concept of jurisprudentialfoundational principle having due regard to constitutional conscience.The perception of self-evolved judicial restraint and the idea ofjurisprudential progression has to be juxtaposed for seemly balance.There is no strait-jacket formula for determining what constitutes judicialrestraint and judicial progressionism. Sometimes, there is necessity forthe Courts to conceptualise path that can be wise middle path. Themiddle course between these two views is the concept of judicialengagement so that the concept of judicial restraint does not take thecolour of judicial abdication or judicial passivism. Judicial engagementrequires that the Courts maintain their constitutional obligation to remainthe sentinel on qui vive. It requires vigilant progressive judiciary forthe rights and liberties of the citizens to be sustained. Thus, as long as adecision of Court is progressive being in accord with the theory ofjudicial engagement, the approach would be to ensure the proper dischargeof duty by the Constitutional Courts so as to secure the inalienable rightsof the citizens recognized by the Constitution. Constitutional Courtcannot abdicate its duty to allow injustice to get any space or not allowreal space to principle that has certain range of acceptability. StradfordC.J., speaking the tone and tenor in Jajbhay v Cassim[104],has observed:-“Now the Roman-Dutch law, which we must apply, is livingsystem capable of growth and development to allow adaptation tothe 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 aCourt of law to alter the law; its function is to elucidate, expoundand apply the law. But it would be idle to deny that in the processof the exercise of those functions rules of law are slowly andbeneficiallyevolved.”

104 1939 AD 537at p 542

CDEF

136. In Miranda v. Arizona[105],the Supreme Court of UnitedStates observed:-

‘That the Court’s holding today is neither compelled nor evenstrongly suggested by the language of the Fifth Amendment, is atodds with American and English legal history, and involves adeparture from long line of precedent does not prove either thatthe Court has exceeded its powers or that the Court is wrong orunwise in its present reinterpretation of the Fifth Amendment. Itdoes, however, underscore the obvious — that the Court has notdiscovered or found the law in making today’s decision, nor has itderived it from some irrefutable sources; what it has done is tomake new law and new public policy in much the same way thatit has in the course of interpreting other great clauses of theConstitution. This is what the Court historically has done. Indeed,it is what it must do, and will continue to do until and unless thereis some fundamental change in the constitutional distribution ofgovernmental powers.”

137. In the Indian context, this Court has recognized thecomprehensive, progressive and engaging role of Constitutional Courtsin catena of judgments starting from Lakshmi Kant Pandey v. Unionof India[106],Vishaka and others v. State of Rajasthan and others[107],Prakash Singh and others v. Union of India and others[108], CommonCause (A Regd. Society) v. Union of India[109]and Shakti Vahini v.Union of India and others[110]. In all these judgments, the dynamic andspirited duty of the Supreme Court has been recognized and it has beenhighlighted that this Court ought not to shy away from its primaryresponsibility of interpreting the Constitution and other statutes in amanner that is not only legally tenable but also facilitates the progressand development of the avowed purpose of the rights-orientedConstitution. The Constitution itself being dynamic, lively and everchanging document adapts to the paradigm of epochs. That being thesituation, it is also for this Court to take fresh look and mould theexisting precepts to suit the new emerging situations. Therefore, the

105 384 U.S. 436 (1966) 106 (1984) 2 SCC 244 107 (1997) 6 SCC 241 108 (2006) 8 SCC 1 109 2018 (4) SCALE 1H 110 2018 (5) SCALE 51

Constitutional Courts should always adopt progressive approach anddisplay dynamic and spirited discharge of duties regard being had tothe concepts of judicial statesmanship and judicial engagement, for theysubserve the larger public interest. In the case at hand, the constitutionalobligation persuades us to take the view that the Parliamentary StandingCommittee Report or any Parliamentary Committee Report can be takenjudicial notice of and regarded as admissible in evidence, but it can neitherbe impinged nor challenged nor its validity can be called in question.

Q. Conclusions

138. In view of the aforesaid analysis, we answer the referredquestions in the following manner:-

(i) Parliamentary Standing Committee report can be taken aid offor the purpose of interpretation of statutory provision whereverit is so necessary and also it can be taken note of as existence ofa historical fact.

(ii) Judicial notice can be taken of the Parliamentary StandingCommittee report under Section 57(4) of the Evidence Act and itis admissible under Section 74 of the said Act.

(iii) In litigation filed either under Article 32 or Article 136 of theConstitution of India, this Court can take on record the report ofthe Parliamentary Standing Committee. However, the reportcannot be impinged or challenged in court of law.

(iv) Where the fact is contentious, the petitioner can always collectthe facts from many source and produce such facts by way ofaffidavits, and the Court can render its verdict by way ofindependent adjudication.

(v) The Parliamentary Standing Committee report being in thepublic domain can invite fair comments and criticism from thecitizens as in such situation, the citizens do not really commentupon any member of the Parliament to invite the hazard of violationof parliamentary privilege.

139. The reference is answered accordingly.

140. Let the Writ Petitions be listed before the appropriate Benchfor hearing.

ADR. D. Y. CHANDRACHUD, J.

This judgment has been divided into sections to facilitate analysis.They are:

Reference to the Constitution Bench

Submissions

The Constitution

Parliamentary Standing Committees

Parliamentary privilege

E.1 UK Decisions

CE.2 India

Separation of powers : nuanced modern doctrine

functional relationship

Conclusion

DA Reference to the Constitution Bench

1. Two public interest petitions instituted before this Court underArticle 32 of the Constitution in 2012 and 2013 have placed into focusthe process adopted for licensing vaccines[1] to prevent cervical cancer.The petitioners allege that the process of licensing was not preceded byEadequate clinical trials to ensure the safety and efficacy of the vaccines.Nearly twenty four thousand adolescent girls are alleged to have beenvaccinated in Gujarat and before its bifurcation, in Andhra Pradeshwithout following safeguards. The trials are alleged to have beenconducted under the auspices of project initiated by the Sixth respondent.The drugs are manufactured and marketed by the Seventh and EighthFrespondents. Each of them produces pharmaceuticals. The petition callsinto question the role of the Drugs Controller General of India and theIndian Council of Medical Research. The administration of the vaccineis alleged to have resulted in serious health disorders. Deaths werereported.G2. On 12 August 2014, Bench of two judges formulated thequestions which would have to be addressed in the course of theproceedings.[2] They are:

1 Human Papillomavirus (HPV)

2 Writ Petition (Civil) No. 558 of 2012

KALPANA MEHTA v. UNION OF INDIA

“(i) Whether before the drug was accepted to be used as vaccinein India, the Drugs Controller General of India and the ICMRhad followed the procedure for said introduction?

(ii) What is the action taken after the Parliamentary Committeehad submitted the 72nd Report on 30.8.2013?

(iii) What are the reasons for choosing certain places in Gujaratand Andhra Pradesh?

(iv) What has actually caused the deaths and other ailments whohad been administered the said vaccine?

(v) Assuming this vaccine has been administered, regard beinghad to the nature of the vaccine, being not an ordinary one,what steps have been taken for monitoring the same by thecompetent authorities of the Union of India, who are concernedwith the health of the nation as well as the State Governmentswho have an equal role in this regard?

(vi) The girls who were administered the vaccine, whether properconsent has been taken from their parents/guardians, as wehave been apprised at the Bar that the young girls had notreached the age of majority?

(vii) What protocol is required to be observed/followed, assumingthis kind of vaccination is required to be carried out?”

3. At the hearing, the petitioners relied upon the 81[st] Report of theParliamentary Standing Committee dated 22 December 2014. Thepetitioners sought to place reliance on the Report so as to enable theCourt to be apprised of the facts and to facilitate its conclusions anddirections. This was objected to.

4. The issue which arose before the Court was whether reportof Parliamentary Standing Committee can be relied upon in publicinterest litigation under Article 32 or Article 226. If it could be advertedto, then an allied issue was the extent to which reliance could be placedupon it and its probative value. The then Attorney General for India, inresponse to request for assistance, submitted that reports ofParliamentary Standing Committees are at best an external aid toconstruction, to determine the surrounding circumstances or historicalfacts for understanding the mischief sought to be remedied by legislation.The Union government urged that reports of Parliamentary Standing

ACommittees are meant to guide the functioning of its departments andare precursor to debates in Parliament. However, those reports (itwas urged) cannot be utilized in court nor can they be subject to contestbetween litigating parties.

5. In an order dated 5 April 2017, two judge Bench of this CourtBadverted to Articles 105 and 122 of the Constitution and observed thus:

“69. The purpose of referring to the aforesaid Articles is that whileexercising the power of judicial review or to place reliance on thereport of the Parliamentary Standing Committee, the doctrine ofrestraint has to be applied by this Court as required under theCConstitution. What is argued by the learned counsel for thepetitioners is that there is no question of any kind of judicial reviewfrom this Court or attributing anything on the conduct of any ofthe members of the Committee, but to look at the report forunderstanding the controversy before us. The submission “lookingat the report,” as we perceive, is nothing but placing relianceDthereupon. The view of member of Parliament or member ofthe Parliamentary Standing Committee who enjoys freedom ofspeech and expression within the constitutional parameters andthe rules or regulations framed by Parliament inside Parliamentor the Committee is not to be adverted to by the court in lis.”[3]

E6. The referring order notes that when mandamus is sought, theCourt has to address the facts which are the foundation of the case andthe opposition, in response. If Court were to be called upon to perusethe report of Parliamentary Standing Committee, contestant to thelitigation may well seek to challenge it. Such challenge, according toFthe Court, in the form of “an invitation to contest” the report of aParliamentary Committee “is likely to disturb the delicate balance thatthe Constitution provides between the constitutional institutions”. Such acontest and adjudication would (in that view) be contrary to the privilegesof Parliament which the Constitution protects. Hence according to theCourt:G“73…we are prima facie of the view that the ParliamentaryStanding Committee report may not be tendered as documentto augment the stance on the factual score that particular activityis unacceptable or erroneous. ”

3 Id, at pages 320-321H

substantial question involving the interpretation of the Constitutionhaving arisen, two questions have been referred to the Constitution Benchunder Article 145(3):

“(i) Whether in litigation filed before this Court either underArticle 32 or Article 136 of the Constitution of India, the Courtcan refer to and place reliance upon the report of the ParliamentaryStanding Committee; and

(ii) Whether such report can be looked at for the purpose ofreference and, if so, can there be restrictions for the purpose ofreference regard being had to the concept of parliamentaryprivilege and the delicate balance between the constitutionalinstitutions that Articles 105, 121 and 122 of the Constitutionconceive?.”[4]

Submissions

7. Leading the submissions on behalf of the petitioners, Mr HarishSalve, learned Senior Counsel underscored the importance of threeconstitutional principles:

(i) Privileges of Parliament;

(ii) Comity of institutions; and

(iii) Separation of powers.

Based on them, the submission is that reference to what transpiresin co-equal constitutional institution must be circumspect and consistentwith due deference to and comity between institutions. Freedom of speechand expression is implicit in the working of every institution and it is thatinstitution 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 falsehood in Parliament is punishable by thatinstitution alone. It has been urged that if what is stated in report of aParliamentary Standing Committee were to be impeached in court oflaw, that would affect the control of the Committee and of Parliamentitself. The functions performed by Parliament and by the judiciary astwo co-equal branches are, it is urged, completely different. Parliamentarybusiness is either for the purpose of enforcing accountability of thegovernment or to enact legislation. The function of judicial institutions is

Aadjudicatory. Courts resolve lis on objective satisfaction and have aduty to act judicially. Courts would not, it has been urged, receive asevidence of facts any material whose truth or integrity cannot be assailedin court.

8. On the above conceptual foundation, Mr Salve urged that theBreport of Parliamentary Standing Committee can be relied upon in ajudicial proceeding in two exceptional situations:

(i) Where it becomes necessary for the court to examine thelegislative history of statutory provision;

(ii) As source from which the policy of the government, asCreflected in the statements made by Minister before theHouse can be discerned; and

(iii) Reports of Parliamentary Standing Committees are meantfor consideration before Parliament and can only be regardedas “considered advice” to the House.D

Except in the two situations enumerated above, no petition seekinga mandamus can be brought before the court on the basis of such areport for the reason that (i) No right can be founded on therecommendation of House Committee; and (ii) Relying on such reportmay result in challenge before the court, impinging upon ParliamentaryEprivileges.

9. Mr K K Venugopal, the learned Attorney General for India hassupported the adoption of rule of exclusion, based on the privileges ofthe legislature, separation of powers and as matter of textualinterpretation of the Constitution. In his submission:

I Committees of Parliament being an essential adjunct toParliament, and their reports being for the purpose of advisingand guiding Parliament in framing laws and the executive forframing policies, it would be breach of privilege of Parliamentto judicially scrutinize and/or review these reports for anyGpurpose whatsoever;

II The broad separation of powers, which is part of the basicstructure of the Constitution of India, would prevent Courtsfrom subjecting the reports of Parliamentary StandingCommittees to scrutiny or judicial review; and

III conjoint reading of Articles 105 and 122 of the Constitutionwould establish that, expressly or by necessary implication,there is bar on the Courts from scrutinizing or judiciallyreviewing the functioning or reports of the Committees ofParliament.

10. Refuting the submissions which have been urged by theAttorney General and on behalf of the pharmaceutical companies, Mr.Colin Gonsalves, learned Senior Counsel urges that there can be noobjection to reliance being placed on the Report of ParliamentaryStanding Committee where (as in the present case) there is no attempt

(i) to criticize Parliament;

(ii) to summon witness; or

(iii) to breach privilege of the legislating body.

The Report of Parliamentary Standing Committee is (it is urged)relied upon only for the court to seek guidance from it. The court mayderive such support in whichever manner it may best regard in the interestof justice, to advance cause which has been brought in social actionlitigation. According to Mr Gonsalves, the core of the submission (urgedby Mr Salve) is that because his clients object to the findings in theReport, it becomes contentious issue. Mr Gonsalves submits that thisCourt should not allow what in substance is an argument for black outagainst 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 containedin the Report as conclusive except those that are permitted by Section57 of the Indian Evidence Act 1872. No mandamus is sought that therecommendations of the Parliamentary Committee be enforced. TheCourt, it has been urged, will not be invited to comment upon the Reporteven if it were not to agree with the contents of the Report. LearnedCounsel urged that the legislative function of Parliament is distinct fromthe oversight which it exercises over government departments. An issueof parliamentary privileges arises when the court makes member ofParliament or of Parliamentary Committee liable in civil or criminalaction for what is stated in Parliament. Such is not the position here. MrGonsalves submitted that in significant respects, our Constitution marksa historical break from the English Parliamentary tradition. India hasadopted the doctrine of constitutional supremacy and not Parliamentarysovereignty, as in the UK. Hence, cases decided under the English

DEF

ACommon Law cannot be transplanted, without regard to context, in Indianjurisprudence on the subject. The unrestrained use of parliamentaryprivileges, it has been urged, stands modified in the Indian context, whichis governed by constitutional supremacy. In matters involving publicinterest or issues of national character, both the institutions – Parliamentand the courts – must act together. As matter of fact, Parliament hasBplaced the Report of its Standing Committee in the public domain. It isironical, Mr Gonsalves urges, that in the present case, it is the executivewhich seeks to protect itself from disclosure in the guise of parliamentaryprivileges. Finally, it has been urged that the public interest jurisdiction isnot adversarial and constitutes distinctly Indian phenomenon. WhereCthe fulfilment and pursuit of constitutional goal, national purpose orpublic interest is in issue, both Parliament and the judiciary will act incomity. No issue arises here in relation to the separation of powers orbreach of Parliamentary privilege. On the contrary, it has been submittedthat the approach of the respondents is not in accordance with the marchof transparency in our law.D11. Mr Anand Grover, learned Senior Counsel submitted that ifthere is no dispute that certain statement was made before Parliamentor, as the case may be, Parliamentary Standing Committee, such astatement can be relied upon as fact of it being stated in Parliament.The truth of the statement is, in the submission of the learned SeniorECounsel, another and distinct issue. The Report is uncontentious not asregards the truth of its contents but of it having been made. The court inthe exercise of its power of judicial review will not hold that an inferencedrawn by Parliamentary Committee is wrong. But the court cancertainly look at statement where there is no dispute of it having been

Fmade.

12. Mr Shyam Divan and Mr Gourab Banerji, learned SeniorCounsel have broadly pursued the same line of argument as the learnedAttorney General for India and Mr Harish Salve.

The ConstitutionG

13. Articles 105, 118, 119 and 121 are comprised in Part V of theConstitution which deals with the Union and form part of Chapter II,which deals with Parliament. Article 105 is extracted below:

“105.(1) Subject to the provisions of this Constitution and to therules and standing orders regulating the procedure of Parliament,Hthere shall be freedom of speech in Parliament.

(2) No member of Parliament shall be liable to any proceedings inany court in respect of anything said or any vote given by him inParliament or any committee thereof, and no person shall be soliable in respect of the publication by or under the authority ofeither House of Parliament of any report, paper, votes orproceedings.

(3) In other respects, the powers, privileges and immunities ofeach House of Parliament, and of the members and the committeesof each House, shall be such as may from time to time be definedby Parliament by law, and, until so defined, [shall be those of thatHouse and of its members and committees immediately beforethe 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 relationto persons who by virtue of this Constitution have the right tospeak in, and otherwise to take part in the proceedings of, Houseof Parliament or any committee thereof as they apply in relationto members of Parliament.”

14. The first major principle which emerges from Article 105 isthat it expects, recognizes and protects the freedom of speech inParliament. Stated in sentence, the principle enunciates vital normfor the existence of democracy. Parliament represents collectively,through the representative character of its members, the voice andaspirations of the people. Free speech within the Parliament is crucialfor democratic governance. It is through the fearless expression oftheir views that Parliamentarians pursue their commitment to those whoelect them. The power of speech exacts democratic accountability fromelected governments. The free flow of dialogue ensures that in framinglegislation and overseeing government policies, Parliament reflects thediverse views of the electorate which an elected institution represents.

15. The Constitution recognizes free speech as fundamentalright in Article 19(1)(a). separate articulation of that right in Article105(1) shows how important the debates and expression of view inParliament have been viewed by the draftspersons. Article 105(1) is nota simple reiteration or for that matter, surplusage. It embodies thefundamental value that the free and fearless exposition of critique in

DEF

AParliament is the essence of democracy. Elected members of Parliamentrepresent the voices of the citizens. In giving expression to the concernsof citizens, Parliamentary speech enhances democracy. Article 105(1)emphasizes free speech as an institutional value, apart from it being apart of individual rights. Elected members of the legislature continue towield that fundamental right in their individual capacity. Collectively, theirBexpression of opinion has an institutional protection since the words whichthey speak are spoken within the portals of Parliament. This articulatedmajor premise is however subject to the provisions of the Constitutionand is conditioned by the procedure of Parliament embodied in its rulesand standing orders. The recognition in clause (1) that there shall beCfreedom of speech in Parliament is effectuated by the immunity conferredon Members of Parliament against being liable in court of law foranything said or for any vote given in Parliament or committee. Similarly,a person who publishes report, paper, votes or proceedings under theauthority of Parliament is protected against liability in any court. In

other respects – that is to say, on matters other than those falling underDclause (1) and (2), Parliament has been empowered to define the powers,privileges and immunities of each of its Houses and of its members andcommittees. Until Parliament does so, those powers, privileges andimmunities are such as existed immediately before the enforcement ofthe 44[th] amendment to the Constitution[5]. Clause (4) of Article 105 widensEthe scope of the protection by making it applicable “in relation to persons”who have right to speak in or to take part in the proceedings before theHouse or its committees. The protection afforded to Members ofParliament is extended to all such persons as well. Committees of theHouses of Parliament are established by and under the authority ofParliament. They represent Parliament. They are comprised withinFParliament 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 theGconduct of its business.(2) Until rules are made under clause (1), the rules of procedureand standing orders in force immediately before thecommencement of this Constitution with respect to the Legislature

5 The Constitution (44th amendment) Act, 1978 came into force from 20 June, 1979.

of the Dominion of India shall have effect in relation to Parliamentsubject to such modifications and adaptations as may be madetherein by the Chairman of the Council of States or the Speakerof the House of the People, as the case may be.

(3) The President, after consultation with the Chairman of theCouncil of States and the Speaker of the House of the People,may make rules as to the procedure with respect to joint sittingsof, and communications between, the two Houses.

(4) At joint sitting of the two Houses the Speaker of the Houseof the People, or in his absence such person as may be determinedby rules of procedure made under clause (3), shall preside.”

The procedure and conduct of business of Parliament are governedby the rules made by each House. The rule making authority is subjectonly to the provisions of the Constitution. Until rules are framed, theprocedure of Parliament was to be governed by the rules of procedureand Standing Orders which applied to the legislature of the Dominion ofIndia immediately before the commencement of the Constitution (subjectto adaptations and modifications). Rules of procedure for joint sittingsof the two Houses of Parliament and in regard to communicationsbetween them are to be framed by the President in consultation with theChairman of the Rajya Sabha and the Speaker of the Lok Sabha.

17. Article 119 provides for regulation by law of the procedure inParliament in relation to financial business. Article 119 provides thus:

“119.Parliament may, for the purpose of the timely completion offinancial business, regulate by law the procedure of, and theconduct of business in, each House of Parliament in relation toany financial matter or to any Bill for the appropriation of moneysout of the Consolidated Fund of India, and, if and so far as anyprovision of any law so made is inconsistent with any rule madeby House of Parliament under clause (1) of article 118 or withany rule or standing order having effect in relation to Parliamentunder clause (2) of that article, such provision shall prevail.”

Article 119 thus embodies special provision which enablesParliament to regulate the procedure for and conduct of business ineach House in relation to financial matters or for appropriation of moniesfrom the Consolidated Fund.

18. Article 122 contains bar on courts inquiring into the validityof any proceedings of Parliament on the ground of an irregularity ofprocedure:

“122.(1) The validity of any proceedings in Parliament shall notbe called in question on the ground of any alleged irregularity ofBprocedure.

(2) No officer or member of Parliament in whom powers arevested by or under this Constitution for regulating procedure orthe conduct of business, or for maintaining order, in Parliamentshall be subject to the jurisdiction of any court in respect of theexercise by him of those powers.”C

Article 122 protects the proceedings in Parliament being questionedon the ground of an irregularity or procedure. In similar vein, Memberof Parliament or an officer vested with authority under the Constitutionto regulate the procedure or the conduct of business (or to maintainorder) in Parliament is immune from being subject to the jurisdiction ofDany Court for the exercise of those powers. Those who perform thetask – sometimes unenviable – of maintaining order in Parliament arealso 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. TheEcorresponding provisions in regard to State Legislatures are contained inArticles 194, 208, 209 and 212.

20. The fundamental principle which the Constitution embodies isin terms of its recognition of and protection to the freedom of speech inParliament.

FFreedom of speech has been entrenched by conferring animmunity against holding Member of Parliament liable for what hasbeen spoken in Parliament or for vote which has been tendered. Thefreedom to speak is extended to other persons who have right to speakin or take part in the proceedings of Parliament. Parliament is vestedwith the authority to regulate its procedures and to define its powers,Gprivileges and immunities. The same protection which extends toParliamentary proceedings is extended to proceedings in or before theCommittees constituted by each House. Parliament has been vestedwith complete and exclusive authority to regulate its own procedureand the conduct of its business.

21. While making the above provisions, the Constitution hascarefully engrafted provisions to ensure institutional comity betweenParliament and the judiciary. Under Article 121, the conduct of Judgeof the Supreme Court or of High Court in the discharge of dutiescannot be discussed in Parliament (except upon motion for removal).Article 211 makes similar provision in regard to the state legislatures.

Parliamentary Standing Committees

22. Parliamentary Committees exist both in the Westminster formof government in the United Kingdom as well in the Houses of Parliamentin India. In the UK, Select Committees have emerged as instrumentsthrough which Parliament scrutinizes the policies and actions ofgovernment and enforces accountability of government and its officers.Select committees are composed of specifically nominated members ofParliament and exercise the authority which the House delegates tothem. The role of select committees has been set forth in Erskine May’sTreatise on The Law, Privileges, Proceedings and Usage ofParliament[6] :

“Select committees are appointed by the House to perform widerange of functions on the House’s behalf. Most notably they havebecome over recent years the principal mechanism by which theHouse discharges its responsibilities for the scrutiny of governmentpolicy and actions. Increasingly this scrutiny work has becomethe most widely recognized and public means by which Parliamentholds government Ministers and their departments to account.”

The scope of deliberations or inquiries before Select Committeeis defined in the order by which the committee is appointed. When Billis referred to Select Committee, the Bill constitutes the order ofreference[7]. Select committees are microcosm of the House. Duringthe course of their work, Select Committees rely upon documentary andoral evidence[8]:

“Once received by the committee as evidence, papers preparedfor committee become its property and may not be published

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.

Awithout the express authority of the committee. Some committeeshave agreed to resolution at the beginning of an inquiry authorizingwitnesses to publish their own evidence.”

Evidence which has been collected during the course of an inquiryis published with the report of the committee[9]:B

“It is usual practice of committees to publish the evidence whichthey have taken during the course of an inquiry with the report towhich the evidence is relevant. In the case of longer inquiries, theevidence may be separately published during the course of theinquiry. In such cases, however, that evidence may be publishedCagain with the report. Additionally, committees may take evidencewith no intention of producing subsequent report and publish itwithout comment.”

Select committee decides when to publish any report which ithas agreed[10].DArticle 105 of the Indian Constitution recognizes committees ofthe Houses of Parliament. Rules of Procedure of the Lok Sabha and theRajya Sabha framed under Article 118(1) of the Constitution inter aliaprovide for the organization and working of these committees[11].

23. The rules governing procedure and the conduct of business inEthe Rajya Sabha provide for the constitution of the committees of theHouse. Chapter IX of the Rules contains provisions relating to legislation.Provisions have been made for Bills which originate in the Rajya Sabhaand for those which originate in the Lok Sabha and are transmitted tothe Rajya Sabha. Under Rule 72, members of Select Committee for aFBill are appointed by the Rajya Sabha when motion that the Bill bereferred to Select Committee is made. Rule 84 empowers the SelectCommittee to require the attendance of witnesses or the production ofpapers or records. The Select Committee can hear expert evidence andrepresentatives of special interests affected by the measure. Documentssubmitted to the Committee cannot be withdrawn or altered without itsGknowledge and approval. The Select Committee, under Rule 85, is 9 Erskine May, at page 825.

10 Erskine May, at page 838

11 Rules 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),H(published by the Secretary General, 9[th] edn., August 2016).

empowered to decide upon its procedure and the nature of questionswhich it may address to witness called before it. Rule 86 provides forthe printing and publication of evidence and empowers the Committeeto direct that the evidence or summary be laid on the table. Evidencetendered before the Select Committee can only be published after it hasbeen laid on the table. The Select Committee prepares its report on theBill referred to it, under Rule 90. Under Rule 91, the report of the SelectCommittee on Bill, together with minutes of dissent, is presented to theRajya Sabha by the Chairperson of the Committee. Under Rule 92, theSecretary General must print every report of Select Committee. Thereport together with the Bill proposed by the Select Committee has to bepublished in the Gazette. The rules contemplate the procedure to befollowed in the Rajya Sabha for debating and discussing the report andfor considering amendments, leading up to the eventual passage of theBill. In manner similar to reference of Bills originating in the RajyaSabha to Select Committees, Bills which are transmitted from the LokSabha to the Rajya Sabha may be referred to Select Committee underRule 125, if motion for that purpose is carried.

24. Chapter XXII of the Rules contains provisions in regard toDepartment related Parliamentary Standing Committees. Rule 268stipulates that there shall be Parliamentary Standing Committees relatedto Ministries/Departments. The Third schedule elucidates the name ofeach Committee and the Ministries/Departments which fall within itspurview. Under Rule 269, each such Committee is to consist of notmore than 31 members: 10 to be nominated by the Chairperson from theMembers of the Rajya Sabha and 21 to be nominated by the Speakerfrom the Members of the Lok Sabha. Rule 270 specifies the functionsof the Standing Committees:

“270. Functions

Each of the Standing Committees shall have the followingfunctions, namely:-

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

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

A(c) to consider the annual reports of the Ministries/Departmentsand report thereon; and

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

BProvided that the Standing Committees shall not consider mattersof 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 member may record aCdissent. The report of the Committee is presented to the Houses ofParliament. Under Rule 275, provisions applicable to Select Committeeson Bills apply mutatis mutandis to the Standing Committees. Rule 277indicates that the report of Standing Committee is to have persuasivevalue and is treated as advice to the House:D“277. Reports to have persuasive value

The report of Standing Committee shall have persuasive valueand shall be treated as considered advice given by the Committee.”

Department related Parliamentary Standing Committees areCommittees of the Houses of Parliament. The Committees can regulateEtheir procedure for requiring the attendance of persons and for theproduction of documents. The Committees can hear experts or specialinterests. These Committees ensure parliamentary oversight of thework of the ministries/departments of government. As part of thatfunction, each Committee considers demands for grants, examines BillsFwhich 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 theseCommittees are published and presented to the Houses of Parliament.They have persuasive value and are advice given by the Committee toParliament.G

25. Besides the Department related Standing Committees, thereis General Purposes Committee (Chapter XXIII) whose function is toconsider and advise on matters governing the affairs of the House,referred by the Chairperson. Chapter XXIV provides for the constitutionof Committee on Ethics to overseeH

“the moral and ethical conduct” of members, prepare code ofconduct, examine cases of alleged breach and to tender advise tomembers on questions involving ethical standards.

Parliamentary privilege

E.1 UK Decisions

26. In the UK, body of law has evolved around the immunitywhich is afforded to conduct within or in relation to statements made toParliament against civil or criminal liability in court of law. The commonlaw also affords protection against the validity of report of SelectCommittee being challenged in court.

27. Article 9 of the Bill of Rights, 1689 declares that:

“..That the freedom of speech and debates or proceedings inParliament, ought not to be impeached or questioned in any courtor place out of Parliament…”

Construed strictly, the expression “out of Parliament” willeffectively squelch any discussion of the proceedings of Parliament,outside it. This would compromise to the need for debate and discussionon matters of governance in democracy. Hence, there has been aneffort to bring sense of balance: balance which will ensure freespeech within Parliament but will allow free expression of views amongcitizens. Both are essential to the health of democracy.

Article 9 has provided the foundation for line of judicial precedentin the English Courts. In 1884, the principle was formulated In Bradlaughv Gossett[12]:

“The House of Commons is not subject to the control of HerMajesty’s Courts in its administration of that part of the Statutelaw which has relation to its internal procedure only. What is saidor done within its walls cannot be inquired into court of law. Aresolution of the House of Commons cannot change the law ofthe land. But court of law has no right to inquire into the proprietyof resolution of the House restraining member from doingwithin the walls of the House itself something which by the generallaw of the land he had right to do.”

In Dingle v Associated Newspapers Ltd[13], the aboveformulation was held to constitute “a clear affirmation of the exclusive 12 (1884) 12 Q.B.D. 271 13 (1960) 2 Q.B. 405

Aright of Parliament to regulate its own internal proceedings”. Applyingthat principle, the Queen’s Bench Division ruled that the report of aSelect Committee of the House of Commons could not be impugnedoutside Parliament. This principle was applied in Church of Scientologyof California v Johnson-Smith[14], when an action for libel was broughtagainst Member of Parliament for statement made during the courseBof television interview. In order to refute the defendants’ plea of faircomment, the plaintiff sought to prove malice by leading evidence ofwhat had taken place in Parliament. Rejecting such an attempt, the courtadverted to the following statement of principle in Blackstone:

“The whole of the law and custom of Parliament has its originCfrom this one maxim, “that whatever matter arises concerningeither House of Parliament ought to be examined, discussed, andadjudged in that House to which it relates, and not elsewhere.”Reiterating that principle, the court held:

D“…what is said or done in the House in the course of anyproceedings there cannot be examined outside Parliament for thepurpose of supporting cause of action even though the cause ofaction itself arises out of something done outside the House.”

The decision involved libel action brought against Member of

EParliament for statement made outside. The court rejected an attemptto rely upon what was stated in Parliament to establish case of maliceagainst the defendant.

28. In Pepper(Inspector of Taxes) v Hart[15], Lord Browne-Wilkinson held for the House of Lords that there was valid reason torelax the conventional rule of exclusion under which reference toFParliamentary material, as an aid to statutory construction, was notpermissible. The learned Law Lord held:

“In my judgment, subject to the questions of the privileges of theHouse of Commons, reference to Parliamentary material shouldbe permitted as an aid to the construction of legislation which isGambiguous or obscure or the literal meaning of which leads to anabsurdity. Even in such cases references in court to Parliamentarymaterial should only be permitted where such material clearly

14 (1972) 1 Q.B. 522 15 (1992) 3 W.L.R. 1032H

KALPANA MEHTA v. UNION OF INDIA

[DR. D. Y. CHANDRACHUD, J.]

discloses the mischief aimed at or the legislative intention lyingbehind the ambiguous or obscure words.”

Holding that such relaxation would not involve the court criticizingwhat has been said in Parliament since the court was only giving effectto the words used by the Minister, the court held that the exclusionaryrule should be relaxed to permit reference to Parliamentary materialswhere:

“(a) legislation is ambiguous or obscure, or leads to an absurdity;(b) the material relied upon consists of one or more statements bya Minister or other promoter of the Bill together if necessary withsuch other Parliamentary material as is necessary to understandsuch statements and their effect; (c) the statements relied uponare clear.”

29. The decision of the Privy Council in Richard William Prebble

v Television New Zealand (“Prebble”)[16] arose from case where,in television programme transmitted by the defendant, allegations werelevelled against the Government of New Zealand, involving the sale ofstate owned assets to the private sector while the plaintiff was the Ministerof the department. In his justification, the defendant alleged that theplaintiff had made statements in the House calculated to mislead. LordBrowne-Wilkinson held that the defendant was precluded fromquestioning statement made by the plaintiff before the House ofParliament. The principle was formulated thus:

“In addition to article 9 itself, there is long line of authority whichsupports wider principle, of which article 9 is merely onemanifestation, viz. that the courts and Parliament are both astuteto recognize their respective constitutional roles. So far as thecourts are concerned they will not allow any challenge to be madeto what is said or done within the walls of Parliament inperformance of its legislative functions and protection of itsestablished privileges: Burdett v. Abbot (1811) 14 East 1; Stockdalev. Hansard (1839) 9 Ad. & EI. 1; Bradlaugh v. Gossett (1884) 12Q.B.D. 271; Pickin v. British Railways Board (1974) A.C. 765;Pepper v. Hart (1993) A.C. 593. As Blackstone said in hisCommentaries on the Laws of England, 17[th] ed. (1830), vol. 1,p.163:

‘the whole of the law and custom of Parliament has its originfrom this one maxim, ‘that whatever matter arises concerningeither House of Parliament, ought to be examined, discussed,and adjudged in that House to which it relates, and notelsewhere.”

BThe Privy Council held that cross-examination based on theHansard was impermissible.

In the course of its decision in Prebble, the Privy Council advertedto an Australian judgment of the New South Wales Supreme Court inReg. v Murphy (“Murphy”)[17] which had allowed witness to beCcross examined on the basis of evidence given to Select Committee onthe ground that Article 9 did not prohibit cross-examination to show thatthe statement of the witness before the committee was false. In order toovercome the situation created by the decision, the Australian legislatureenacted the Parliamentary Privileges, Act 1987. Section 16(3) introducedthe following provisions:D

“(3) In proceedings in any court or tribunal, it is not lawful forevidence to be tendered or received, questions asked or statements,submissions or comments made, concerning proceedings inParliament, by way of, or for the purpose of: (a) questioning orrelying on the truth, motive, intention or good faith of anythingEforming part of those proceedings in Parliament; (b) otherwisequestioning or establishing the credibility, motive, intention or goodfaith of any person; or (c) drawing, or inviting the drawing of,inferences or conclusions wholly or partly from anything formingpart 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”.ThePrivy Council held that the Australian view in Murphy was notcorrect, so far as the rest of the Commonwealth is concerned, becauseit was in conflict with long line of authority that courts will not allowGany challenge to what is said or done in Parliament.

The Defamation Act, 1996 (UK) contained provision in Section13 under which an individual litigant in defamation case could waiveParliamentary privilege. The report of the Joint Committee observedthat the provision “undermined the basis of privilege: freedom of speechH 17 (1986) 64 A.L.R. 498

was the privilege of the House as whole and not of the individualMember in his or her own right, although an individual Member couldassert and rely on it.” The waiver provision was deleted on the groundthat the privilege belongs to the House and not to an individual member.

The impact of the provisions of Section 13 of the DefamationAct, 1996 was dealt with in 2011 decision of the House of Lords inHamilton v AI Fayed (“Hamilton”)[18]. The defendant had alleged thatas Member of Parliament, the plaintiff had accepted cash from himfor asking questions on his behalf in the House of Commons. The plaintiffcommenced an action for defamation against the defendant, waiving hisparliamentary privileges pursuant to Section 13 of the Defamation Act,1996. Lord Browne-Wilkinson dwelt on parliamentary privileges, whichprohibit the court from questioning whether witness before Parliamenthad misled it. The House of Lords held that any attempt to cross-examinethe defendant to the effect that he had lied to Parliamentary committeewhen he had stated that he had paid money for questions would haveinfringed parliamentary privileges. However, under Section 13, the plaintiffcould waive his own protection from Parliamentary privilege. Theconsequence was thus:

“The privileges of the House are just that. They all belong to theHouse and not to the individual. They exist to enable the House toperform its functions. Thus section 13(1) accurately refers, not tothe privileges of the individual MP, but to “the protection of anyenactment or rule of law” which prevents the questioning ofprocedures in Parliament. The individual MP enjoys the protectionof parliamentary privileges. If he waives such protection, thenunder section 13(2) any questioning of parliamentary proceedings(even by challenging “findings…made about his conduct”) is notto be treated as breach of the privileges of Parliament.”

The effect of Section 13 was that if Member of Parliamentwaived the protection, an assail of proceedings before Parliament wouldnot be regarded as breach of privilege.

30. The decision in Hamilton is significant for explaining preciselythe relationship between parliamentary privilege and proceedings in aCourt which seek to challenge the truth or propriety of anything done inparliamentary proceedings. As the Court holds:

18 (2001) 1 A.C. 395

A“The normal impact of parliamentary privilege is to prevent thecourt from entertaining any evidence, cross-examination orsubmissions which challenge the veracity or propriety of anythingdone in the course of parliamentary proceedings. Thus, it is notpermissible to challenge by cross-examination in later action theveracity of evidence given to parliamentary committee.”B

But for the provisions of Section 13, evidence by Hamilton thathe had not received money for questions would come into conflict withthe evidence tendered by AI Fayed which was accepted by theParliamentary Committees. Hence it would have been impermissible tocross-examine Al Fayedto the effect that he had falsely stated beforeCthe Parliamentary Committees that he had paid money for questions.Such consequence was obviated by the waiver provisions of Section 13.

31. In Toussaint v Attorney General of Saint Vincent andthe Grenadines (“Toussaint”)[19], the Privy Council dealt with casewhere claim was brought against the government by an individualDclaiming that the acquisition of his land was unlawful. In support, hereferred to speech of the Prime Minister in Parliament and transcripttaken from the video-tape of televised debate. The submission wasthat the true reason for the acquisition of the land, as evident from thespeech of the Prime Minister, was political. Adverting to Prebble, LordEMance, speaking for the Privy Council, noted that there were threeprinciples involved: the need to ensure the free exercise of powers bythe legislature on behalf of the electors; the need to protect the interestof justice; and the interest of justice in ensuring that all relevant evidenceis available to the courts. The Privy Council held that it was permissibleto rely upon the speech of the Prime Minister though the attempt was toFdemonstrate an improper exercise of power for extraneous purposes.As Lord Mance observed:

“In such cases, the minister’s statement is relied upon to explainthe conduct occurring outside Parliament, and the policy andmotivation leading to it. This is unobjectionable although the aimGand effect is to show that such conduct involved the improperexercise of power “for an alien purpose or in whollyunreasonable manner”: Pepper v Hart, per Lord Browne-Wilkinson at p 639 A. The Joint Committee expressed the viewthat Parliament should welcome this development, on the basisH 19 (2007) 1 W.L.R. 2825

that “Both parliamentary scrutiny and judicial review have importantroles, separate and distinct, in modern democratic society” (para50) and on the basis that “The contrary view would have bizarreconsequences”, hampering challenges to the “legality of executivedecisions… by ring-fencing what ministers said in Parliament, andmaking “ministerial decisions announced in Parliament…lessreadily open to examination than other ministerial decisions”: para51. The Joint Committee observed, pertinently, that

“That would be an ironic consequence of article 9. Intended toprotect the integrity of the legislature from the executive andthe courts, article 9 would become source of protection ofthe executive from the courts.””

The Prime Minister’s statement in the House was “relied on forwhat it says, rather than questioned or challenged”. This was permissible.

32. Toussaint is an important stage in the development of thelaw. statement made in Parliament by Minister could be relied upon,not just to explain the history of law. Where there is challenge to theexercise of governmental authority on the ground that it is actuated byextraneous reasons, statement by Minister in Parliament could beused in court in regard to conduct outside Parliament. The challenge isnot to statement made in Parliament but to governmental action outside.The statement would be relevant to question an abuse of power bygovernment.

33. In Regina (Bradley and Others) v Secretary of State forWork and Pensions (Attorney General intervening)[20],the Court ofAppeal visited the statement in Prebble that Section 16(3) of theParliamentary Privileges Act, 1987 in Australia declared the true effectof Article 9 of the Bill of Rights and that Section 16(3) contained “thetrue principle to be applied” in the case. Holding that the dictum inPrebble appears to be too wide, it was held:

“…But paragraph (c), if read literally, is extremely wide. It wouldseem to rule out reliance on or challenge to ministerial statementitself on judicial review of the decision embodied in that statement(which was permitted in R v Secretary of State for the HomeDepartment, Ex p Brind [1991] 1 AC 696, and to which no objectionhas been raised in the present case), or to resolve an ambiguity in 20 (2007) EWHC 242 (Admin)

Alegislation (Pepper v Hart [1993] AC 593), or to assist in establishingthe policy objectives of an enactment (Wilson v First County TrustLtd (No 2)[2004] 1 AC 816). It would also prohibit reliance onreport of the Joint Committee on Human Rights, which, as MrLewis’s submissions rightly state, have been cited in number ofappellate cases in this jurisdiction: very recent example is R v FB[2007] QB 960 para 11. As Lord Nicholls of Birkenhead observedin Wilson’s case [2004] 1 AC 816, para 60:

“there are occasions when courts may properly have regardto ministerial and other statements made in Parliament withoutin any way ‘questioning’ what has been said in Parliament,Cwithout giving rise to difficulties inherent in treating suchstatements as indicative of the will of Parliament, and withoutin any other way encroaching upon parliamentary privilege byinterfering in matters properly for consideration and regulationby Parliament alone.”

DI therefore do not treat the text of paragraph(c) of the Australianstatute as being rule of English law.”

The report of Select Committee, it was observed, is writtendocument published after draft report has been placed before andapproved by the Committee. Hence, it was unlikely that the use of suchEa report in the submissions of party in civil litigation would have inhibitedthe Committee from expressing its view. The freedom of speech inParliament principle would not be affected, since there would be noinhibition of that freedom.

34. The decision of the Administrative Court in the UK in OfficeFof Government Commerce v Information Commissioner(Attorney General intervening)[21 ]involved case where departmentof government had carried out reviews into an identity card programme.The case involved claim for the disclosure of information. The Courtobserved that the law of parliamentary privilege is based on two principles:Gthe need for free speech in Parliament and separation of powers betweenthe legislature and the judiciary:

“...the law of parliamentary privilege is essentially based on twoprinciples. The first is the need to avoid any risk of interferencewith free speech in Parliament. The second is the principle of the

separation of powers, which in our constitution is restricted to thejudicial function of government and requires the executive andthe legislature to abstain from interference with the judicial function,and conversely requires the judiciary not to interfere with or tocriticise the proceedings of the legislature. These basic principleslead to the requirement of mutual respect by the courts for theproceedings 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 cannotconsider allegations of impropriety or inadequacy or lack ofaccuracy in the proceedings of Parliament. Such allegations arefor Parliament to address, if it thinks fit, and if an allegation is wellfounded any sanction is for Parliament to determine. Theproceedings of Parliament include parliamentary questions andanswers. 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 relevanthistorical facts or to determine whether the legislation is incompatiblewith the European Convention for the Protection of Human Rights whichwas embodied in the Human Rights Act 1998 (“HRA”) in the UK. Inthat context the Court observed:

“However, it is also important to recognise the limitations of theseprinciples. There is no reason why the courts should not receiveevidence of the proceedings of Parliament when they are simplyrelevant historical facts or events; no “questioning” arises in sucha case… Similarly, it is of the essence of the judicial function thatthe courts should determine issues of law arising from legislationand delegated legislation. Thus, there can be no suggestion of abreach of parliamentary privilege if the courts decide that legislationis incompatible with the European Convention for the Protectionof Human Rights and Fundamental Freedoms: by enacting theHuman Rights Act 1998…”

The Court held that the conclusions of the report of Committeethat had led to legislation could well be relied upon since the purpose ofthe reference is either historical or made with view to ascertaining themischief at which the legislation was aimed. If the evidence given to

ACommittee is uncontentious – the parties being in agreement that it istrue and accurate - there could be no objection to it being taken intoaccount. What the Tribunal could not do was to refer to contentiousevidence given to Parliamentary Committee or the finding of theCommittee on an issue which the Tribunal had to determine.

B35. The decision indicates calibrated approach to Parliamentaryprivilege consistent with the enactment of the HRA. The doctrine ofincompatibility envisages role for courts in the UK to assess theconsistency of the provisions of law with reference to the standards ofthe European Convention. Parliamentary supremacy does not allow thecourt to strike down legislation. Yet the emergence of standards underCthe HRA has allowed for distinct adjudicatory role: to determine thecompatibility of domestic law with reference to European Conventionstandards, adopted by the HRA. To hold that this has not altered therole of courts vis-à-vis Parliamentary legislation would be to miss asignificant constitutional development.

Wheeler v The Office of the Prime Minister[22 ]was casewhere there was challenge to decision brought by the government togive notice of the intention of the UK to participate in the CouncilFramework Decision on the European arrest warrants. It was claimedthat the government was precluded from issuing notification of itsEintention without holding referendum. Holding that the plea wouldbreach Parliamentary privilege the Court held:

“…In substance, however, the claim is that, unless the House ofCommons organises its business in particular way, and arrangesfor vote in particular form, the courts must intervene andFeither grant declaration or issue an order prohibiting thegovernment from taking certain steps unless and until there issuch vote. In my judgment, that would involve the courtsimpermissibly straying from the legal into the political realm.”

The plea, the Court ruled, would amount to the Court questioningGthings done in Parliament and instead of facilitating the role of Parliament,the Court would be usurping it.

In Wilson v First County Trust Ltd[23] the House of Lordsobserved that the Human Rights Act 1998 had obligated the Court to 22 (2014) EWHC 3815 (Admin)H 23 (2004) 1 AC 816

exercise new role in respect of primary legislation. Courts wererequired to evaluate the effect of domestic legislation upon rightsconferred by the European Convention and where necessary; to make adeclaration of incompatibility. While doing so, the Court would primarilyconstrue the legislation in question. Yet, the practical effect of statutoryprovision may require the court to look outside the statute. The courtwould be justified in looking at additional background information tounderstand the practical impact of statutory measure on Conventionright and decide upon the proportionality of statutory provision. In thatcontext, the Court held:

“This additional background material may be found in publisheddocuments, such as government white paper. If relevantinformation is provided by minister or, indeed, any other memberof either House in the course of debate on Bill, the courtsmust also be able to take this into account. The courts, similarly,must be able to have regard to information contained inexplanatory notes prepared by the relevant government departmentand published with Bill. The courts would be failing in the duedischarge of the new role assigned to them by Parliament if theywere to exclude from consideration relevant backgroundinformation whose only source was ministerial statement inParliament or an explanatory note prepared by his departmentwhile the Bill was proceeding through Parliament. By havingregard to such material, the court would not be “questioning”proceedings in Parliament or intruding improperly into the legislativeprocess or ascribing to Parliament the views expressed by aminister. The court would merely be placing itself in better positionto understand the legislation.

To that limited extent there may be occasion for the courts, whenconducting the statutory “compatibility” exercise, to have regardto matters stated in Parliament. It is consequence flowing fromthe Human Rights Act. The constitutionally unexceptionable natureof this consequence receives some confirmation from the viewexpressed in the unanimous report of the parliamentary JointCommittee on Parliamentary Privilege (1999) (HL Paper 43-I,HC 214-I), p 28, para 86, that it is difficult to see how there couldbe any objection to the court taking account of something said inParliament when there is no suggestion the statement was inspired

by improper motives or was untrue or misleading and there is noquestion of legal liability.”

Recourse to such background information would enable the courtto better understand the law and would not amount to breach ofparliamentary privilege.

36. The decision of the Privy Council in Owen Robert Jenningsv Roger Edward WyndhamBuchanan[24 ]arose from the Court of Appealin New Zealand. The judgment recognises that while the protectionconferred by Article 9 of the Bill of Rights should not be whittled away,yet as the Joint Committee on Parliamentary privileges (Chaired by LordCNicholls of Birkenhead) observed, freedom to discuss parliamentaryproceedings is necessary in democracy:

“Freedom for the public and the media to discuss parliamentaryproceedings outside Parliament is as essential to healthydemocracy as the freedom of members to discuss what theychoose within Parliament.”D

Media reporting of Parliamentary proceedings, the Court held,has been an important instrument of public debate. Hence the freedomof the Members of Parliament to discuss freely within its portals mustbe weighed with the freedom of the public to discuss and debate mattersof concern to them:E

“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 forma staple of current affairs and news programmes on the radio andtelevision. They inform and stimulate public debate. All this isFhighly desirable, since the legislature is representative of the wholenation. Thus, as the Joint Committee observed in its executivesummary (page 1):

“This legal immunity is comprehensive and absolute. Article 9should therefore be confined to activities justifying such highGdegree of protection, and its boundaries should be clear.””

These observations reflect concern to define the boundaries ofthe immunities under Article 9 in clear terms. While recognizing theabsolute nature of the immunity, its boundaries must “be confined to 24 (2004) UKPC 36H

[DR. D. Y. CHANDRACHUD, J.]

activities justifying such high degree of protection”. The right ofMembers of Parliament to speak their minds in Parliament withoutincurring liability is absolute. However, that right is not infringed if amember, having spoken and in so doing defamed another person,thereafter chooses to repeat his statement outside Parliament. In suchcircumstances, the privilege may be qualified. While it is necessary thatthe legislature and the courts do not intrude into the spheres reserved tothe other, reference to Parliamentary records to prove that certainwords were in fact uttered is not prohibited.

“In case such as the present, however, reference is made to theparliamentary record only to prove the historical fact that certainwords were uttered. The claim is founded on the later extra-parliamentary statement. The propriety of the member’s behaviouras parliamentarian will not be in issue. Nor will his state ofmind, motive or intention when saying what he did in Parliament.”

37. The evolution of the law in the UK indicates the manner inwhich the protection under Article 9 of the Bill of Rights has beentransformed. There are essentially three principles which underlie thedebate. The first is the importance of the freedom of speech in Parliament.The absolute protection which is afforded to what is done or spoken bya Member of Parliament in Parliament is an emanation of the need toprotect freedom of speech in Parliament. The second principle which isat work is the separation of powers between Parliament and the courts.This principle recognizes that liability for falsehood spoken in Parliamentlies within the exclusive control of Parliament. Member of Parliamentcannot be held to account in court of law for anything which is said orspoken in Parliament. speech in Parliament would not attract either acivil or criminal liability enforceable in court of law. The third principleemphasises that debates in Parliament have public element. Publicdebate is the essence of and barometer to the health of democracy.Though the privilege which attaches to speech in Parliament is absolute,the immunity extends to those activities within Parliament, which justifya high degree of protection. As Parliamentary proceedings have cometo be widely reported, published and televised, the common law hascome to recognize that mere reference to or production of record ofwhat has been stated in Parliament does not infringe Article 9 of the Billof Rights. In other words, reference to Parliamentary record to provea historical fact that certain words were spoken is not prohibited. Whatis impermissible is to question the truthfulness or veracity of what was

Astated before Parliament in any forum including court, outsideParliament. Nor can Member of Parliament be cross-examined in aproceeding before the court with reference to what was stated inParliament. The validity of an Act of Parliament or of the proceedingsof Parliamentary Committee cannot be questioned in court in theUK. The enactment of the Human Rights Act has led to recognitionBthat in testing whether statutory provision is incompatible with aConvention right, it may become necessary for the court to adjudge thepractical effects of law. To do so, the court may legitimately havereference to background material which elucidates the rationale for thelaw, the social purpose which it has sought to achieve and theCproportionality of its imposition. In order to understand the facets of thelaw which bear upon rights protected under the European Convention,the court may justifiably seek recourse to statements of ministers, policydocuments 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 inParliament and separation of powers must be placed in scale ofDinterpretation that is cognizant of the need to protect the democraticrights of citizens.

E.2 India

38. The law in India has witnessed marked degree of evolution.EIndian jurisprudence on the subject has recognized the importance ofthe freedom of speech in Parliament, the principle of separation of powersand the concomitant protection afforded to members from being heldliable for what is spoken in Parliament. Principles grounded in the commonlaw in the UK have not remained just in the realm of common law. TheConstitution, in recognizing many of those principles imparts sanctity toFthem in manner which only the text of fundamental written charterfor governance can provide. Separation of powers is part of the basicstructure. Our precedent on the subject notices the qualitative differencebetween Parliamentary democracy in the UK and in India. Thefundamental difference arises from the supremacy of the IndianGConstitution which subjects all constitutional authorities to the mandateof written Constitution.

39. The locus classicus on the subject of parliamentary privilegesis the seven-judge Bench decision in Re: Powers, Privileges andImmunities of State Legislatures[25]. It was argued before this Court 25 Special Reference No. 1 of 1964: (1965) 1 SCR 413

that the privilege of the House to construe Article 194(3) and to determinethe width of the privileges, powers and immunities enables the House todetermine questions relating to the existence and extent of its powersand privileges, unfettered by the views of the Supreme Court. ChiefJustice Gajendragadkar, held that it was necessary to determine whethereven in the matter of privileges, the Constitution confers on the House asole and exclusive jurisdiction. The decision recognizes that while in theUK, Parliament is sovereign, the Indian Constitution creates federalstructure and the supremacy of the Constitution is fundamental topreserving the delicate balance of power between constituent units:

“38. …it is necessary to bear in mind one fundamental feature ofa federal constitution. In England, Parliament is sovereign; and inthe words of Dicey, the three distinguishing features of the principleof Parliamentary Sovereignty are that Parliament has the right tomake or unmake any law whatever; that no person or body isrecognized by the law of England as having right to override orset aside the legislation of Parliament, and that the right or powerof 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 authorityamong bodies which are co-ordinate with and independent of eachother”. The supremacy of the Constitution is fundamental to theexistence of federal State in order to prevent either thelegislatures of the federal unit or those of the member States fromdestroying or impairing that delicate balance of power whichsatisfied the particular requirements of States which are desirousof union, but not prepared to merge their individuality in unity.This supremacy of the constitution is protected by the authority ofan independent judicial body to act as the interpreter of schemeof distribution of powers. Nor is any change possible in theconstitution by the ordinary process of federal or State legislation.Thus the dominant characteristic of the British Constitution cannotbe claimed by federal constitution like ours”.

While the legislatures in our country have plenary powers, theyfunction within the limits of written Constitution. As result, thesovereignty which Parliament can claim in the UK cannot be claimed byany legislature in India “in the literal absolute sense”.

A40. The immunity conferred on Members of Parliament fromliability to “any proceedings in any court in respect of anything said orany vote given by him in Parliament” (Article 105(2)) was deliberatedupon in judgment of the Constitution Bench in P V Narasimha Rao vState (CBI/SPE)[26]. Justice N Ray agreed with the view of Justice SP Bharucha on the scope of the immunity under clauses (2) and (3) ofBArticle 105. The judgment of Justice Bharucha (for himself and JusticeS Rajendra Babu) thus represents the view of the majority. The minorityview was of Justices S Agrawal and Dr S Anand. In construing thescope of the immunity conferred by Article 105(2), Justice Bharuchaadverted to judgments delivered by courts in the United Kingdom (includingCthose of the Privy Council noted earlier[27]). Interpreting Article 105(2),Justice Bharucha observed thus:

“133. Broadly interpreted, as we think it should be, Article 105(2)protects Member of Parliament against proceedings in courtthat relate to, or concern, or have connection or nexus withDanything said, or vote given, by him in Parliament.”

In that case, the charge in criminal prosecution for offencesunder Section 120B of the Penal Code and the Prevention of CorruptionAct, 1988 was that there was criminal conspiracy between allegedbribe givers and bribe takers (who were members of the legislature) toEdefeat motion of no confidence by obtaining illegal gratification inpursuance of which bribes were given and accepted. The charge did notrefer to the votes that the alleged bribe takers had actually cast upon theno confidence motion. Nevertheless, the majority held that the expression“in respect of” in Article 105(2) must perceive ‘broad meaning’. Thealleged conspiracy and agreement had nexus in respect of those votes,Fand the proposed inquiry in the criminal proceedings was in regard to itsmotivation. The submission of the Attorney General for India that theprotection under Article 105(2) is limited to court proceedings and to aspeech that is given or vote that is cast was not accepted by theConstitution Bench for the following reasons:G“136

“136. It is difficult to agree with the learned Attorney Generalthat though the words “in respect of” must receive broadmeaning, the protection under Article 105(2) is limited to court

26 (1998) 4 SCC 626 27 Bradlaugh v Gosset: (1884) 12 QBD 271: 53 LJQB 290; Prebble v Television NewHZealand Ltd: (1994) 3 AII ER 407, PC; R v Currie: (1992)

proceedings that impugn the speech that is given or the vote thatis cast or arises thereout or that the object of the protection wouldbe fully satisfied thereby. The object of the protection is to enableMembers to speak their mind in Parliament and vote in the sameway, freed of the fear of being made answerable on that accountin court of law. It is not enough that Members should be protectedagainst civil action and criminal proceedings, the cause of actionof which is their speech or their vote. To enable Members toparticipate fearlessly in parliamentary debates, Members needthe wider protection of immunity against all civil and criminalproceedings that bear nexus to their speech or vote. It is for thatreason that Member is not “liable to any proceedings in anycourt in respect of anything said or any vote given by him”. Article105(2) does not say, which it would have if the learned AttorneyGeneral were right, that Member is not liable for what he hassaid or how he has voted. While imputing no such motive to thepresent prosecution, it is not difficult to envisage Member whohas made speech or cast vote that is not to the liking of thepowers that be being troubled by prosecution alleging that hehad been party to an agreement and conspiracy to achieve certainresult in Parliament and had been paid bribe.”[28]

The view of the minority was that the offence of bribery is madeout against bribe taker either upon taking or agreeing to take moneyfor promise to act in certain manner. Following this logic, Justice SCAgrawal held that the criminal liability of Member of Parliament whoaccepts bribe for speaking or giving vote in Parliament arisesindependent of the making of the speech or the giving of the vote andhence is not liability “in respect of anything said or any vote given” inParliament. The correctness of the view in the judgment of the majoritydoes not fall for consideration in the present case. Should it becomenecessary in an appropriate case in future, larger bench may have toconsider the issue.

41. The judgment of the Constitution Bench in Raja Ram Pal vHon’ble Speaker, Lok Sabha[29], has significant bearing on the issueswhich arise in the present reference. Chief Justice YK Sabharwal,delivering the leading opinion on behalf of three judges dealt with the

28 Id, at pages 729-730

29 (2007) 3 SCC 184

Aambit of Article 105 in relation to the expulsion of member and theextent to which such decision of the Houses of Parliament is amenableto judicial review. The judgment notices that “parliamentary democracyin India is qualitatively distinct” from the UK. In defining the nature andextent of judicial review in such cases, Chief Justice Sabharwal observedthat it is the jurisdiction of the court to examine whether particularBprivilege claimed by the legislature is actually available to it:

“62. In view of the above clear enunciation of law by ConstitutionBenches of this Court in case after case, there ought not be anydoubt left that whenever Parliament, or for that matter any StateLegislature, claims any power or privilege in terms of the provisionsCcontained in Article 105(3), or Article 194(3), as the case may be,it is the Court which has the authority and the jurisdiction toexamine, on grievance being brought before it, to find out if theparticular power or privilege that has been claimed or asserted bythe legislature is one that was contemplated by the saidDconstitutional provisions or, to put it simply, if it was such poweror privilege as can be said to have been vested in the House ofCommons of the Parliament of the United Kingdom as on thedate of commencement of the Constitution of India so as to becomeavailable to the Indian Legislatures.”[30]

EWhile Parliament has the power to expel member for contemptcommitted, the doctrine of “exclusive cognizance” adopted in the UKhas no application in India which is governed by written Constitution.Though Parliament is possessed of plentitude of powers, it is subject toterms of legislative competence and to the restrictions imposed byfundamental rights. Article 21 is attracted when the liberty of MemberFof Parliament is threatened by imprisonment in execution of aparliamentary privilege. Fundamental rights can be invoked both by amember and by non-member when faced by the exercise ofparliamentary privilege. Drawing the distinction between the UK andIndia, Chief Justice Sabharwal observed:G“363. That the English cases laying down the principle of exclusivecognizance of Parliament, including Bradlaugh [(1884) 12 QBD271: 53 LJQB 290: 50 LT 620], arise out of jurisdiction controlledby the constitutional principle of sovereignty of Parliament cannot

30 Id, at page 259H

be lost sight of. In contrast, the system of governance in India isfounded on the norm of supremacy of the Constitution which isfundamental to the existence of the Federal State.”[31]

Consequently, proceedings which are tainted as result of asubstantive illegality or unconstitutionality (as opposed to mereirregularity) would not be protected from judicial review. The doctrineof exclusive cognizance was evolved in England as incidental to systemof governance based on parliamentary sovereignty. This has no applicationto India, where none of the organs created by the Constitution issovereign, and each is subject to the checks and controls provided bythe Constitution.

The decision in Raja Ram Pal holds that Article 122(1) embodiesthe twin test of legality and constitutionality. This Court has categoricallyrejected the position that the exercise of powers by the legislature is notamenable to judicial review:

“389. …there is no scope for general rule that the exercise ofpowers by the legislature is not amenable to judicial review. Thisis neither the letter nor the spirit of our Constitution. We find noreason not to accept that the scope for judicial review in mattersconcerning parliamentary proceedings is limited and restricted. Infact, this has been done by express prescription in the constitutionalprovisions, including the one contained in Article 122(1). But ourscrutiny cannot stop, as earlier held, merely on the privilege beingfound, especially when breach of other constitutional provisionshas been alleged.”[32]The Court will not exercise its power of judicial review wherethere is merely an irregularity of procedure, in view of the provisions ofArticle 122(1). But judicial review is not “inhibited in any manner” wherethere is gross illegality or violation of constitutional provisions. Whilesummarizing the conclusions of the judgment, Chief Justice Sabharwalemphasized the need for constitutional comity, since Parliament being acoordinate constitutional institution. The expediency and necessity forthe exercise of the power of privilege are for the legislature to determine.Yet, judicial review is not excluded for the purpose of determining whetherthe legislature has trespassed on the fundamental rights of its citizens.

31 Id, at page 348

32 Id, at page 360

AAmong the conclusions in the judgment, of relevance to the presentcase, are the following:

“431. …(k) There is no basis to the claim of bar of exclusivecognizance or absolute immunity to the parliamentary proceedingsin Article 105(3) of the Constitution;

(l) The manner of enforcement of privilege by the legislature canresult in judicial scrutiny, though subject to the restrictions containedin the other constitutional provisions, for example Article 122 or212; and

(m) Article 122(1) and Article 212(1) displace the broad doctrineCof exclusive cognizance of the legislature in England of exclusivecognizance of internal proceedings of the House renderingirrelevant the case-law that emanated from courts in thatjurisdiction; inasmuch as the same has no application to the systemof governance provided by the Constitution of India;.”[33]D42. The decision in has been adverted to in the

42. The decision in Raja Ram Pal has been adverted to in thesubsequent judgment of the Constitution Bench in Amarinder Singh vSpecial Committee, Punjab Vidhan Sabha[34]. Chief JusticeBalakrishnan, speaking for the Constitution Bench, held that all theprivileges which have been claimed by the House of Commons cannotEbe claimed automatically by legislative bodies in India. Legislatures inIndia do not have the power of self-composition which is available to theHouse of Commons. Indian legislatures are governed by writtenConstitution.

43. The limits of comparative law must weigh in the analysis inthis area of constitutional law, when the Court is confronted by copiousFattempt, during the course of submissions, to find meaning in the natureand extent of parliamentary privilege in India from decided cases in theUK. The fundamental difference between the two systems lies in thefact that parliamentary sovereignty in the Westminster form ofgovernment in the UK has given way, in the Indian Constitution, toGconstitutional supremacy. Constitutional supremacy mandates that everyinstitution of governance is subject to the norms embodied in theconstitutional text. The Constitution does not allow for the existence ofabsolute power in the institutions which it creates. Judicial review as 33 Id, at page 372 34 (2010) 6 SCC 113H

part of the basic features of the Constitution is intended to ensure thatevery institution acts within its bounds and limits. The fundamental rightsguaranteed to citizens are an assurance of liberty and recognition ofthe autonomy which inheres in every person. Hence, judicial scrutiny ofthe exercise of parliamentary privileges is not excluded where afundamental right is violated or gross illegality occurs. In recognizingthe position of Parliament as coordinate institution created by theConstitution, judicial review acknowledges that Parliament can decidethe expediency of asserting its privileges in given case. The Court willnot supplant such an assertion or intercede merely on the basis of anirregularity of procedure. But where violation of constitutionalprescription is shown, judicial review cannot be ousted.

Separation of powers: nuanced modern doctrine

44. The submission of the Attorney General is that the carefullystructured dividing lines between the judicial, executive and legislativewings of the state would be obliterated if the court were to scrutinize orjudicially review reports of parliamentary committees. The principle ofseparation, it has been submitted, interdicts the courts from scrutinizingor reviewing reports of parliamentary committees. Judicial review maywell result in conflict between the two institutions of the State and ishence – according to the submission – best eschewed.

45. Separation of powers between the legislature, the executiveand the judiciary covers large swathe of constitutional history spanningthe writings of Montesquieu and Blackstone, to the work of Diceyand Jennings. Gerangelos (2009) laments that in the UK, parliamentarysovereignty has prevented the principle of separation from emerging asa judicially enforceable standard[35]:

“Britain’s unwritten constitution and the influence of Diceyanorthodoxy, emphasising parliamentary sovereignty and fusion ofpowers which did not countenance judicial invalidation of legislativeaction, has meant that the separation of powers has not become asource of judicially-enforceable constitutional limitations. Theprecise status of the doctrine has varied from time to time and theextent to which the doctrine nevertheless provides some restrainton legislative interference with judicial process cannot bedetermined with precision. It can be said, however, that

35 Peter Gerangelos, THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIALPROCESS, CONSTITUTIONAL PRINCIPLES AND LIMITATIONS (Hart Publishing, 2009).

ABC

Aconstitutional entrenchment of the separation doctrine has not beenpart of the Westminster constitution tradition; tradition whichhas not, in any event, placed much store by written constitutionswith their accompanying legalism and rigidities. The prevailinginfluence from that quarter has been the maintenance of judicialindependence in terms of institutional independence through theBprotection of tenure and remuneration, and afforded statutoryprotection in the Act of Settlement in 1701, as opposed to theprotection of judicial power in functional sense.”

The impact of the doctrine is seen best in terms of the institutionalindependence of the judiciary from other organs of the state. The doctrineCis stated to have been overshadowed in the UK “by the more dominantconstitutional principles of parliamentary sovereignty and the rule of law”.For instance, in the UK, Ministers of Crown are both part of the executiveand members of the Parliament. Until the Constitutional Reform Act,2005 the Lord Chancellor was member of the Cabinet and was eligibleDto sit as judge in the Appellate Committee of the House of Lords. TheJudicial Committee of the House of Lords was the highest court, eventhough the House constituted the Upper House of the legislature. In theenforcement of parliamentary privileges, the House exercises judicialfunctions. Delegated legislation enables the executive to exerciselegislative functions.E

46. Many contemporary scholars have differed on the normativeimportance of the doctrine of separation. One view is that while distinctlegislature, executive and judiciary can be identified as matter ofpractice, this is not mandate of the unwritten Constitution. The statementthat there is separation is construed to be descriptive and notFnormative[36]. On the other hand, other scholars regard the doctrine as “afundamental underlying constitutional principle which informs the wholeBritish constitutional structure”[37]. Yet, even scholars who emphasise theimportance of the separation of powers in the UK acknowledge that the

36 See Tomkins, PUBLIC LAW (Oxford University Press, 2003) 37 (as cited by GerangelosGat page 274).

37 Barendt, ‘Separating of Powers and Constitutional Government’ [1995] PublicLaw 599 at 599-60, Munro, Studies in Constitutional Law, 2[nd] edn (London,Butterworths, 1999) at 304, TRS Allan, Law Liberty and Justice, The Legal Foundationsof British Constitutionalism (Oxford, Clarendon Press, 1993) chs 3 and 8, and TRSAllan, Constitutional Justice, Liberal Theory of the Rule of Law (Oxford, OxfordHUniversity Press, 2001)

Constitution does not strictly observe such separation. Courts in theUK do not possess direct power of judicial review to invalidatelegislation though, with the enactment of the Human Rights Act, thedoctrine of incompatibility has become an entrenched feature of thelaw. Gerangelos (supra) states that “the most that can be said is thatthe separation of powers does play an influential role as constitutionalprinciple, but as non-binding one”.[38] He cites Professor RobertStevens[39]:

“In modern Britain the concept of the separation of powers iscloudy and the notion of the independence of the judiciary remainsprimarily term of constitutional rhetoric. Certainly its penumbra,and perhaps even its core, are vague. No general theory exists,although practically the English have developed surprisinglyeffective informal systems for the separation of powers; althoughit should never be forgotten that the system of responsiblegovernment is based on co-mingling of the executive with thelegislature. The political culture of the United Kingdom, however,provides protections for the independence of the judiciary, whichare missing in law.”

The importance of the principle of separation essentially lies inthe independence of the judiciary. The protections in the Act of Settlement1701 have now been reinforced in the Constitutional Reform Act, 2005.Though the supremacy of Parliament is one of the fundamental featuresin the UK and the unwritten Constitution does not mandate strictseparation of powers, it would be difficult to regard state which has nocontrol on legislative supremacy as constitutional state founded on therule of law[40]. Consequently, where the rule of law and constitutionalismgovern society there may yet be fundamental principles inhering in thenature of the polity, which can be enforced by the judiciary even againstParliament, in the absence of written Constitution[41]. In other words,even in the context of an unwritten Constitution, the law has certaininternal morality as part of which it embodies fundamental notions ofjustice and fairness.

38 Peter Gerangelos, THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIALPROCESS, CONSTITUTIONAL PRINCIPLES AND LIMITATIONS (Hart Publishing, 2009)

39 R Stevens, ‘A Loss of Innocence?: Judicial Independence and the Separation ofpowers’ (1999) 19 OXFORD JOURNAL OF LEGAL STUDIES 365.

40 Allan, Law Liberty and Justice (supra note 36)

41 Gerangelos, at page 277.

A47. The interpretation of the doctrine of separation of powers hasevolved from being “one branch – one function approach”[42] with limitedexceptions, to concept which involves an integration of the ‘division ofwork’ and ‘checks and balances’[43]. The primary aim of the doctrinetoday is to ensure the accountability of each wing of the State, whileensuring concerted action in respect of the functions of each organ forBgood governance in democracy. The doctrine of separation of powerhas developed to fulfill the changing needs of society and its growingnecessities. Many of these considerations are significantly different fromthose which were prevalent when Montesquieu originally formulatedthe doctrine.C48. In 1967, MJC Vile in his book titled ‘Constitutionalism andthe Separation of Powers’[44] defined the ‘pure doctrine’ of separationof powers thus:“[a] ‘pure doctrine’ of the separation of powers might be formulatedin the following way: It is essential for the establishment andDmaintenance of political liberty that the government be dividedinto three branches or departments, the legislature, the executive,and the judiciary. To each of these three branches, there is acorresponding identifiable function of government, legislative,executive, or judicial. Each branch of the government must beEconfined to the exercise of its own function and not allowed toencroach upon the functions of the other branches. Furthermore,the persons who compose these three agencies of governmentmust be kept separate and distinct, no individual being allowed tobe at the same time member of more than one branch. In thisway, each of the branches will be check to the others and noFsingle group of people will be able to control the machinery of theState.”[45]

This definition becomes important to facilitate an understandingof the reconstructed and modern view on separation of powers vis-à-vis

42 Aileen Kavanagh, The Constitutional Separation of Powers, Chapter 11 in DavidGDyzenhaus and Malcolm Thorburn (eds.)PHILOSOPHICAL FOUNDATIONS OF CONSTITUTIONALLAW, (Oxford University Press, 2016) 221 (hereinafter, “Philosophical Foundations ofConstitutional Law”). 43 See MJC Vile, CONSTITUTIONALISM AND THE SEPARATION OF POWERS (Oxford UniversityPress, 1967). 44 Id.H 45 Id, at page 13

its traditional understanding. Vile essentially proposes that ‘division oflabor’ and ‘checks and balances’ are intrinsic to the theory of separationof powers. In his view, scheme of checks and balances would involvea degree of mutual supervision among the branches of government, andmay therefore result in certain amount of interference by one branchinto the functions and tasks of the other.[46] Aileen Kavanagh, has presenteda scholarly analysis of separation of powers in chapter titled ‘TheConstitutional Separation of Powers’.[47] She concurs with the viewexpressed by MJC Vile that separation of powers includes twocomponents, that of ‘division of labour’ and ‘checks and balances’. Thesetwo components are strengthened by the deep-rooted ethos of coordinatedinstitutional effort and joint activity between branches of the governmentin the interest of good governance.[48] Instead of an isolatedcompartmentalization of branches of government, she highlights thenecessary independence, interdependence, interaction andinterconnection between these branches in complex interactive setting.[49]Kavanagh acknowledges that in view of the stronghold of the puredoctrine over our understanding of separation of powers, the idea of acollective enterprise between the branches of the government for thepurpose of governing may seem jarring. However, she argues that thisidea of “branches being both independent and interdependent-distinctbut interconnected-also has some pedigree in canonical literature.”[50]Kavanagh thus opines that the tasks of law-making, law-applying andlaw-executing are collaborative in nature, necessitating co-operationbetween the branches of the government in furtherance of the commonobjective of good governance. Kavanagh explains this as follows:

“In some contexts, the interaction between the branches will besupervisory, where the goal is to check, review and hold the otherto account. At other times, the interaction will be form of

46 See, MJC Vile, CONSTITUTIONALISM AND THE SEPARATION OF POWERS (Oxford UniversityPress, 1967).

47 Aileen Kavanagh, The Constitutional Separation of Powers, Chapter 11 in DavidDyzenhaus and Malcolm Thorburn (eds.)PHILOSOPHICAL FOUNDATIONS OF CONSTITUTIONALLAW, (Oxford University Press, 2016) 221.

48 See, Kyritsis, ‘What is Good about Legal Conventionalism?’ (2008) 14 LEGALTHEORY 135, 154 (as cited in Philosophical Foundations of Constitutional Law, at page235).

50 Philosophical Foundations of Constitutional Law, at page 236.

Acooperative engagement where the branches have to support eachother’s role in the joint endeavor.”[51]

Jeremy Waldron has dealt with the relationships among officialsor institutions in State. He proposes that separation of powers is notjust principle involving the division of labour and the distribution ofBpower but also includes inter-institutional relationships between the threebranches when carrying out their distinct roles as part of joint enterprise.This is in order to facilitate, what Waldron called the ‘Principle ofInstitutional Settlement’.[52] Further, inter-institutional comity, which is therespect that one branch of the state owes to another, is also significantfactor, which calls for collaboration among branches of the governmentCto ensure that general public values such as welfare, autonomy,transparency, efficiency and fairness are protected and secured for thebenefit of citizens.[53]

Thus, in comparative international context, authors have acceptedseparation of powers to widely include two elements: ‘division of labour’Dand ‘checks and balances’. The recent literature on the subject matterencourages inter-institutional assistance and aid towards the jointenterprise of good governance. The current view on the doctrine ofseparation of powers also seeks to incorporate mutual supervision,interdependence and coordination because the ultimate aim of theEdifferent branches of the government, through their distinct functions isto ensure good governance and to serve public interest, which is essentialin the background of growing social and economic interests in welfarestate. This stands in contrast with the former and original interpretationof the doctrine, which sought to compartmentalize and isolate the differentbranches of the government from one another, with limited permissibleFexceptions.

51 K Malleson, ‘The Rehabilitation of Separation of Powers in UK’ in L. de Groot-vanLeeuwen and W Rombouts, SEPARATION OF POWERS IN THEORY AND PRACTICE: ANINTERNATIONAL PERSPECTIVE (Nijmegen: Wolf Publishing, 2010) 99-122, 115 (as cited inPhilosophical Foundations of Constitutional Law, at page 237).G 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 OFJOSEPH RAZ (Oxford University Press, 2003) 45-70.

53 See, J King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 OXFORD JOURNALOF LEGAL STUDIES 409, 428; See also, Buckley v. Attorney General [1950] Irish Reports67, 80 (per O’Bryne J) (as cited in Philosophical Foundations of Constitutional Law,Hat page 235).

49. Eoin Carolan’s book titled ‘The New Separation of Powers’(2009) reflects an attempt to reshape the traditional doctrine ofseparation, to make it relevant to the practical realities of moderngovernment. He notes that while the tripartite separation of powersbetween the legislature, executive and judiciary had “conceptual simplicitywith an impeccable academic pedigree”[54], the doctrine has obviouslimitations in the sense that it does not satisfactorily explain the emergenceand growth of the modern administrative State we see today. The authorcontends that an institutional theory like the separation of powers can nolonger be accepted in its original form if it cannot account for this‘significant tranche of government activity’. Among the characteristicsof the modern administrative State is that public power is exercised in adecentralized manner and on an ever-growing discretionary basis.[55]The shared growth of administrative powers of the bureaucracyin the modern state defies the tripartite division. Therefore, realisticmodern application of the theory is necessary. The modern system ofgovernment has grown in ways previously thought unfathomable, andnow encompasses breadth and diversity previously unseen. Governmenttoday is characterized by the increase in powers of its agencies and therapid growth of organizations which can neither be classified asexclusively public or private bodies. These modern systems of governmentand the existence and rapid rise of supranational organizations defy thetraditional three- way division of powers. Administrative bodies are notdefined by uniform design, and exercise institutional fluidity in mannerwhich has come to characterize the administrative state’s organizationalcomplexity: In single instance, they exercise powers and performfunctions that might have been formerly classified as executive, judicialor legislative in nature.[56]In this view, the modern State is distinctlydifferent from Locke’s seventeenth century Model and Montesquieu’seighteenth century ideas:

“The state is now dirigiste, discretionary, and broadly dispersed.”[57]

50. Carolan thus proposes that to be suitable, theory of institutionaljustice must be rooted in the principle of non-arbitrariness. He believes 54 Eoin Carolan, THE NEW SEPARATION OF POWERS- THEORY FOR THE MODERN STATE(Oxford University Press, 2009) 253.

56 Eoin Carolan, The Problems with the Theory of Separation of Powers’, SSRN,(2011) 26.

57 Supra note 53, 256

Athat more suitable approach of classification of institutions would benot by functions, but by constituencies, and the sole constituency in thislegal framework is the individual citizen. Carolan’s proposed model placesemphasis on the exercise of power on the basis of inter-institutionaldialogue which ensures that communicative process has taken place[58].Carolan describes his model thus:B

“The prescribed institutional structure operates by inter-organmingling instead of separation. Individual decisions are deliveredat the end of multi institutional process, the central concern ofwhich is to organize, structure, manage, and—crucially—ensurethe input of all relevant institutional interests. On this model, theCgovernment and the courts are presented as providing an orientingframework within which administrative decision-making will occur.These first-order organs function at the level of macro-socialorganization, adopting general measures which are expected toadvance their constituent social interest. The government specifiesDthe actions it feels are required (or requested) to enhance theposition of the collective. The courts, for their part, insist on theprocess precautions necessary to secure individual protection.Issues of informational efficacy and non-arbitrariness combine toensure, however, that these provisions are not particularized.”[65]

EWhile the autonomy of the administration is respected as vitalinstitutional process, corrective measures are required where an institutionhas strayed outside the range of permissible outcomes. He speaks of acollaborative process of exercising power, with the judiciary acting as arestraining influence on the arbitrary exercise of authority.

F51. While the Indian Constitution has been held to have recognizedthe doctrine of separation of powers, it does not adopt rigid separation.In Ram Jawaya Kapur v State of Punjab[59],this Court held:

“12. …The Indian Constitution has not indeed recognised thedoctrine of separation of powers in its absolute rigidity but theGfunctions of the different parts or branches of the Governmenthave been sufficiently differentiated and consequently it can verywell be said that our Constitution does not contemplate assumption,by one organ or part of the State, of functions that essentiallybelong to another.”

58 Supra note 53, 132H 59 (1955) 2 SCR 225

Reduced to its core, separation entails that one organ or institutionof the state cannot usurp the powers of another.

In Re: Powers, Privileges and Immunities of StateLegislatures[60], this Court held that whether or not the Constitutionbrings about “distinct and rigid separation of powers”, judicial reviewis an inseparable part of the judicial function. Whether legislative authorityhas extended beyond its constitutional boundaries or the fundamentalrights have been contravened cannot be decided by the legislature, but isa matter entrusted exclusively to judicial decision.

In Kesavananda Bharati v State of Kerala[61], separation ofpowers was regarded as feature of the basic structure of the IndianConstitution. Chief Justice Sikri held:

“292. The learned Attorney-General said that every provision ofthe Constitution is essential; otherwise it would not have been putin the Constitution. This is true. But this does not place everyprovision of the Constitution in the same position. The true positionis that every provision of the Constitution can be amended providedin the result the basic foundation and structure of the constitutionremains the same. The basic structure may be said to consist ofthe 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, theexecutive and the judiciary;

(5) Federal character of the Constitution.”[62]

Justices Shelat and Grover emphasized the doctrine of separationas part of the checks and balances envisaged by the Constitution:

“577. …There is ample evidence in the Constitution itself toindicate that it creates system of checks and balances by reasonof which powers are so distributed that none of the three organsit sets up can become so pre-dominant as to disable the others

60 (1965) 1 SCR 413 61 (1973) 4 SCC 225 62 Id, at page 366

Afrom exercising and discharging powers and functions entrustedto them. Though the Constitution does not lay down the principleof separation of powers in all its rigidity as is the case in theUnited States Constitution yet it envisages such separation to adegree…”[63]

BIn Indira Nehru Gandhi v Raj Narain[64], Justice YVChandrachud held that while the Constitution does not embody rigidseparation of governmental powers, judicial function cannot be usurpedby the legislature:

“689. …the exercise by the legislature of what is purely andCindubitably judicial function is impossible to sustain in the contexteven of our cooperative federalism which contains no rigiddistribution of powers but which provides system of salutarychecks and balances.”[65]

The 39th amendment of the Constitution did precisely that andwas held to violate the basic structure.D

In I R Coelho v State of Tamil Nadu[66],the Court underlined thefunctional complementarity between equality, the rule of law, judicialreview and separation of powers:

“129. Equality, rule of law, judicial review and separation of powersEform parts of the basic structure of the Constitution. Each of theseconcepts are intimately connected. There can be no rule of law, ifthere is no equality before the law. These would be meaninglessif the violation was not subject to the judicial review. All thesewould be redundant if the legislative, executive and judicial powersare vested in one organ. Therefore, the duty to decide whetherFthe limits have been transgressed has been placed on thejudiciary.”[67] Constitution Bench of this Court in State of Tamil Nadu vState of Kerala[68] ruled on the importance of separation as an entrenchedconstitutional principle. The court held:G

63 Id, at page 452. 64 (1975) Suppl SCC 1 65 Id, at page 261. 66 (2007) 2 SCC 1 67 Id, at page 105H 68 (2014) 12 SCC 696

“126.1. Even without express provision of the separation ofpowers, the doctrine of separation of powers is an entrenchedprinciple in the Constitution of India. The doctrine of separationof powers informs the Indian constitutional structure and it is anessential constituent of rule of law. In other words, the doctrine ofseparation of power though not expressly engrafted in theConstitution, its sweep, operation and visibility are apparent fromthe scheme of Indian Constitution. Constitution has madedemarcation, without drawing formal lines between the threeorgans—legislature, executive and judiciary. In that sense, evenin the absence of express provision for separation of powers, theseparation of powers between the legislature, executive andjudiciary is not different from the Constitutions of the countrieswhich contain express provision for separation of power.”[69]

52. The doctrine of separation restrains the legislature fromdeclaring judgment of court to be void and of no effect. However, inthe exercise of its law making authority, legislature possessed oflegislative competence can enact validating law which remedies defectpointed out in judgment of court. While the legislature cannot ordainthat decision rendered by the court is invalid, it may by enacting law,take away the basis of the judgment such that the conditions on which itis based are so fundamentally altered that the decision could not havebeen given in the altered circumstances.[70]

53. In State of UP v Jeet S Bisht[71], the Court held that thedoctrine of separation of powers limits the “active jurisdiction” of eachbranch of government. However, even when the active jurisdiction ofan organ of the State is not challenged, the doctrine allows for methodsto be used to prod and communicate to an institution either its shortfallsor excesses in discharging its duty. The court recognized thatfundamentally, the purpose of the doctrine is to act as scheme of checksand balances over the activities of other organs. The Court noted thatthe modern concept of separation of powers subscribes to the

69 Id, at page 771

70 I.N. Saksena v. State of MP (1976) 4 SCC 750; Indian Aluminium Co. v. State ofKerala (1996) 7 SCC 637; S.S Bola and Others v. B.D Sardana & Others (1997) 8 SCC522; 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) 5SCC 1

71 (2007) 6 SCC 586

CDE

Aunderstanding that it should not only demarcate the area of functioningof various organs of the State, but should also, to some extent, define theminimum content in that delineated area of functioning.

Justice SB Sinha addressedthe need for the doctrine to evolve, asadministrative bodies are involved in the dispensation of socio-economicBentitlements:

“83. If we notice the evolution of separation of powers doctrine,traditionally the checks and balances dimension was onlyassociated with governmental excesses and violations. But intoday’s world of positive rights and justifiable social andCeconomic entitlements, hybrid administrative bodies, privatefunctionaries discharging public functions, we have to performthe oversight function with more urgency and enlarge the fieldof checks and balances to include governmental inaction.Otherwise we envisage the country getting transformed into stateof repose. Social engineering as well as institutional engineeringDtherefore forms part of this obligation.”[72]54. The constitutional validity of the Members of Parliament LocalArea Development (“MPLAD”) Scheme, which allocates funds to MPsfor development work in their constituencies was considered by aConstitution Bench of this Court in Bhim Singh v Union of India[73].EThe challenge was that by entrusting funds to MPs, the Scheme vestsgovernmental functions in legislators and violates the separation ofpowers. The Court held that while the concept of separation of powersis not found explicitly in particular constitutional provision, it “is inherentin the polity the Constitution has adopted”. The Constitution BenchFperceived that there is link between separation and the need to ensureaccountability of each branch of government. While the Constitutiondoes not prohibit overlapping functions, what it prohibits is the exerciseof functions by branch in way which “results in wresting away of theregime of constitutional accountability.” The Court held that by allowingfunds to be allocated to Members of Parliament for addressing theGdevelopment needs of their constituencies, the MPLAD Scheme doesnot breach the doctrine of separation of powers. The administration ofthe scheme was adequately supervised by district authorities.

72 Id, at page 619 73 (2010) 5 SCC 538H

55. In Supreme Court Advocates-on-Record Association vUnion of India[74], Justice Madan Lokur observed that separation ofpowers does not envisage that each of the three organs of the State –the legislature, executive and judiciary - work in silo. The learnedjudge held:

“678. There is quite clearly an entire host of parliamentary andlegislative checks placed on the judiciary whereby its administrativefunctioning can be and is controlled, but these do not necessarilyviolate the theory of separation of powers or infringe theindependence of the judiciary as far as decision-making isconcerned. As has been repeatedly held, the theory of separationof powers is not rigidly implemented in our Constitution, but ifthere is an overlap in the form of check with reference to anessential or basic function or element of one organ of State asagainst another, constitutional issue does arise. It is in this contextthat the 99th Constitution Amendment Act has to be viewed—whether it impacts on basic or an essential element of theindependence of the judiciary, namely, its decisionalindependence.”[75]

56. In State of West Bengal v Committee for Protection ofDemocratic Rights, West Bengal[76], this Court held that the doctrineof separation of powers could not be invoked to limit the Court’s powerto exercise judicial review, in case where fundamental rights are soughtto be breached or abrogated on the ground that exercise of the powerwould impinge upon the doctrine.

57. In more recent decision of Bench of two learned judges ofthis Court in Common Cause v Union of India[77],the Court construedthe provisions of the Lokpal and Lokayuktas Act, 2013 under which amulti-member selection committee for the appointment of the Lokpal isto consist, among others, of the Leader of the Opposition. Bill foramending the provisions of the Act was referred to parliamentarycommittee which proposed the inclusion of the leader of the largestopposition party in the Lok Sabha as member, in lieu of the Leader ofthe Opposition in the selection committee. The grievance of the petitioners

74 (2016) 5 SCC 1 75 Id, at page 583 76 (2010) 3 SCC 571 77 (2017) 7 SCC 158

BCDE

Awas that despite the enactment of the law, its provisions had not beenimplemented. It was urged that even if there is no recognized Leader ofthe Opposition in the Lok Sabha, the leader of the single largest oppositionparty should be inducted as part of the Selection Committee. JusticeRanjan Gogoi speaking for this Court held thus:

B“18. There can be no manner of doubt that the parliamentarywisdom of seeking changes in an existing law by means of anamendment lies within the exclusive domain of the legislature andit is not the province of the Court to express any opinion on theexercise of the legislative prerogative in this regard. The framingof the Amendment Bill; reference of the same to the ParliamentaryCStanding Committee; the consideration thereof by the saidCommittee; the report prepared along with further steps that arerequired to be taken and the time-frame thereof are essentiallegislative functions which should not be ordinarily subjected tointerference or intervention of the Court. The constitutionalDdoctrine of separation of powers and the demarcation of therespective jurisdiction of the Executive, the Legislature and theJudiciary under the constitutional framework would lead the Courtto the conclusion that the exercise of the amendment of the Act,which is presently underway, must be allowed to be completedwithout any intervention of the Court. Any other view and anyEinterference, at this juncture, would negate the basic constitutionalprinciple that the legislature is supreme in the sphere of law-making.Reading down statute to make it workable in situation wherean exercise of amendment of the law is pending, will not be justifiedeither. perception, however strong, of the imminent need of theFlaw engrafted in the Act and its beneficial effects on the citizenryof democratic country, by itself, will not permit the Court tooverstep its jurisdiction. Judicial discipline must caution the Courtagainst such an approach.”[78]

58. While assessing the impact of the separation of powers uponGthe present controversy, certain precepts must be formulated. Separationof powers between the legislature, the executive and the judiciary is abasic feature of the Constitution. As foundational principle which iscomprised within the basic structure, it lies beyond the reach of theconstituent power to amend. It cannot be substituted or abrogated. While 78 Id, at page 173H

recognizing this position, decided cases indicate that the Indian Constitutiondoes not adopt separation of powers in the strict sense. Textbookexamples of exceptions to the doctrine include the power of the executiveto frame subordinate legislation, the power of the legislature to punishfor contempt of its privileges and the authority entrusted to the SupremeCourt and High Courts to regulate their own procedures by framingrules. In making subordinate legislation, the executive is entrusted bythe legislature to make delegated legislation, subject to its control. Therule making power of the higher judiciary has trappings of legislativecharacter. The power of the legislature to punish for contempt of itsprivileges has judicial character. These exceptions indicate that theseparation doctrine has not been adopted in the strict form in ourConstitution. But the importance of the doctrine lies in its postulate thatthe essential functions entrusted to one organ of the state cannot beexercised by the other. By standing against the usurpation of constitutionalpowers entrusted to other organs, separation of powers supports therule of law and guards against authoritarian excesses. Parliament andthe State Legislatures legislate. The executive frames policies andadministers the law. The judiciary decides and adjudicates upon disputesin the course of which facts are proved and the law is applied. Thedistinction between the legislative function and judicial functions isenhanced by the basic structure doctrine. The legislature is constitutionallyentrusted with the power to legislate. Courts are not entrusted with thepower to enact law. Yet, in constitutional democracy which is foundedon the supremacy of the Constitution, it is an accepted principle ofjurisprudence that the judiciary has the authority to test the validity oflegislation. Legislation can be invalidated where the enacting legislaturelacks legislative competence or where there is violation of fundamentalrights. law which is constitutionally ultra vires can be declared to beso in the exercise of the power of judicial review. Judicial review isindeed also part of the basic features of the Constitution. Entrustmentto the judiciary of the power to test the validity of law is an establishedconstitutional principle which co-exists with the separation of powers.Where law is held to be ultra vires there is no breach of parliamentaryprivileges for the simple reason that all institutions created by theConstitution are subject to constitutional limitations. The legislature, it iswell settled, cannot simply declare that the judgment of court is invalidor that it stands nullified. If the legislature were permitted to do so, itwould travel beyond the boundaries of constitutional entrustment. While

CDEF

Athe separation of powers prevents the legislature from issuing meredeclaration that judgment is erroneous or invalid, the law-making bodyis entitled to enact law which remedies the defects which have beenpointed out by the court. Enactment of law which takes away thebasis of the judgment (as opposed to merely invalidating it) is permissibleand does not constitute violation of the separation doctrine. That indeedBis the basis on which validating legislation is permitted.

59. This discussion leads to the conclusion that while the separationof powers, as principle, constitutes the cornerstone of our democraticConstitution, its application in the actual governance of the polity isnuanced. The nuances of the doctrine recognize that while the essentialCfunctions of one organ of the state cannot be taken over by the otherand that sense of institutional comity must guide the work of thelegislature, executive and judiciary, the practical problems which arise inthe unfolding of democracy can be resolved through robust constitutionalcultures and mechanisms. The separation doctrine cannot be reduced toDits descriptive content, bereft of its normative features. Evidently, it hasboth normative and descriptive features. In applying it to the IndianConstitution, the significant precept to be borne in mind is that no institutionof governance lies above the Constitution. No entrustment of power isabsolute.

EG functional relationship

60. What then does the above analysis tell us about the functionalrelationship of the work which is done by parliamentary committees andthe role of the court as an adjudicator of disputes? In assessing theissue, it must be remembered, that parliamentary committees owe theirFexistence to Parliament. They report to Parliament. They comprise ofthe members of Parliament. Their work consists of tendering advice tothe legislature. parliamentary committee does not decide lis betweencontesting disputants nor does it perform an adjudicatory function. Acommittee appointed by the House can undoubtedly receive evidence,including expert evidence, both oral and documentary. Select CommitteeGmay be appointed by the House to scrutinize Bill. When the committeeperforms its task, its report is subject to further discussion and debate inthe House in the course of which the legislative body would decide as towhether the Bill should be enacted into law. The validity of the advicewhich is tendered by parliamentary committee in framing itsHrecommendations for legislation cannot be subject to challenge before

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 expediencyor justification for the advice is matter to be considered by the legislatureand by it alone.

61. Department related standing committees are constituted byParliament to oversee the functioning of ministries/departments ofgovernment. It is through the work of these committees that Parliamentexacts the accountability of the executive. It is through the work ofthese committees that Parliament is able to assess as to whether thelaws which it has framed are being implemented in letter and spirit andto determine the efficacy of government policies in meeting the problemsof the day.

62. The contents of the report of parliamentary committee mayhave bearing on diverse perspectives. It is necessary to elucidate themin order to determine whether, and if so to what extent, they can formthe subject matter of consideration in the course of adjudication in acourt. Some of these perspectives are enumerated below:

(i) The report of parliamentary committee may contain astatement of position by government on matters of policy;

(ii) The report may allude to statements made by persons whohave deposed before the Committee;

(iii) The report may contain inferences of fact including on theperformance of government in implementing policies andlegislation;

(iv) The report may contain findings of misdemeanor implicatinga breach of duty by public officials or private individuals or anFevasion of law; or

(v) The report may shed light on the purpose of law, the socialproblem which the legislature had in view and the manner inwhich it was sought to be remedied.

63. The use of parliamentary history as an aid to statutoryconstruction is an area which poses the fewest problems. Inunderstanding the true meaning of the words used by the legislature, thecourt may have regard to the reasons which have led to the enactmentof the law, the problems which were sought to be remedied and the

Aobject and purpose of the law. For understanding this, the court mayseek recourse to background parliamentary material associated with theframing of the law. In his seminal work on the Interpretation of Statutes,Justice P Singh notes that the traditional rule of exclusion in EnglishCourts has over period of time been departed from in India as well topermit the court to have access to the historical background in which theBlaw was enacted. Justice P Singh[79] notes:

“The Supreme Court, speaking generally, to begin with, enunciatedthe rule of exclusion of Parliamentary history in the way it wastraditionally enunciated by the English Courts, but on many anoccasion, the court used this aid in resolving questions ofCconstruction. The court has now veered to the view[80] thatlegislative history within circumspect limits may be consulted bycourts in resolving ambiguities. But the courts still sometimes, likethe English courts, make distinction between use of materialfor finding the mischief dealt with by the Act and its use for findingDthe meaning of the Act. As submitted earlier this distinction isunrealistic and has now been abandoned by the House of Lords.”

64. Reports of parliamentary committees may contain statementof position by government on matters of policy. There is no reason inprinciple to exclude recourse by court to the report of the committee atEleast as reflection of the fact that such statement was made beforethe committee. Similarly, that statement was made before the committee- as historical fact - may be taken note of by the court in situationwhere the making of the statement itself is not contentious issue.

65. In matters involving public interest which come up before theFcourt, grievance is often made of the violation of the fundamentalrights of persons who by reason of poverty, ignorance or marginalizedstatus are unable to seek access to justice. Public interest litigation hasbeen perceived as social action litigation because relaxation of therules of standing has enabled constitutional courts to reach out to thosewho have suffered discrimination and prejudice. Whatever be the sourceGof such discrimination – the feudal and patriarchal structures of Indiansociety being among them – public interest litigation has enabled courts

79 Justice 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 SCCH745.

to develop flexible tools of decision making and pursue innovativeremedies. The writ of continuing mandamus is one of them. In the process,the violation of the fundamental rights of those groups of citizens whomay not be able to seek access to justice is sought to be remedied.Public interest litigation has emerged as powerful tool to provide justiceto the marginalized. In matters involving issues of public interest, courtshave been called upon to scrutinize the failure of the state or its agenciesto implement law and to provide social welfare benefits to those forwhom they are envisaged under legislation. Courts have intervened toensure the structural probity of the system of democratic governance.Executive power has been made accountable to the guarantee againstarbitrariness (Article 14) and to fundamental liberties (principally Articles19 and 21).

66. Committees of Parliament attached to ministries/departmentsof the government perform the function of holding governmentaccountable to implement its policies and its duties under legislation. Theperformance of governmental agencies may form the subject matter ofsuch report. In other cases, the deficiencies of the legislative frameworkin remedying social wrongs may be the subject of an evaluation by aparliamentary committee. The work of parliamentary committee maytraverse the area of social welfare either in terms of the extent to whichexisting legislation is being effectively implemented or in highlighting thelacunae in its framework. There is no reason in principle why the widejurisdiction of the High Courts under Article 226 or of this Court underArticle 32 should be exercised in manner oblivious to the enormouswork which is carried out by parliamentary committees in the field. Thework of the committee is to secure alacrity on the part of the governmentin alleviating deprivations of social justice and in securing efficient andaccountable governance. When courts enter upon issues of public interestand adjudicate upon them, they do not discharge function which isadversarial. The constitutional function of adjudication in matters ofpublic interest is in step with the role of parliamentary committees whichis to secure accountability, transparency and responsiveness ingovernment. In such areas, the doctrine of separation does not militateagainst the court relying upon the report of parliamentary committee.The court does not adjudge the validity of the report nor for that matterdoes it embark upon scrutiny into its correctness. There is functionalcomplementarity between the purpose of the investigation by the

Aparliamentary committee and the adjudication by the court. To deprivethe court of the valuable insight of parliamentary committee wouldamount to excluding an important source of information from the purviewof the court. To do so on the supposed hypothesis that it would amountto breach of parliamentary privilege would be to miss the wood for thetrees. Once the report of the parliamentary committee has been publishedBit lies in the public domain. Once Parliament has placed it in the publicdomain, there is an irony about the executive relying on parliamentaryprivilege. There is no reason or justification to exclude it from the purviewof the material to which the court seeks recourse to understand theproblem with which it is required to deal. The court must look at theCreport with robust common sense, conscious of the fact that it is notcalled upon to determine the validity of the report which constitutes advicetendered to Parliament. The extent to which the court would rely upon areport must necessarily vary from case to case and no absolute rule canbe laid down in that regard.D67. There may, however, be contentious matters in the report of aparliamentary committee in regard to which the court will tread withcircumspection. For instance, the report of the committee may contain afinding of misdemeanor involving either officials of the government orprivate individuals bearing on violation of law. If the issue before thecourt for adjudication is whether there has in fact been breach of dutyEor violation of law by public official or private interest, the courtwould have to deal with it independently and arrive at its own conclusionsbased on the material before it. Obviously in such case the finding bya Parliamentary Committee cannot constitute substantive evidence beforethe court. The parliamentary committee is not called upon to decide lis

For dispute involving contesting parties and when an occasion to do soarises before the court, it has to make its determination based on thematerial which is admissible before it. An individual whose conduct hasbeen commented upon in the report of parliamentary committee cannotbe held guilty of violation on the basis of that finding. In Jyoti HarshadMehta v The Custodian[81], this Court held that report of theGJanakiraman committee could not have been used as evidence by theSpecial Court. The court held:

“57. It is an accepted fact that the reports of the JanakiramanCommittee, the Joint Parliamentary Committee and the Inter- 81 (2009) 10 SCC 564H

Disciplinary Group (IDG) are admissible only for the purpose oftracing the legal history of the Act alone. The contents of thereport should not have been used by the learned Judge of theSpecial Court as evidence.”[82]

68. Section 57 of the Indian Evidence Act 1872 speaks of facts ofwhich the court must take judicial notice. Section 57 is comprised inPart II (titled ‘On proof’). Chapter III deals with facts which need notbe proved. Section 57(4) provides as follows:

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

(4). The course of proceeding of Parliament of the UnitedKingdom, of the Constituent Assembly of India, of Parliamentand of the legislatures established under any law for the timebeing in force in Province or in the State.”

In The Sole Trustee, Lok Shikshana Trust v TheCommissioner of Income Tax, Mysore[83], three judge Bench ofthis Court, while construing Section 57(4) made distinction betweenthe fact that particular statement is made in Parliament and thecorrectness of what is stated on question of fact. The former could berelied upon. However, the truth of disputable question of fact wouldhave to be independently proved before the court. Justice HR Khannaobserved thus:

“33. We find that Section 57, sub-section (4) of the Evidence Actnot only enables but enjoins courts to take judicial notice of thecourse of proceedings in Parliament assuming, of course, that it isrelevant. It is true that the correctness of what is stated, on aquestion of fact, in the course of parliamentary proceedings, canonly be proved by somebody who had direct knowledge of thefact stated. There is, however, distinction between the fact thata particular statement giving the purpose of an enactment wasmade in Parliament, of which judicial notice can be taken as partof the proceedings, and the truth of disputable matter of factstated in the course of proceedings, which has to be proved aliunde,

82 Id, at page 582

83 (1976) 1 SCC 254

Athat is to say, apart from the fact that statement about it wasmade in the course of proceedings in Parliament (see: Rt. Hon’bleJerald Lord Strickland v. Carmelo Mifud Bonnici [AIR 1935 PC34 : 153 IC 1] ; the Englishman Ltd. v. Lajpat Rai, ILR 37 Cal760: 6 IC 81: 14 CWN 945.”[84]

BA statement made by the Finance Minister while proposingamendment could, it was held, be taken judicial notice of. Judicial noticewould be taken of the fact that “such statement of the reason wasgiven in the course of such speech”.

In Onkar Nath v The Delhi Administration[85],another BenchCof 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 belowwere justified in taking judicial notice of the fact that on the datewhen the appellants delivered their speeches railway strike wasDimminent and that such strike was in fact launched on May 8,1974. Section 56 of the Evidence Act provides that no fact ofwhich the Court will take judicial notice need be proved. Section57 enumerates facts of which the Court “shall” take judicial noticeand states that on all matters of public history, literature, scienceor art the Court may resort for its aid to appropriate books orEdocuments of reference. The list of facts mentioned in Section 57of which the Court can take judicial notice is not exhaustive andindeed the purpose of the section is to provide that theCourt shall take judicial notice of certain facts rather than exhaustthe category of facts of which the Court may in appropriate casesFtake judicial notice. Recognition of facts without formal proof is amatter of expediency and no one has ever questioned the needand wisdom of accepting the existence of matters which areunquestionably within public knowledge. (See Taylor, 11th Edn.,pp. 3-12; Wigmore, Section 2571, footnote; Stephen’s Digest, notesto Article 58; Whitley Stokes’ Anglo-Indian Codes, Vol. II, p.G887.) Shutting the judicial eye to the existence of such facts andmatters is in sense an insult to commonsense and would tend toreduce the judicial process to meaningless and wasteful ritual.

84 Id, at page 272

85 (1977) 2 SCC 611

No court therefore insists on formal proof, by evidence, of notoriousfacts of history, past or present. The date of poll, the passingaway of man of eminence and events that have rocked thenation need no proof and are judicially noticed. Judicial notice, insuch matters, takes the place of proof and is of equal force.”[86]

In Baburao Alias P Samant v Union of India[87],the courtobserved thus:

“31. The Lok Sabha Debates and the Rajya Sabha Debates arethe journals or the reports of the two Houses of Parliament whichare printed and published by them. The court has to take judicialnotice of the proceedings of both the Houses of Parliament and isexpected to treat the proceedings of the two Houses of Parliamentas proved on the production of the copies of the journals or thereports containing proceedings of the two Houses of Parliamentwhich are published by them.”[88]

These observations were in the context, specifically, of theprovisions of the Evidence Act, including Section 57(4). The court heldthat the production of debates of the Lok Sabha and Rajya Sabhacontaining the proceedings of the two Houses of Parliament, relating tothe period between the time when the resolutions were moved in eachof the two Houses and the time when the resolutions were duly adoptedamounted to proof of the resolutions. The court was required to takejudicial notice under Section 57.

Conclusion

69. The issue which has been referred to the Constitution Benchis whether the report of Parliamentary Standing Committee can berelied upon in proceeding under Article 32 or Article 136 of theConstitution. Allied to this is whether parliamentary privileges and thedoctrine of separation of powers (shades of which find expression in theoften-used phrase ‘the delicate balance’) impose restraints on the abilityof the court to seek recourse to parliamentary reports.

70. In finding an answer to the questions in reference, this Courtmust of necessity travel from literal and perhaps superficial approach,to an understanding of the essence of what the Constitution seeks to

86 Id, at page 614 87 1988 (Supp.) SCC 401 88 Id, at page 414

Aachieve. At one level, our Constitution has overseen the transfer of politicalpower from colonial regime to regime under law of democraticrepublic. Legitimizing the transfer of political power is one, but only onefacet of the Constitution. To focus upon it alone is to miss significantelement of the constitutional vision. That vision is of about achieving asocial transformation. This transformation which the Constitution seeksBto achieve is by placing the individual at the forefront of its endeavours.Crucial to that transformation is the need to reverse the philosophy ofthe colonial regime, which was founded on the subordination of theindividual to the state. Liberty, freedom, dignity and autonomy havemeaning because it is to the individual to whom the Constitution holdsCout an assurance of protecting fundamental human rights. TheConstitution is about empowerment. The democratic transformation towhich it aspires places the individual at the core of the concerns ofgovernance. For colonial regime, individuals were subordinate to thelaw. Individuals were subject to the authority of the state and their well-

being was governed by the acceptance of destiny wedded to its power.DThose assumptions which lay at the foundation of colonial rule haveundergone fundamental transformation for nation of individualsgoverned by the Constitution. The Constitution recognises their rightsand entitlements. Empowerment of individuals through the enforcement

of their rights is the essence of the constitutional purpose. Hence, inEunderstanding the issues which have arisen before the Court in the presentreference, it is well to remind ourselves that since the Constitution isabout transformation and its vision is about empowerment, our readingof precepts drawn from colonial past, including parliamentary privilege,must be subjected to nuance that facilitates the assertion of rights andaccess to justice. We no longer live in political culture based on theFsubordination of individuals to the authority of the State. Our interpretationof the Constitution must reflect keen sense of awareness of the basicchange which the Constitution has made to the polity and to itsgovernance.

71. distinguished South African Judge, Albie Sachs has spokenGof the importance of understanding the value of constitutionaltransformation. In his book titled ‘The Strange Alchemy of Life andLaw’[89], explaining the role of the constitutional court, Sachs has this tosay:

89 Justice Albie Sachs, The Strange Alchemy of Life and Law (Oxford University PressH2009) pages 32-33.

“It is difficult to analyse the impact that court decisions have onactual historical events. It may well be that the publicity given tothe case, and the evidence and arguments presented had moreimpact on public life than did the actual decision. Yet any amountof forensic combat, however bitter and prolonged, is better than asingle bullet. Submitting the harsh conflicts of our times to legalscrutiny – conducted transparently and in the light of internationallyaccepted values of fairness and justice – was telling rebuttal ofmercenarism and violence, whether from or against the State. Itresponded in practical way to the immediate issues, and at thesame time induced governments, judiciaries, and law enforcementagencies in three countries to engage with each other and carefullyconsider their powers and responsibilities under the internationallaw. It reaffirmed to the South African public that we were livingin constitutional democracy in which all exercises of powerwere subject to constitutional control. It said somethingimportant about the kind of country in which we lived and aboutthe importance of principled and reasoned debate. It underlinedthat we had moved from culture of authority andsubmission to the law, to one of justification and rights underthe law.” (emphasis supplied)

72. In India, no less than in South Africa it is important to realisethat citizens live in constitutional democracy in which every exerciseof power is subject to constitutional control. Every institution of the Stateis subject to the Constitution. None lies above it. The most importantfeature of Sachs’ vision relevant to our Constitution is that Indian societymust move “from the culture of authority and submission to the law, toone of justification and rights under the law”.

73. Once we place the fulfilment of individual rights and humanfreedoms at the forefront of constitutional discourse, the resolution ofthe present case presents no difficulty. Individuals access courts to remedyinjustice. As institutions which are committed to the performance of aduty to facilitate the realisation of human freedom, High Courts as wellas this Court are under bounden obligation to seek and pursue allinformation on the causes of injustice. Where the work which has beenperformed by coordinate constitutional institution – in this case aParliamentary Committee, throws light on the nature of the injustice orits causes and effects, constitutional theory which has to aid justice cannot

ABC

Alead us to hold that the court must act oblivious to the content of thereport. History and contemporary events across the world are reminderthat black-outs of information are used as willing ally to totalitarianexcesses of power. They have no place in democracy. Placing relianceon the report of Parliamentary Committee does not infringeparliamentary privilege. No Member of Parliament is sought to be madeBliable for what has been said or for vote tendered in the course of adebate. The correctness or validity of the report of ParliamentaryCommittee is not matter which can be agitated before the Court nordoes the Court exercise such function. Where an issue of fact becomescontentious, it undoubtedly has to be proved before court independentlyCon the basis of the material on the record. In other words, where factreferred to in the report of the Parliamentary Committee is contentious,the court has to arrive at its own finding on the basis of the materialadduced before it.74. Parliamentary Committees are an intrinsic part of the processDby which the elected legislature in democracy exacts accountability onthe part of the government. Department related Parliamentary StandingCommittees undertake the meticulous exercise of scrutinizing theimplementation of law, including welfare legislation and the performanceof the departments of the State. The purpose of law is to promote orderfor the benefit of the citizen and to protect rights and entitlementsEguaranteed by the Constitution and by statute. Access to justice as ameans of securing fundamental freedoms and realizing socio-economicentitlements 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 more realistic perspectiveFwhich recognizes the complementarity in the work which is performedby institutions of governance. Judicial review is founded on the need toensure accountable governance in the administration of law as aninstrument of realizing the rights guaranteed by the Constitution. If thefunction of judicial review in facilitating the realization of socio-economicrights is construed in the context of the modern notion of separation ofGpowers, there is no real conflict between the independence of the judicialprocess and its reliance on published reports of ParliamentaryCommittees. Ultimately it is for the court in each case to determine therelevance of report to the case at hand and the extent to which reliancecan be placed upon it to facilitate access to justice. Reports of

Parliamentary Committees become part of the published record of theState. As matter of principle, there is no reason or justification toexclude them from the purview of the judicial process, for purposessuch as understanding the historical background of law, the nature ofthe problem, the causes of social evil and the remedies which mayprovide answers to intractable problems of governance. The court willin the facts of case determine when matter which is contentiousbetween the parties would have to be adjudicated upon independentlyon the basis of the evidence adduced in accordance with law.

In the circumstances, the reference is answered by holding that:

(i) As matter of principle, there is no reason why reliance uponthe report of Parliamentary Standing Committee cannot be placed inproceedings under Article 32 or Article 136 of the Constitution;

(ii) Once the report of Parliamentary Committee has beenpublished, reference to it in the course of judicial proceedings will notconstitute breach of parliamentary privilege;

(iii) The validity of the report of Parliamentary Committee cannotbe called into question in the court. No Member of Parliament or personcan be made liable for what is stated in the course of the proceedingsbefore Parliamentary Committee or for vote tendered or given; and

(iv) When matter before the court assumes contentiouscharacter, finding of fact by the court must be premised on the evidenceadduced 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 ChiefJustice for assignment of the case for disposal.

ASHOK BHUSHAN, J. 1. This Constitution Bench is requiredto answer some important Constitutional issues which also involve issuesrelating to delicate balance between the Parliament and the Judiciary.The Hon’ble Chief Justice has circulated His Lordships’ judgment whichhas been carefully read by me. Although I am in substantial agreementwith the conclusions arrived by My Lord the Chief Justice, but looking tothe importance of the issues involved I have penned my own views &conclusions.

A2. Whether acceptance and reliance on Parliamentary StandingCommittee Report by this Court while hearing Public Interest WritPetition amount to breach of any privilege of the Parliament, is the sum& substance of the questions referred to this Constitution Bench. Duringcourse of hearing of these Writ Petitions, learned senior counsel ofrespondent No. 8 (M.S.D. Pharmaceuticals Private Limited) raisedBobjection regarding admissibility & consideration of the ParliamentaryCommittee Report, considering which objections following two questionshave been referred to be answered:

“(i) Whether in litigation filed before this Court either underArticle 32 or Article 136 of the Constitution of India, the CourtCcan refer to and place reliance upon the report of theParliamentary Standing Committee?

(ii) Whether such Report can be looked at for the purposeof reference and, if so, can there be restrictions for thepurpose of reference regard being had to the concept ofDparliamentary privilege and the delicate balance between theconstitutional institutions that Articles 105, 121 and 122 ofthe Constitution conceive?”

3. The background facts as disclosed by the two writ petitionsgiving rise to the above two questions need to be noted now:EWRIT PETITION (C) NO.558 OF 2012

The Writ Petition as Public Interest Litigation has been filed bythree petitioners, petitioner Nos.1 and 2 claim to be working for womenhealth whereas the Petitioner No.3 is registered Society working withwomen organisations to help them to improve their lives and livelihoodFand to seek justice for marginalised communities. In July, 2009, thepetitioners became aware of so called demonstration project workbeing carried out in States of Andhra Pradesh and Gujarat by PATH(respondent No.6), US based NGO along with the Indian Council ofMedical Research(ICMR) and Governments of Andhra Pradesh andGGujarat. In the above project about 32,000 young adolescent girls in theage group of 10-14 years were to be administered HPV (HumanPapilloma Virus) vaccines purported to be effective in preventing cervicalcancer. HPV vaccine, namely, “Gardasil” is manufactured by respondentNo.7- Glaxosmithkline Asia Pvt. Ltd. and “Cervarix” by respondent No.8-M.S.D. Pharmaceuticals Private Limited, licenced in India only in July,H

2008 and September, 2008 respectively by Drug Controller General ofIndia.

4. In July, 2009 vaccine Gardasil in Khammam District in AndhraPradesh was administered. Few girl childs died. Health activists wroteto the Ministry of Health pointing out concern about irregularities andhealth risk of the HPV vaccine. Women organisation sent representationsand also conducted fact finding enquiry. On 15[th] April, 2010, Governmentof India appointed Committee to enquire into “alleged irregularities inthe conduct of studies using Human Papilloma Virus(HPV) vaccine” byPATH in India. The final report of Committee was submitted on15.02.2011. Enquiry committee noted several discrepancies. TheParliamentary Standing Committee of Department of Health Research,Ministry of Health and Family Welfare while examining the demand forgrants (2010-11) of Department of Health Research took up the issue oftrial of HPV vaccine on children in Districts of Khammam, AndhraPradesh and Vadodara, Gujarat. Parliamentary Standing Committee(hereinafter referred to as “P.S.C.”) deliberated on the subject and heldvarious meetings. The Committee heard the UOI, ICMR, Departmentof Drugs Controller General of India and also took oral evidence. TheDepartmental Standing Committee submitted its report (72[nd] Report) toRajya Sabha on 30[th] August, 2013 which was also laid on the table ofLok Sabha on 30[th] August, 2013. The P.S.C. found various shortcomingsand lapses of the Government Departments, ICMR as well as on part ofthe respondent Nos.6 to 8. Various directions and recommendations wereissued by the Committee. Again detailed report, namely, 81[st] Reporton “action taken by the Government on the recommendations/observations contained in the 72[nd] Report on the alleged irregularities inthe conduct of studies using Human Papilloma Virus(HPV) vaccine byPATH” in India was submitted to Rajya Sabha on 23[rd] December, 2014and also laid on the table of Lok Sabha on 23[rd] December, 2014. Boththe reports have been brought on record.

Writ Petition (C) No. 921 of 2013

5. The Writ Petition as Public Interest Litigation has been filedby petitioners of which petitioner Nos. 1 and 2 are public trusts andpetitioner Nos. 3 and 4 are registered societies. The petitioners havequestioned the methods in which clinical trials for medicines includingvaccines are taking place in this country to the disadvantage of vulnerablegroups in the society including the poor, tribal, women and children. The

Afacts and pleadings in the writ petition are on the line of facts andpleadings as contained in Writ Petition (c) No. 558 of 2012, hence arenot repeated for brevity. Petitioners have prayed for various reliefsincluding declaration that HPV Vaccine Observational StudyDemonstration Project was Phase IV clinical trial within the meaningof various Rules in Drugs and Cosmetics Rules, 1945. Petitioners haveBmade several prayers including the prayers for grant of compensationand direction for investigation by Special Investigation Team of variousoffences committed by respondent Nos. 2 to 8.6. In both the writ petitions, most of materials including fact findingenquiry conducted by the petitioner No.1 in Writ Petition (C) No. 921 ofC2013(PIL-W), newspapers reports, articles, representations,correspondence have been referred to and relied. Apart from othermaterials, reference and reliance on 72[nd] Report presented on 30[th] August,2013 and 81[st] Report presented on 23[rd] December, 2014 to Rajya Sabhahave also been placed.D7. two Judge Bench of this Court while hearing the writ petitionshas posed several questions and issued various directions. In this contextthe Court passed various directions on 12.08.2014, 13.01.2015 and17.11.2015.8. When the matter was heard on 18.11.2015 by two Judge BenchEthis Court Stated : “Be it noted, substantial issue in law has arisen incourse of hearing of this case which pertains to exercise of power ofjudicial review when report of the Parliamentary Standing Committeeis filed before the Court.” After hearing the parties on 18.11.2015 thetwo Judge Bench of this Court by detailed order dated 05.04.2017 hasFreferred two questions as noted above to be answered by ConstitutionBench.

SUBMISSIONS

9. We have heard Shri Colin Gonsalves, learned senior advocatefor petitioner in Writ Petition (C) No.558/2012 and Shri Anand Grover,Glearned senior advocate for petitioner in Writ Petition (C) No.921 of2013. Shri Harish Salve and Shri Gourab Banerji, learned senior advocateshave appeared for respondent No.8-MSD Pharmaceuticals PrivateLimited. Shri Shyam Divan, learned senior advocate has appeared forPATH International. We have also heard Shri K.K.Venugopal, learnedAttorney General of India.H

10. Shri Salve submits that Parliamentary Committee Report canneither be looked into nor relied by this Court. Shri Salve, however, submitsthat there are two areas where Parliamentary Committee Report canbe relied i.e. (a) legislative history of statute and (b) Minister’sstatement in the House. The Members of Parliament as well as thosewho appear before the Parliamentary Committee are fully protected bythe legislative privileges of the members as well as of the Houses. Article105 sub-clause (2) of the Constitution of India provides that no memberof Parliament shall be liable to any proceedings in any court in respect ofanything said or any vote given by him in Parliament or any committeethereof. He further submits that as per Article 105 sub-clause (3) thepowers, privileges and immunities of each House of Parliament, and ofthe members and the committees of each House, is same as of those ofthe House of Commons as it exists on 26[th] November, 1950. Article 105sub-clause (4) extends the privileges as referred to in clauses (1), (2)and (3) to all persons who have the right to speak in, and otherwise totake part in the proceedings of any House of Parliament or any committeethereof. Evidence led in Court cannot be criticised. Same principlescan apply with regard to evidence taken by Parliamentary Committee.A committee of Parliament is part of Parliament.

11. The principal submission which has been canvassed by ShriSalve is that there being legislative privilege of all acts done in theParliament including report of Parliamentary Committee, the report cannotbe challenged in Court of Law. He submits that reliance of aParliamentary Committee Report also involves challenge to the reportby other parties. No adjudication can be entertained by this Court withregard to Parliamentary Committee Report, hence reliance placed bythe petitioner on the Parliamentary Committee Report is misplaced.12. Relying on Article IX of Bill of Rights 1688, Shri Salve submitsthat it confers on ‘proceedings in Parliament’ protection from being‘impeached or questioned’ in any ‘court or place out of Parliament’. Hesubmits that Indian Parliament is conferred the same privileges whichare enjoyed by the House of Commons, hence Parliamentary CommitteeReport can neither be relied nor questioned in any Court of Law. ShriSalve referred to various English cases and several judgments of thisCourt which shall be referred to while considering the submissions indetail.

A13. Shri K.K. Venugopal, learned Attorney General also contendsthat Parliamentary Reports cannot be relied in Court. He submits thatalthough there is no rigid separation of powers in the three wings ofStates but each wing of the States works in its own sphere. Parliamentis supreme in its proceedings which proceedings cannot be questioned inany Court of Law. The Parliamentary Reports cannot be made subjectBmatter of an issue in any proceeding of Court of Law or even in publicinterest litigation. He submits that all wings of the States have to workin their own spheres so as not to entrench upon the sphere allotted toother wing of State. He submitted that referring to report of ParliamentaryCommittee is sensitive issue of jurisdiction between Courts andCParliament which should be avoided by this Court. When the courtscannot adjudicate on Parliamentary Committee Report, what is the useof looking into it. Referring to Section 57(4) of the Evidence Act, 1872which provides that the Court shall take judicial notice of the proceedingsof the Parliament and the Legislature established under any law for thetime being in force, he submits that the substitutions were made in sub-Dclause (4) of Section 57 by Adaptation Order of 1950 which were ordersissued by the President and were not amendments made by Parliamentin Section 57. He submits that by Adaptation Order various words whichwere earlier used in Evidence Act, 1872 were changed after adoption ofConstitution which cannot be treated to be an act done by consciousEdeliberation of Legislature. He submits that historical facts as well asstatement of Minister in Parliament can be used with which there cannotbe any quarrel. He, however, submits that inferences in ParliamentaryCommittee Report are not acceptable. He submits that when any litigantwants to prove fact, he has to search material and produce evidenceand he cannot be allowed to take shortcut by placing reliance on theFParliamentary Committee Report. Parliamentary Committee Report, is,in manner, speech. Article 105 of the Constitution does not makeany distinction with reports which can be termed to as Social WelfareReports or other kinds of reports. He submits that there is total bar inlooking into the Reports of Parliament based on separation of power andGexpress provisions of Article 105(2) and 105(4) of the Constitution ofIndia. The very fact that Speaker can say ‘no’ with regard to anyparliamentary material, it has to be assumed that they operate as totalbar on use of parliamentary material as evidence. The protection whichis extended to Member of Parliament is also extended to theParliamentary proceedings and Parliamentary reports.H14. Shri Colin Gonsalves, learned senior counsel appearing forthe petitioner submits that the petitioner does not intend to challenge anypart of the Parliamentary Committee Report. The Writ Petitioner seeksnothing which may give rise to any question of breach of Parliamentaryprivileges. The writ petitioner is not asking this Court to take any factsstated in Parliamentary Report to be conclusive except which ispermissible under Section 57 of Evidence Act, 1872. As per the EvidenceAct, 1872, the Parliamentary proceedings are public documents whichare admissible in evidence. The petitioner does not ask for issuing anymandamus to enforce the Parliamentary Committee Report. The casescited by Shri Harish Salve in support of his submissions relate to breachof privileges of members of Parliament whereas present is not caseinvolving any breach of any privileges of member of Parliament. Neitherany question is being raised in the Writ Petition questioning any action orconduct of any member of Parliament nor petitioner is asking to initiateany proceeding against any member of Parliament. He submits that factsnoticed and stated in Parliamentary report can very well be relied. TheParliament by its procedure permits the Committee Report to be filed inthe Court, hence there is no prohibition in the Court in looking into theParliamentary Report.

15. It is further submitted that in the present case, it is theExecutive, which is trying to protect itself taking shield of Parliamentaryprivileges whereas Parliament does not take objection or offence of itsreports being relied and used. When the reports are published byParliament the process is over and thereafter there is no prohibition onreports being filed as evidence and used by all concern. This court shouldfollow the principles of the comity of the institution instead of relying onprinciples of separation of power and conflict of the institution. Underthe Right to Information Act, the Parliamentary Reports can be soughtfor and used by all concern. The present is an age of transparency, inwhich period the respondent cannot be heard in saying that benefits ofreport should be blacked out from the courts.

16. The 72[nd] and 81[st] Parliamentary Committee Reports play avery important role since they unearth the events of the illegal vaccinationdone on poor and malnourished young tribal girls and further it hascommented adversely on the role of Government agencies such as ICMRand DGCI and the State of Andhra Pradesh and Gujarat. The Government

Aofficials had appeared before the Parliamentary Committee and admittedseveral wrong doings.

17. Shri Anand Grover, learned senior advocate appearing forpetitioners in Writ Petition (C) No.921 of 2013 has adopted most of thesubmissions of Shri Colin Gonsalves but has raised certain additionalBsubmissions. Shri Grover submits that truth and contents of documentsare two entirely different things. When document is admitted what isproved is document and contents and not the truth. He submits thatthere is no question of challenging the findings of the ParliamentaryCommittee’s Report nor the reports are being questioned in this Court.Shri Grover has also referred to several English cases as well asCjudgments of Australian High Court, U.S. Supreme Court and of thisCourt. Referring to Section 16(3) of the Australian ParliamentaryPrivileges Act 1987, Shri Grover submits that law as applicable in Australiaby virtue of Section 16(3) is not applicable in India nor has been acceptedas law applicable in United Kingdom. He submits that ParliamentaryDCommittee Report which is measure of social protection should belooked into by the Court while rendering justice to the common manespecially in Public Interest Litigation.18. Shri Grover further submits that Parliamentary CommitteeReports can be relied only when they are published and becomes aEpublic document. He submits that statements can be looked into fromthe Parliamentary Committee Report but not the inferences and findings.The Parliamentary Committee Reports have been obtained from theHouse and no kind of privilege is involved.

19. Shri Shyam Divan, learned senior advocate appearing for PATHFsubmits that PATH is non-profit body operating in area of health.Referring to Section 57 of the Evidence Act, Shri Divan Submits thatsub-section (4) of Section 57 uses the phrase ‘course of proceeding’.He submits that the expression ‘course of proceeding’ does notcomprehend the Parliamentary reports. He submits that when in thisCourt anyone traverses or controverts Parliamentary CommitteeGReport, it is not in the interest of the comity of the institutions. He submitsthat references to Parliamentary proceedings are possible only in twoareas i.e. in interpreting Legislation and Statement of Minister. Hesubmits that entire report is to be examined as whole. The answeringrespondent in Writ Petition (C) No.921 of 2013 in its counter affidavit

has challenged the veracity of the findings of the Parliamentary StandingCommittee Report. The Parliamentary Committee is the functional organof the Parliament which also enjoys the privileges and immunity providedunder Article 105(2) of the Constitution of India. The reports ofParliamentary Committee are not amenable to judicial review.Parliamentary Standing Committee Reports are not to be relied in courtproceedings in as much as traversing or contesting the content of report,it may cause breach of Parliamentary privileges under Article 105 andArticle 122 of the Constitution of India. Challenge to such reports mayinvite contempt proceedings by Parliament for breach of privileges. TheParliamentary reports cannot be basis for any action in law both criminaland civil in any court including Writ Petition or Public Interest Litigation.

20. Shri Gourab Banerji, learned senior advocate, replying thesubmissions of Shri Colin Gonsalves and Shri Anand Grover, submitsthat recommendations and conclusions of Parliamentary CommitteeReports cannot be relied. moment there is fact finding in report, itcannot be looked into.

21. We have considered above submissions and perused the record.For answering the two questions referred to this Constitution Bench, asnoted above, we need to consider the following issues:

a. Whether by accepting on record Parliamentary StandingCommittee’s Report by this Court in case under Article 32or 136, any privilege of Parliament is breached.

b. In the event, Parliamentary Standing Committee’s Reportcan be accepted as an evidence, what are the restrictions inits reference and use as per the parliamentary privilegesenjoyed by the Legislature of this country.

c. Whether in traversing and questioning the reports, theprivate respondents may invite contempt of House.

22. The above issues being inter-connected, we proceed to examineall the issues together. While considering the above issues, we havedivided our discussion in different sub-heads/ topics for overallunderstanding of parliamentary privileges enjoyed by the IndianLegislature.

AA. PARLIAMENTARY PRIVILEGES

23. The origin and evolution of parliamentary privilege is traceablefrom High Court of British Parliament. In the early period of BritishHistory, the High Court of Parliament assisted the Crown in his judicialfunctions. The High Court of Parliament started sitting in two parts i.e.BHouse of Lords and House of Commons. Gradually, both the Housesclaimed various privileges which were recognised. Some of the privilegeswere claimed by both the Houses as rights from ancient times and someof the privileges were statutorily recognised. significant parliamentaryprivilege is recognised and declared by Article IX. Bill of Rights, 1688which conferred on ‘proceedings in Parliament protection from beingC‘impeached’ or ‘questioned’ in any court or place out of Parliament’. Bythe end of 19[th] Century most of the parliamentary privileges of House ofCommons were firmly established and recognised by the Courts also.

24. Erskine May in his treaties ‘Parliamentary Practice’,Twenty-fourth Edition’ has elaborately dealt with the privileges ofDParliament 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 enjoyedby each House collectively as constituent part of the HighCourt of Parliament; and by Members of each HouseEindividually, without which they could not discharge theirfunctions, and which exceed those possessed by other bodiesor individuals. Some privileges rest solely on the law andcustom of Parliament, while others have been defined bystature.”

25. The term ‘parliamentary privilege’ refers to the immunity andpowers possessed by each of the Houses of the Parliament and by theMembers of the Parliament, which allow them to carry out theirparliamentary functions effectively. Enumerating few rights andimmunities Erskine May states:G“Certain rights and immunities such as freedom from arrestor freedom of speech belong primarily to individual Membersof each House and exist because the House cannot performits functions without unimpeded use of the services of itsMembers. Other rights and immunities, such as the power topunish for contempt and the power to regulate its ownH

constitution, belong primarily to each House as collectivebody, for the protection of its Members and the vindicationof its own authority and dignity. Fundamentally, however, itis only as means to the effective discharge of the collectivefunctions of the House that the individual privileges areenjoyed by Members. The Speaker has ruled thatparliamentary privilege is absolute.

When any of these rights and immunities is disregarded orattacked, the offence is called breach of privilege, and ispunishable under the law of Parliament. Each House alsoclaims the right to punish contempts, that is, actions which,while not breaches of any specific privilege, obstruct orimpede it in the performance of its functions, or are offencesagainst its authority or dignity, such as disobedience to itslegitimate commands or libels upon itself, its Members or itsofficers. The power to punish for contempt has been judiciallyconsidered to be inherent in each House of Parliament not as

necessary incident of the authority and functions of alegislature (as might be argued in respect of certain privileges)but by virtue of their descent from the undivided High Courtof Parliament and in right of the lex et consuetudoparliamenti.”

26. The Halsbury’s Laws of England, Fifth Edition Vol. 78, whiletracing the ‘origin and scope of privileges’, states following:

“1076.Claim to rights and privileges. The House of Lordsand the House of Commons claim for their members, bothindividually and collectively, certain rights and privilegeswhich are necessary to each House, without which they couldnot discharge their functions, and which exceed thosepossessed by other bodies and individuals. In 1705 the Houseof Lords resolved that neither House had power to create anynew privilege and when this was communicated to theCommons, that House agreed. Each House is the guardian ofits own privileges and claims to be the sole judge of any matterthat may arise which in any way impinges upon them, and, ifit deems it advisable, to punish any person whom it considersto be guilty of breach of privilege or contempt of theHouse.”

A27. The privileges of the Indian Legislatures have also graduallydeveloped alongwith the progress in the constitutional development ofthe country. The Government of India Act, 1919 and 1935 constitutesuccessive milestone in the development of the legislative bodies in India.The Government of India Act, 1935 has been referred to as ConstitutionAct by Privy Council.B

28. Dr. B. R. Ambedkar, the Chairman of the Drafting Committeewhile debating on draft Article 85(Article 105 of the Constitution of India)and draft Article 169(Article 194 of the Constitution of India) has referredto Erskine May’s ‘Parliamentary Practice’ as source book of knowledgewith regard to immunities, privileges of Parliament. The Constitution ofCIndia by Article 105 and Article 194 gives constitutional recognition ofparliamentary privileges. We now proceed to examine the constitutionalprovisions pertaining to parliamentary privileges.

29. Article 105 of the Constitution of India deals with ‘powers,privileges and immunities of Parliament and its Members whereas ArticleD194 deals with the powers, privileges and immunities of State Legislaturesand their Members. Both the provisions are identical. To understand theconstitutional scheme, it is sufficient to refer to Article 105 of theConstitution of India. Article 105 of Constitution of India as it exists,provides as follows:

E“105. Powers, privileges, etc, of the Houses of Parliamentand of the Members and committees thereof.-

(1) Subject to the provisions of this Constitution and to therules and standing orders regulating the procedure ofParliament, there shall be freedom of speech in Parliament.

(2) No member of Parliament shall be liable to any proceedingsin any court in respect of any thing said or any vote given byhim in Parliament or any committee thereof, and no personshall be so liable in respect of the publication by or under theauthority of either House of Parliament of any report, paper,votes or proceedings.

(3) In other respects, the powers, privileges and immunitiesof each House of Parliament, and of the members and thecommittees of each House, shall be such as may from time totime be defined by Parliament by law, and, until so defined,

[shall be those of that House and of its members and committeesimmediately before the coming into force of section 15 of theConstitution (Forty-fourth Amendment) Act, 1978].

(4) The provisions of clauses (1), (2) and (3) shall apply inrelation to persons who by virtue of this Constitution havethe right to speak in, and otherwise to take part in theproceedings of, House of Parliament or any committeethereof 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). Article105 sub-clause (3) in its original form was as follows:

“Article 105(3). In other respects, the powers, privileges andimmunities of each House of Parliament, and of the membersand the committees of each House, shall be such as may fromtime to time be defined by Parliament by law, and, until sodefined “shall be those of the House of Commons of theParliament of the United Kingdom, and of its members andcommittees, at the commencement of this Constitution.”

31. Sub-clause (1) of Article 105 of the Constitution of India givesconstitutional recognition to ‘freedom of speech’ in Parliament. Sub-clause (2) of Article 105 enumerates the privileges and immunities ofMembers of Parliament. There is absolute protection to Member ofParliament against any proceeding in any court, in respect of anythingsaid or vote given by him in Parliament or any committee thereof. In thepresent case, we are called upon to examine the parliamentary privilegeswith regard to Parliamentary Standing Committee’s Report. Accordingto sub-clause (2) of Article 105 of Constitution of India no Member ofParliament can be held liable for anything said by him in Parliament or inany committee. The reports submitted by Members of Parliament isalso fully covered by protection extended under sub-clause (2) of Article105 of the Constitution of India. Present is not case of any proceedingagainst any Member of the Parliament for anything which has been saidin the Parliament Committee’s Report.

32. We now proceed to sub-clause (3) of Article 105 of theConstitution of India. Sub-clause (3) of Article 105 of the Constitution ofIndia begins with the words ‘in other respects’. The words ‘in otherrespects’ clearly refer to powers, privileges and immunities which are

Anot mentioned and referred to in sub-clauses (1) and (2) of Article 105.Sub-clause (3) of Article 105 makes applicable the same powers,privileges and immunities for Indian Parliament which were enjoyed bythe House of Commons at the time of enforcement of the Constitutionof India.

B33. The Constitution Bench in P. V. Narsimha Rao vs. State (CBI/SPE), (1998) 4 SCC 626 had elaborately considered Article 105 of theConstitution of India. In paragraph 28 and paragraph 29 of the judgmentfollowing has been stated:

“28. Clause (2) confers immunity in relation to proceedingsCin courts. It can be divided into two parts. In the first partimmunity from liability under any proceedings in any court isconferred on Member of Parliament in respect of anythingsaid or any vote given by him in Parliament or any committeethereof. In the second part such immunity is conferred on aperson in respect of publication by or under the authority ofDeither House of Parliament of any report, paper, votes orproceedings. This immunity that has been conferred underclause (2) in respect of anything said or any vote given by aMember in Parliament or any committee thereof and in respectof publication by or under the authority of either House ofEParliament of any report, paper, votes or proceedings, ensuresthat the freedom of speech that is granted under clause (1) ofArticle 105 is totally absolute and unfettered. (See: LegislativePrivileges case (1997) 66 DLT 618 (Del) pp. 441, 442.)29. Having secured the freedom of speech in Parliament tothe Members under clauses (1) and (2), the Constitution, inclause (3) of Article 105, deals with powers, privileges andimmunities of the House of Parliament and of the Membersand the committees thereof in other respects. The said clauseis in two parts. The first part empowers Parliament to define,by law, the powers, privileges and immunities of each Houseof Parliament and of the Members and the committees of eachHouse. In the second part, which was intended to betransitional in nature, it was provided that until they are sodefined by law the said powers, privileges and immunitiesshall be those of the House of Commons in the United Kingdomand of its Members and committees at the commencement of

the Constitution. This part of the provision was on the samelines as the provisions contained in Section 49 of theAustralian Constitution and Section 18 of the CanadianConstitution. Clause (3), as substituted by the Forty-fourthAmendment of the Constitution, does not make any change inthe content and it only seeks to omit future reference to theHouse of Commons of Parliament in the United Kingdom whilepreserving the position as it stood on the date of the cominginto force of the said amendment.”

B. PRIVILEGES OF HOUSE OF COMMONS

34. What are the privileges of the House of Commons which arealso enjoyed by the Indian Parliament by virtue of sub-clause (3) ofArticle 105 of the Constitution of India need to be examined for answeringthe issues which have arisen in the present case.

35. While dealing with the privileges of Parliament Erskine Mayin his treatise ‘Parliamentary Practice’ enumerates the followingprivileges:

1. Freedom of Speech

2. Freedom from Arrest

3. Freedom of Access

4. Favourable Construction

5. Privileges with respect to membership of the House

6. Power of commitment for breach of privilege or contempt.

36. Halsbury’s Laws of England in Fifth Edition Vol. 78, whiledealing with the privileges etc. claimed by both the Houses ‘enumeratesprivileges’:

1. Exclusive cognisance of proceedings

2. Freedom of Speech and proceedings in Parliament

3. Contempts

4. Freedom from Arrest

5. Protection of witnesses and others before Parliament

6. Power to exclude the public.

A37. The main privileges which are claimed by the House ofCommons were noticed by the Constitution Bench of this Court in SpecialReference No. 1 of 1964 (UP Assembly Case) AIR 1965 SC 745 inpara 73 and 74 which are quoted as below:

“73. Amongst the other privileges are: the right to excludeBstrangers, the right to control publication of debates andproceedings, the right to exclusive cognizance of proceedingsin Parliament, the right of each House to be the sole judge ofthe lawfulness of its own proceedings, and the right impliedto punish its own members for their conduct in ParliamentIbid, p. 52-53.

74. Besides these privileges, both Houses of Parliament werepossessed of the privilege of freedom from arrest ormolestation, and from being impleaded, which was claimedby the Commons on ground of prescription....”

38. M. N. Kaul and S. L. Shakdher in ‘Practice & ProcedureDof Parliament’, Seventh Edition published by Lok Sabha Secretariathave enumerated ‘Main privileges of Parliament’ to the following effect:

“Main Privileges of Parliament

Some of the privileges of Parliament and of its members andEcommittees are specified in the Constitution, certain statutesand the Rules of Procedure of the House, while others continueto be based on precedents of the British House of Commonsand on conventions which have grown in this country.

Some of the more important of these privileges are:F(i) Privileges specified in the Constitution:

Freedom of speech in Parliament Art. 105(1).

Immunity to member from any proceedings in any court inrespect of anything said or any vote given by him inGParliament or any committee thereof Art. 105(2).

Immunity to person from proceedings in any court in respectof the publication by or under the authority of either Houseof Parliament of any report, paper, votes or proceedings Ibid.

Prohibition on the courts to inquire into proceedings ofHParliament Art. 122.

Immunity to person from any proceedings, civil or criminal,in any court in respect of the publication in newspaper of asubstantially true report of any proceedings of either Houseof Parliament unless the publication is proved to have beenmade with malice. This immunity is also available in relationto reports or matters broadcast by means of wireless telegraphyArt. 361 A.

(ii) Privileges specified in Statutes:

Freedom from arrest of members in civil cases during thecontinuance of the session of the House and forty days beforeits commencement and forty days after its conclusion CPS s.135 A-For further details, see sub-head ‘Freedom from Arrestin Civil Cases’ infra.

(iii) Privileges specified in the Rules of Procedure and Conductof Business of the House:

Right of the House to receive immediate information of thearrest, detention, conviction, imprisonment and release of amember Rules 229 and 230.

Exemption of member from service of legal process andarrest within the precincts of the House Rules 232 and 233.

Prohibition of disclosure of the proceedings or decisions ofa secret sitting of the House Rule 252.

(iv) Privileges based upon Precedents: Members or officersof the House cannot be compelled to give evidence or toproduce documents in courts of law, relating to theproceedings of the House without the permission of the House1R (CPR – 1LS).

Members or officers of the House cannot be compelled toattend as witness before the other House or committee thereofor before House of State Legislature or committee thereofwithout the permission of the House and without the consentof the member whose attendance is required 6R (CPR-2LS).

In addition to the above-mentioned privileges and immunities,each House also enjoys certain consequential powersnecessary for the protection of its privileges and immunities.

AThese powers are:

to commit persons, whether they are members or not, forbreach of privilege or contempt of the House P.D., 1961, Vol.V-2, Pt. III, pp. 51-52 (Rajasthan Vidhan Sabha Case, 10April 1954) 1974, Vol. XIX-2, pp. 42-43 and 1975, Vol. XX-1,Bpp. 78 (shouting of slogans and carrying of arms by ‘visitorsto Lok Sabha); Homi D. Mistry v. Nafisul Hassan – the BlitzCase, I.L.R. 1957, Bombay 218; the Searchlight Case, A.I.R.1959 S.C. 395; C. Subramaniam’s Case, A.I.R. 1968, Madras10.

to compel the attendance of witnesses and to send forpersons, papers and records Rules 269 and 270, HarendraNath Barua v. Dev Kant Barua, A.I.R. 1958, Assam 160.

to regulate its procedure and the conduct of its businessArt. 118(1)

to prohibit the publication of its debates and proceedings,The Searchlight Case and to exclude strangers Rule 387.”

39. The privileges of Indian Parliament, which have beenenumerated above, are the privileges which were enjoyed by the BritishHouse of Commons. From the parliamentary privileges as enumeratedEabove, it is clear that there is complete immunity to the Members ofParliament from any proceeding for anything said in any committee ofthe Parliament. Present is not case where any proceedings arecontemplated against any Member of Parliament for anything whichhas been said in report of Committee, involving breach of anyprivilege under sub-clause (2) of Article 105 of the Constitution of India.F

40. The question to be considered, is as to whether, there is anybreach of privileges of Parliament in accepting, referring and relying ona Parliamentary Committee Report by this Court.

C. THE ROLE OF PARLIAMENTARY COMMITTEES

41. The Parliament is legislative wing of the Union. The Councilof Ministers headed by the Prime Minister is collectively responsible tothe House of the People. The role of Parliament is thus not confined tomere transacting legislative business. In the representative parliamentarydemocracy, the role of Parliament has immensely increased and is pivotalHfor 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 agreat deal of important work without passing statutes orhearing causes. In the first place they exercise constantsupervision of all governmental affairs. The ministers of theking 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 longerremained restricted merely to legislating. Parliament has, infact emerged as multi-functional institution encompassingin its ambit various roles viz. developmental, financial andadministrative surveillance, grievance ventilation andredressal, national integrational, conflict resolution,leadership recruitment and training, educational and so on.The multifarious functions of Parliament make it thecornerstone on which the edifice of Indian polity stands andevokes admiration from many quarter. “

44. The business of Parliament is transacted in accordance withthe rules of procedure as framed under Article 118 of the Constitution ofIndia. Both the Houses of the Parliament have made rules for regulatingits procedure and conduct of its business. The Rajya Sabha has framedrules, namely, ‘The Rules of Procedure and Conduct of Business in theCouncil of States(Rajya Sabha)’, which were brought into force w.e.f.01.07.1964. The Rules of Procedure and Conduct of Business in LokSabha were framed and published in the Gazette of India Extra-ordinaryon 17.05.1952.

45. Various committees of both Rajya Sabha and Lok Sabha areentrusted with enormous duties and responsibilities in reference to thefunctions of the Parliament. Maitland in ‘Constitutional History ofEngland’ while referring to the committees of the Houses of BritishParliament noticed the functions of the committees in the following words:

“.....Then again by means of committees the Houses nowexercise what we may call an inquisitorial power. If anything

Ais going wrong in public affairs committee may be appointedto investigate the matter; witnesses can be summoned to giveevidence on oath, and if they will not testify they can becommitted for contempt. All manner of subjects concerningthe public have of late been investigated by parliamentarycommissions; thus information is obtained which may be usedBas basis for legislation or for the recommendation ofadministrative reforms.”

46. Chapter IX of the Rajya Sabha Rules dealing with thelegislation provides for Select Committees on Bills, procedure of thepresentation after report of the Select / Joint Committee. The RulesCprovide for various committees including Committee on SubordinateLegislation, Committee on Government Assurances and othercommittees. Chapter XXII deals with ‘Departmental RelatedParliamentary Standing Committees’. Rule 268 which provides for‘Departmental Select Committees’ is as follows:

D“268. Department-related Standing Committees

(1) There shall be Parliamentary Standing Committees of theHouses (to be called the Standing Committees) related toMinistries/Departments.

E(2) Each of the Standing Committees shall be related to theMinistries/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 saidSchedule from time to time in consultation with each other.”

F47. Rule 270 deals with functions of the Standing Committeeswhich are to the following effect:

“270. Functions

Each of the Standing Committees shall have the followingfunctions, namely:-

(a) to consider the Demands for Grants of the relatedMinistries/Department and report thereon. The report shall notsuggest anything of the nature of cut motions;

(b) to examine Bills, pertaining to the related Ministries/

Departments, referred to the Committee by the Chairman orthe Speaker, as the case may be, and report thereon;

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

(d) to consider national basic long term policy documentspresented to the Houses, if referred to the Committee by theChairman or the Speaker, as the case may be, and reportthereon:

Provided that the Standing Committees shall not considermatters of day–to-day administration of the related Ministries/Departments.”

48. Rule 277 provides that the Report of the Standing Committeeshall have persuasive value. Schedule III of the Rules deals with the‘Allocation of various Ministries/Departments related to ParliamentaryStanding Committee’. At Item No. 7 is ‘Committee on Health and FamilyWelfare’ which relates to Department of Health and Family Welfare.

49. Present is case where Parliamentary Standing Committeewhich has submitted the report is the Parliamentary Standing Committeeon Health and Family Welfare. M. N. Kaul and S. L. Shakdher intheir treatise on ‘Practice and Procedure of Parliament’ publishedby Lok Sabha Secretariat, dealing with the business of Committees statedthe following:

“Parliament transacts great deal of its business throughCommittees. These Committees are appointed to deal withspecific items of business requiring expert or detailedconsideration. The system of Parliamentary Committees isparticularly useful in dealing with matters which, on accountof their special or technical nature, are better considered indetail by small number of members rather than by the Houseitself. Moreover, the system saves the time of the House forthe discussion of important matters and prevents Parliamentfrom getting lost in details and thereby losing hold on mattersof policy and broad principles.”

50. The reports which are submitted by the DepartmentalParliamentary Standing Committees are reports of matters entrusted toit by Parliament, by the Speaker. Parliament to which Council of Ministers

Aare responsible, supervises the various works done by differentDepartments of the Government. Apart from the supervision, thecommittees also make recommendations and issue directions. Directionsand recommendations are to be implemented by different GovernmentDepartments and action taken reports are submitted before theParliament to be considered by Departmental Standing Committees. TheBfunctions of the committees thus, play an important role in functioning ofthe entire Government which is directly related to the welfare of thepeople of the country.

D. PUBLICATION OF PARLIAMENTARY REPORTS

C51. The Reports of the Parliamentary Standing Committees andother decisions and resolutions of the Parliament are published underthe authority of House. Publication of proceedings of Parliament servespublic purpose. Members of British Parliament in earlier years hadtreated publication of its proceedings as breach of privilege. However,subsequently, the Members of British Parliament have permitted theDpublication of its proceedings in Hansard. As early as, in the year 1868Cock Burn, CJ. in Wason v. Walter, 1869 QB Vol. 4 at p. 73 held thatit is of paramount public and national importance that the proceedings ofthe House of Parliament shall be communicated to the people. CockBurn, CJ, at page 89 held the following:

‘’….It seems to us impossible to doubt that it is of paramountpublic and national importance that the proceedings of thehouses of parliament shall be communicated to the public,who have the deepest interest in knowing what passes withintheir walls, seeing that on what is there said and done, thewelfare of the community depends. Where would be ourconfidence in the government of the country or in thelegislature by which our laws are framed, and to whose chargethe great interests of the country are committed, -where wouldbe our attachment to the constitution under which we live,-ifthe proceedings of the great council of the realm were shroudedin secrecy and concealed from the knowledge of the nation?How could the communications between the representativesof the people and their constituents, which are so essential tothe working of the representative system, be usefully carriedon, if the constituencies were kept in ignorance of what theirrepresentatives are doing? What would become of the right

of petitioning on all measures pending in parliament, theundoubted right of the subject, if the people are to be kept inignorance of what is passing in either house? Can any manbring himself to doubt that the publicity given in modern timesto what passes in parliament is essential to the maintenanceof the relations subsisting between the government, thelegislature, and the country at large?....”

52. Further, it was held ‘no’ subject of parliamentary discussionwhich more requires to be made known than an inquiry relating to it.Cock Burn CJ. further held that although each House by standingorders prohibits the publication of its debate but each House not onlypermits, 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 alsosanctions and encourages, the publication of its proceedings,and actually gives every facility to those who report them.Individual members correct their speeches for publication inHansard or the public journals, and in every debate reportsof former speeches contained therein are constantly referredto. Collectively, as well as individually, the members of bothhouses would deplore as national misfortune the withholdingtheir debates from the country at large. Practically speaking,therefore, it is idle to say that the publication of parliamentaryproceedings is prohibited by parliament....”

53. Under the Rule 379 of Lok Sabha, Secretary General isauthorised to prepare and publish the full report of the proceedings ofthe House under the direction of the Speaker. Parliament has also passeda legislation, namely, the ‘Parliamentary Proceedings (Protection ofPublication) Act, 1977’ which provides that publication of reports ofparliamentary proceedings is privileged.

Section 3 of the Act is as follows: -

“Section 3. Publication of reports of parliamentary proceedingsprivileged:

(1) Save as otherwise provided in sub-section (2), no personshall be liable to any proceedings, civil or criminal, in any

Acourt in respect of the publication in newspaper of asubstantially true report of any proceedings of either Houseof Parliament unless the publication is proved to have beenmade with malice.

(2) Nothing in sub-section (1) shall be construed as protectingBthe publication of any matter, the publication of which is notfor the public good. “

54. By Constitution (Forty Fourth Amendment) Act, 1978, Article361A was inserted in the Constitution providing for ‘protection ofpublication of proceedings by Parliament and State Legislatures’. ArticleC361A is as follows:“Art. 361A . Protection of publication of proceedings ofParliament and State Legislatures.-

(1) No person shall be liable to any proceedings, civil orcriminal, in any court in respect of the publication in aDnewspaper of substantially true report of any proceedingsof either House of Parliament or the Legislative Assembly, or,as the case may be, either House of the Legislature of State,unless the publication is proved to have been made withmalice:

EProvided that nothing in this clause shall apply to thepublication of any report of the proceedings of secret sittingof either House of Parliament or the Legislative Assembly, or,as the case may be, either House of the Legislature, of State.

(2) Clause (1) shall apply in relation to reports or mattersFbroadcast, by means of wireless telegraphy as part of anyprogramme or service provided by me ans of broadcastingstation as it applies in relation to reports or matters publishedin newspaper.

Explanation.—In this article, “newspaper” includes newsGagency report containing material for publication in anewspaper.”

55. The rules framed under Article 118 of the Constitution of Indiathus clearly permit the publication of parliamentary proceedings. Apartfrom publication of the proceedings of the Parliament, including the reports

of the committees, now, they are also permitted to be broadcast onelectronic media. The publication of the reports not being only permitted,but also are being encouraged by the Parliament. The general public arekeenly interested in knowing about the parliamentary proceedingsincluding parliamentary reports which are steps towards the governanceof the country.

56. At this juncture, it is relevant to note that as per rules framedunder Article 118 of the Constitution of India, both for Lok Sabha andRajya Sabha, the Parliamentary Standing Committees are to follow theprocedure after constitution of the committee and till the reports aresubmitted to the Speaker. During the intervening period, when thepreparation of reports is in process and it is not yet submitted to theSpeaker and published, there is no right to know the outcome of thereports. Learned counsel for both the petitioners have submitted that theright to know about the reports only arises when they have been publishedfor use of the public in general. Thus, no exception can be taken in thepetitioners obtaining 72[nd] and 81[st] Reports of Parliamentary StandingCommittee.

E. RULES AND PROCEDURES REGARDINGPERMISSION FOR GIVING EVIDENCE IN COURTSREGARDING PROCEEDINGS IN PARLIAMENT

57. The papers and proceedings of Parliament have been permittedto 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 SabhaSecretariat, where on this subject following has been stated:

“Evidence in Courts Regarding Proceedings in Parliament

Leave of the House is necessary for giving evidence in acourt of law in respect of the proceedings in that House orcommittees thereof or for production of any documentconnected with the proceedings of that House of Committeesthereof, or in the custody of the officers of that House.According to the First Report of the Committee of Privilegesof the Second Lok Sabha, “no member or officer of the Houseshould give evidence in Court of law in respect of anyproceedings of the House or any Committees of the House orany other document connected with the proceedings of the

House or in the custody of the Secretary-General without theleave of the House being first obtained”.

When the House is not in session, the Speaker may, inemergent cases, allow the production of relevant documentsin courts of law in order to prevent delays in the administrationof justice and inform the House accordingly of the fact whenit reassembles or through the Bulletin. However, in case thematter involves any question of privilege, especially theprivilege of witness, or in case the production of thedocument appears to him to be subject for the discretion ofthe House itself, the Speaker may decline to grant the requiredpermission without leave of the House.

Whenever any document relating to the proceedings of theHouse or any committee thereof is required to be produced ina court of law, the Court or the parties to the legal proceedingshave to request the House stating precisely the documentsrequired, the purpose for which they are required and thedate by which they are required. It has also to be specificallystated in each case whether only certified copy of thedocument should be sent or an officer of the House shouldproduce it before the court.”

58. After the enforcement of Right of Information Act, 2005, onthe basis of report submitted by the Committee of Privileges, theprocedure for making available documents relating to the proceedingsof the House has been modified. Kaul and Shakdher had noticed thedetail in the above regard in Chapter XI dealing with powers, privilegesand immunities of Houses, their Committees and Members to thefollowing effect:

“The Committee of Privileges, Fourteenth Lok Sabha, feltthat it was about time that the procedure for dealing with therequests for documents relating to proceedings of the House,its Committees etc., received from Courts of Law andinvestigating agencies were given fresh look, particularlyin the light of the provisions of the Right to InformationAct,2005. The Committee, with the permission of the Speaker,took up the examination of the matter. The Twelfth Report inthe matter was presented to the Speaker Lok Sabha on 28

April 2008 and laid on the Table of the House on 30 April2008. The Report was adopted by the House on 23 October2008.

The Committee in their Report recommended the followingprocedure:

(I) Procedure for making requests for documents relating to theproceedings of the House or of any Committee of the House:

A. If request for documents relating to proceedings of theHouse or of any Committee of the House is made by aCourt or by the parties to legal proceedings before aCcourt, the court or the parties to the proceedings as thecase may be, shall specify the documents required, thepurpose for which they are required and the date bywhich they are required. It should also be specificallystated in each case whether only certified copies orphotocopies of the documents should be sent or anDofficer of the House should produce it before the court.

(II) Procedure for dealing with requests for documents relatingto proceedings of the House or any Committee of the House.

III. Procedure for dealing with requests from courts orinvestigating agencies for documents other than thoserelating to the proceedings of the House or any Committee ofthe House, which are in the custody of the Secretary-General.

IV. The question whether document relates to theproceedingsof the House or any Committee of the House shall be decidedby the Speaker and his decision shall be final.

V. Documents relating to the proceedings of the House or anyCommittee of the House which are public documents shouldbe taken judicialnotice of and requests for certified copiesthereof may not be ordinarily made unless there are sufficientreasons for making such requests.

AVI. Procedure after the Report of the Committee of Privilegeshas been presented or laid on the Table of the House.”

59. Learned counsel for the respondents in his compilation hasgiven Third Edition (2017) of Raj Sabha at Work, wherein at page 257the subject “Production of documents before Court” is mentioned.BFrom page 257 to page 259 various instances have also been mentionedwhereas on request received from Court for production of documents,

due permission was granted and documents were made available to theCourts. At page 259 reference of the request received from SessionsJudge, Cuddalore, for certified copy of Attendance Register of RajyaSabha was made. The extracts from relevant file has been quoted whichCis to the following effect:

“A request was received from the Sessions Judge, Cuddalore,for certified extracts from the Attendance Register from 1March 1963 to 15 March 1963, in the Rajya Sabha, showingthe presence and attendance of Shri R. Gopalakrishnan,Dmember of the Rajya Sabha. As the House was not in sessionwhen the said request was received, the Chairman grantedpermission to send the relevant extracts from the AttendanceRegister duly certified to the Sessions Judge. The extractswere sent on 30 January 1964, and the Deputy ChairmanEinformed the House accordingly.

As regards the production of printed/published debates ofthe House or reference to them in court, view was heldthat no leave of the House was required for the purpose.Under Section 78 of the Evidence Act, 1872, the proceedingsFof Legislatures could be proved by copies thereof, printed byorder of the Government. The question of obtaining the leaveof the House would arise only if court required the assistanceof any of the members or officers in connection with theproceedings of the House or production of documents in thecustody of the Secretary-General of the House.”

60. From the above discussion it is clear that as matter of factthe Parliamentary materials including reports and other documents havebeen sent from time to time by the permission of the Parliament itself tobe given as evidence in Courts of law.

F. THE APPLICABILITY OF THE INDIAN EVIDENCEACT, 1872, IN THE CONTEXT OF PARLIAMENTARYPROCEEDINGS.

61. Learned counsel for the petitioner has placed reliance onSection 57 of the Evidence Act. Section 57 provides for “Facts of whichCourt must take judicial notice”. Section 57 sub-section (4) is relevantwhich is quoted as below:

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

(1) All laws in force in the territory of India;

(4) The course of proceeding of Parliament of the UnitedKingdom, of the Constituent Assembly of India, of Parliamentand of the legislatures established under any laws for thetime being in force in Province or in the States;

In all these cases, and also on all matters of public history,literature, science or art, the Court may resort for its aid toappropriate books or documents of reference.

If the Court is called upon by any person to take judicialnotice of any fact, it may refuse to do so unless and until suchperson produces any such book or document as it mayconsider necessary to enable it to do so.”

62. plain reading of Section 57 sub-section (4) makes it clearthat the course of proceeding of Parliament and the Legislature,established under any law are facts of which judicial notice shall betaken by the Court.

63. Shri Shyam Divan in reference to Section 57 submits thatParliamentary Standing Committee Reports are not covered by expression“course of proceeding of Parliament”, hence no benefit can be taken bythe petitioner of this provision. The expression “course of proceeding ofParliament” is an expression of vide import. The Parliamentary

ACommittee is defined in Rule 2 of Rules of Lok Sabha in following manner:“Parliamentary Committee means Committee which isappointed or elected by the House or nominated by theSpeaker and which works under the direction of the Speakerand presents its report to the House or to the Speaker and theBSecretariat for which is provided by the Lok SabhaSecretariat.”

64. Article 118 sub-clause (1) read with Rules framed for conductof business in Lok Sabha and Rajya Sabha makes it clear that theproceedings of Parliamentary Standing Committee including its ReportCare proceedings which are covered by the expression “course ofproceeding of Parliament”. Thus, we do not find any substance in theabove submission of Shri Shyam Divan.

65. Now submission of learned Attorney General in reference toSection 57(4) needs to be considered.D

66. The President exercises power under Article 372 sub-clause(2) by way of repeal or amendment of any law in force in the territory ofIndia. The Adaptation Order issued by the President thus constitutionallyhas same effect as the repeal or amendment of any law in force in theterritory of India. Under sub-clause (3)(b) of Article 372 the competentELegislature has also power of repealing or amending any law adapted ormodified by the President under sub-clause (2) of Article 372.

67. The Adaptation Order issued by the President under sub-clause(2) of Article 372 thus has force of law and competent Legislature havingnot made any amendment in the Adaptation Order of 1950, even after77 years of the enforcement of the Constitution indicates that law asFadapted by Presidential Order, 1950 is continued in full force. The effectof Section 57(4) in no manner is diminished by the fact that amendmentswere made in Section 57(4) by the Presidential Adaptation Order.

68. One more provision of Evidence Act which needs to be notedis Section 74 which deals with the public documents. Section 74 of theGEvidence Act is as follows:

“74. Public documents.—The following documents are publicdocuments :—

(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,ofany part of India or of the Commonwealth, or of foreigncountry; of any part of India or of the Commonwealth, orof foreign country;

(2) Public records kept in any State of private documents.”

69. According to Section 74 documents forming the acts, or recordsof the acts of Legislature of any part of India is public document. Wehave noticed above that Parliament has already adopted report of privilegecommittee that for those documents which are public documentswithin the meaning of Indian Evidence Act, there is norequirement of any permission of Speaker of Lok Sabha forproducing such documents as evidence in Court. We may, however,hasten to add that mere fact that document is admissible in evidencewhether public or private document does not lead to draw anypresumption that the contents of the documents also are true and correct.

70. In this context, reference is made to judgment of the PrivyCouncil reported in Right Honourable Gerald Lord Strickland vs.Carmelo Mifsud Bonnici,AIR 1935 PC 34. In the above case reportsof the debates in the Legislative Assembly containing speeches of theappellant and the publication were produced. The Privy Council in theabove reference has expressed opinion that debates can only be evidenceof what was stated by the speakers in the Legislative Assembly, and arenot evidence of “any facts contained in the speeches”.

71. judgment of Bombay High Court dealing with Section 74 ofthe Evidence Act in reference to Article 105 of the Constitution of Indiaand the Rules of Procedure and Conduct of Business in Lok Sabha hasbeen cited, namely, Standard Chartered Bank vs. A.B.F.S.L & ORS.,2001 (4) BOM.LR 520. In the above case, report of JointParliamentary Committee was objected by the learned counsel for theStandard Chartered Bank. In paragraph 1 of the judgment, issue whichhas arisen in the case was noticed to the following effect:

“1.Two points arise for determination. Firstly, whether theReport of Joint Parliamentary Committee is public documentas defined under Section 74of the Indian Evidence Act, 1872.

ASecondly, even if it is public document, whether the findingsof the Joint Parliamentary Committee constitute evidence asdefined under Section 3of the Indian Evidence Act.”

72. It was contended before the Bombay High Court that JointParliamentary Committee report is public document as defined in SectionB74(1) of the Evidence Act. In paragraph 2 of the judgment argumentshave been noticed. The argument was opposed by the other side. TheBombay High Court came to the conclusion that report of JPC is apublic document under Section 74 of the Evidence Act and the reportwas admissible as evidence. Justice S. H. Kapadia (as he then was)held that the correctness of the findings in the JPC will ultimately dependCon the entire view of the matter. Following was observed in paragraph 5of the judgment:“5....The Report of JPC has recorded that there was anarrangement between the brokers and the Banks,including Standard Chartered Bank, under whichDthe Banks were assured of return of 15%. It was somethinglike minimum guaranteed return offered by the brokers tothe Banks. As stated above, the Report has given findings oncertain banking and market practices which led to thefinancial irregularities in security transactions. In that context,Ethe JPC examined various Officers of the Banks and thebrokers. After recording their evidence, as stated above, JPCcame to the conclusion that there were certain practicesfollowed by the Banks and the brokers like Routing facilities,margin trading and 15% arrangement. To this extent, thefindings of JPC can be read as evidence in the present matter.FHowever, the question as to whether the suit transaction wasa part of 15% arrangement, has not been found by JPC. Thereis no finding to the effect that the suit transaction was part ofsuch an arrangement. Therefore, I am of the view that CanBank Mutual Fund is entitled to tender the Report of JPC asGevidence only to establish that there was 15% arrangementbetween Standard Chartered Bank and HPD. The issue as towhether the suit transaction was part of such practice/arrangement will have to be established independently by CanBank Mutual Fund. However, in order to prove that issue, theReport will be one of the important pieces of evidence. At this

stage, I am concerned with admissibility. The correctness ofthe findings will ultimately depend on the entire view of thematter. The question as to what weight the Court should giveto the findings of JPC will ultimately depend on the totality ofcircumstances brought before the Court.”

73. In paragraph 6 ultimately the Court held :

“6.Accordingly, I hold that the Report of JPC is publicdocument under Section 74(1)(iii)of the Evidence Act.Secondly, that the said Report is admissible as evidence ofthe existence of 15% arrangement between StandardChartered Bank and HPD. That subject to above, Can BankMutual Fund will have to prove whether the suit transactiontook place under such an arrangement as any other Fact. Atthe request of Mr. Cooper, it is clarified that this ruling issubject to my earlier ruling dated 27th June, 2001 on theargument of Standard Chartered Bank on inadmissibility ofdocuments under Sections 91 and 92 of the Evidence Act andalso in view of the provisions of the Benami TransactionsAbolition Act.”

G. NATURE AND EXTENT OF PARLIAMENTARYPRIVILEGES REGARDING REPORTS OF COMMITTEES OFBRITISH PARLIAMENT

74. In the Constituent Assembly Debates on draft Article 85 (nowArticle 105 of the Constitution of India) and draft Article 169 (now Article194 of the Constitution of India), various members have broughtamendments and prayed that privileges of the House of the Parliamentbe enumerated and the Constitution should not refer to House ofCommons of the United Kingdom for referring to its privileges. Dr.B.R. Ambedkar in his reply in the Constituent Assembly Debates on03.06.1949 stated as follows:-

“It seems to me, if the proposition was accepted that the Actitself should enumerate the privileges of Parliament, we wouldhave to follow three courses. One is to adopt them in theConstitution, namely to set out in detail the privileges and immunitiesof Parliament and its members. I have very carefully gone overMay’s Parliamentary Practice which is the source book ofknowledge with regard to the immunities and privileges of

AParliament. I have gone over the index to May’s ParliamentaryPractice and I have noticed that practically 8 or 9 columns of theindex are devoted to the privileges and immunities of Parliament.So that if you were to enact complete code of the privileges andimmunities of Parliament based upon what May has to say on thissubject, I have not the least doubt in my mind that we will have toBadd not less than twenty or twenty-five pages relating toimmunities and privileges of Parliament. I do not know whetherthe Members of this House would like to have such largecategorical statement of privileges and immunities of Parliamentextending over twenty or twenty-five pages. That I think is oneCreason why we did not adopt that course.”

75. The draft article was finally approved maintaining the referenceto House of Commons in regard to other privileges. Thus, the privilegeswhich our Parliament and State Legislatures enjoy are privileges enjoyedby House of Commons of the United Kingdom at the time ofDcommencement of the Constitution.

76. In early period of history of British Parliament, at thecommencement of every Parliament, it has been the custom, the Speakersought by humble petition the rights and privileges. The petitions weregranted by Her Majesty’s by conferring upon the power, the privilegesEasked for. In subsequent period, the Common started insisting that theprivileges are inherent in the House. The first major recognition andacceptance of Parliamentary privileges found reflected in the Bill ofRights, 1688. The Bill of Rights, 1688 was an Act declaring the rightsand liberties of the subject and settling the succession of the Crown.Article IX of the Bill of Rights provides as follows:–F

“Freedom of Speech - That the freedom of speech and debatesor proceedings in Parliament ought not to be impeached orquestioned in any court or place out of Parliament:”

77. The above declaration made in Bill of Rights thereafter hasGbeen firmly established and till date enjoyed by the House of Commonsof the United Kingdom. Erskine May in ‘Parliamentary Practice, 24[th]Edition’ while dealing with privileges of freedom of speech says followingwith regard to the Bill of Rights:-

“Article IX of the Bill of Rights 1689 confers on ‘proceedings inParliament’ protection from being ‘impeached or questioned’ inH

any ‘court or place out of Parliament’. Except in the limitedcircumstances mentioned below, none of these critical terms isdefined, so that it has often fallen to the courts to arrive at judgmentsabout their meaning, against the background of parliamentaryinsistence on the privilege of exclusive cognizance of proceedings(see above) and concern that judicial interpretation should notnarrow the protection of freedom of speech which article IXaffords.”

78. There is no doubt that reports of the Standing Committee ofthe Parliament are also Parliamentary proceedings. Participation ofmembers of Parliament in normal course is usually by speech but theirparticipation in Parliamentary proceedings is not limited to speaking only.Participation of members of the Parliament is also by various otherrecognised forms such as voting, giving notice of motion, presenting apetition or submitting report of Committee, the modern forms ofexpression by which the wish and will of Parliamentarians is expressed.The report submitted by Standing Committee of Parliament is also anotherform of expression. Thus, the Parliamentary privileges which arecontained in Sub-clause (2) of Article 105 to individual Parliamentarymember are also extended by virtue of Sub-clause (3) of Article 105 tothe Parliamentary Committee Reports. The Parliamentary privilegescontained in Article IX of Bill of Rights thus also protect the ParliamentaryStanding Committee Reports. In this Context, references to few Englishcases are relevant. The case of Stockdale Vs. Hansard, 9 A.D. &E.2 Page 1112 is referred. The case was an action for publicationdefaming the plaintiff’s character by imputing that he had published anobscene libel. Following was stated by Lord Denmen, C.J.

“Thus the privilege of having their debates unquestioned, thoughdenied when the members began to speak their minds freely inthe time of Queen Elizabeth, and punished in its exercise both bythat princess and her two successors, was soon clearly perceivedto be indispensable and universally acknowledged. Byconsequence, whatever is done within the walls of either assemblymust pass without question in any other place. For speeches madein parliament by member to the prejudice of any other person,or hazardous to the public peace, that member enjoys completeimpunity.....”

A79. Another judgment which needs to be noted is Bradlaugh V.Gossett (1884) 12 Q.B.D. 271. The plaintiff Bradlaugh was dulyelected burgess to serve in the House of Commons. The House resolvedthat the Serjeant-at-arms shall exclude Mr. Bradlaugh from the Houseuntil he shall engage not further to disturb the proceedings of the House.Lord Coleridge, C.J. stated as follows:-B

“.....What is said or done within the walls of Parliament cannot beinquired into in court of law. On this point all the judges in thetwo great cases which exhaust the learning on the subject, —Burdett v. Abbott 14 East , 1, 148 and Stockdale v. Hansard 9 Ad& 1 ; — are agreed, and are emphatic. The jurisdiction of theCHouses over their own members, their right to impose disciplinewithin their walls, is absolute and exclusive. To use the words ofLord Ellenborough, “They would sink into utter contempt andinefficiency without it.”

80. Another case in which question of Parliamentary privilegeDwith respect to Parliamentary report of select committee of House ofCommons was involved was the case of Dingle Vs AssociatedNewspapers Ltd. & Ors. (1960) 2 Q.B. 405. The plaintiff sued fordamages for libels appearing in the issues of the Daily Mail Newspaper.The plaintiff alleged that the defendants falsely and maliciously printedEand published an article concerning the circumstances in which the sharesin Ardwick Cemetery Ltd. were acquired by the Manchester Corporation.A Committee of the House of Commons has also submitted report thatthe Corporation obtained the shares by presenting one-sided view,which failed to disclose the true position of the company on break-up.F81. Pearson, J. Referring to Bill of Rights, 1688 and the case ofBradlaugh V. Gossett said following:-

“....Reference was made to the Bill of Rights, 1688, s. 1, art.9, onfreedom of speech, which provides: “That the freedom of speechand debates or proceedings in Parliament ought not to be impeachedGor questioned in any court or place out of parliament.”

Reference was also made to Bardlaugh v. Gossett, and it issufficient to read short portion of the headnote: “The House ofCommons is not subject to the control of Her Majesty’s Courts inits administration of that part of the statute law which has relationto its internal procedure only. What is said or done within its walls

cannot be inquired into in court of law. resolution of theHouse of Commons cannot change the law of the land. But acourt of law has no right to inquire into the propriety of resolutionof the House restraining member from doing within the walls ofthe House itself something which by the general law of the landhe had right to do.” There is clear affirmation of the exclusiveright of Parliament to regulate its own internal proceedings.

That was one of the points put forward and, in my view, it is quiteclear that to impugn the validity of the report of select committeeof the House of Commons, especially one which has beenaccepted as such by the House of Commons by being printed inthe House of Commons Journal, would be contrary to section 1 ofthe Bill of Rights. No such attempts can properly be made outsideParliament.....”

82. Another judgment which also related to proceeding inParliament is Church of Scientology of California Vs. Johnson-Smith(1972) 1 Q.B. 522. Referring earlier judgment in Dingle Vs. AssociatedNewspapers, 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’sclaim in that case was in respect of an article which had appearedin newspaper which he said was defamatory of him. It washeld in that case that the court could not inquire into the validity ofa select committee of the House of Commons on which the articlecomplained of had apparently been partly based. The invaliditysuggested in that case seems to have been suggestion that therewas some sort of procedural defect in the proceedings of thecommittee, which of course is quite different set of facts fromthe present case. But it seems to me that it really involved thesame principle as is involved in this case. As I understand it theplaintiff there was trying to question proceedings in Parliament inorder to support in certain respects his case based on libelpublished outside Parliament and was held not entitled to do that.By analogy with this case it seems to me that the plaintiff’s hereare trying to use what happened in Parliament in order to supporta part of their case in respect of this libel published outsideParliament in the television broadcast.

AI am quite satisfied that in these proceedings it is not open toeither party to go directly, or indirectly, into any question of themotives or intentions of the defendant or Mr. Hordern or the thenMinister of Health or any other Member of Parliament in anythingthey said or did in the House.....”

B83. What was held in the above cases clearly establish that it isnow well settled that proceedings undertaken in the Parliament includinga report of the Standing Committee cannot be challenged before anyCourt. The word ‘challenge’ includes both ‘impeaching’ and ‘questioning’the Parliamentary Committee Reports.

C84. After having noticed the nature and extent of Article 9 of theBill of Rights (1688), we now proceed to consider the question, as towhether, use of parliamentary materials including Standing CommitteeReport in courts, violates the parliamentary privilege as enshrined in theArticle 9 of Bill of Rights (1688). The most important judgment to benoticed in the above regard is the judgment of House of Lords in PepperD(Inspector of Taxes) v. Hart and related appeals, 1993(1) All ER42. Seven Member Committee of House of Lords heard the caselooking to the importance of the issue raised. The opinion expressed bythe Lord Browne-Wilkinson was concurred by all except one. Thetwo questions which arose in the case, were noticed in following wordsEby Lord Browne Wilkinson:

“....However, in the circumstances which I will relate, theappeals have also raised two questions of much widerimportance. The first is whether in construing ambiguous orobscure statutory provisions your Lordships should relax theFhistoric rule that the courts must not look at the parliamentaryhistory of legislation or Hansard for the purpose ofconstruing such legislation. The second is whether, if referenceto such materials would otherwise be appropriate, it wouldcontravene SI, art 9 of the Bill of Rights (1688) orparliamentary privilege 795.”G

85. Lord Wilkinson also considered Article 9 of Bill of Rights (1688),in the context that whether such use of parliamentary materials willcontravene the parliamentary privilege. The argument of learned AttorneyGeneral that the use of parliamentary material by the courts shall amountto 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 provision of the highest constitutionalimportance and should not be narrowly construed. It ensuresthe ability of democratically elected members of Parliamentto discuss what they will (freedom of debate) and to say whatthey will (freedom of speech). But, even given generousapproach to this construction, I find it impossible to attachthe breadth of meaning to the word ‘question; which theAttorney General urges. It must be remembered that art 9prohibits questioning not only ‘in any court’ but also in any‘place out of Parliament’. If the Attorney General’s submissionis correct, any comment in the media or elsewhere on what issaid in Parliament would constitute ‘questioning’ since allmembers of Parliament must speak and act taking intoaccount what political commentators and others will say.Plainly art 9 cannot have effect so as to stifle the freedom ofall to comment on what is said in Parliament, even thoughsuch comment may influence members in what they say.

In my judgment, the plain meaning of art 9, viewed againstthe historical background in which it was enacted, was toensure that members of Parliament were not subjected to anypenalty, civil or criminal, for what they said and were able,contrary to the previous assertions of the Stuart monarchy, todiscuss what they, as opposed to the monarch, chose to havediscussed. Relaxation of the rule will not involve the courtsin criticising what is said in Parliament. The purpose oflooking at Hansard will not be to construe the words used bythe minister but to give effect to the words used so long asthey are clear. Far from questioning the independence ofParliament and its debates, the courts would be giving effectto what is said and done there.”

86. The House of Lords also observed that Hansard has frequentlybeen used in cases of judicial review and following was stated in thiscontext:

“Moreover, the Attorney General’s contentions are inconsistentwith the practice which has now continued over number of

Ayears in cases of judicial review. In such cases, Hansard hasfrequently been referred to with view to ascertaining whethera statutory power has been improperly exercised for an alienpurpose or in wholly unreasonable manner. In Brind vSecretary of State for the Home Dept [1991] 1 All ER 720,[1991] 1 AC 696 it was the Crown which invited the court toBlook at Hansard to show that the minister in that case hadacted correctly (see [1991] 1 AC 696 at 741). This Houseattached importance to what the minister had said (see [1991]1 All ER 720 at 724, 729-730, [1991] 1 AC 696 at 749, 755-756). The Attorney General accepted that references toCHansard for the purposes of judicial review litigation did notinfringe art 9. Yet reference for the purposes of judicial reviewand for the purposes of construction are indistinguishable.In both type of cases, the minister’s words are consideredand taken into account by the court; in both, the use of suchwords by the courts might affect what is said in Parliament.”D87. In the end Lord Wilkinson held that reference toparliamentary materials for purpose of construing legislation does notbreach Article 9 of the Bill of Rights (1688). Following was held:

“....For the reasons I have given, as matter of pure law thisEHouse should look at Hansard and give effect to theparliamentary intention it discloses in deciding the appeal.The problem is the indication given by the Attorney Generalthat, if this House does so, your Lordships may be infringingthe privileges of the House of Commons.

FFor the reasons I have given, in my judgment reference toparliamentary materials for the purpose of construinglegislation does not breach S 1, art 9 of the Bill of Rights....”

88. Again the House of Lords in Prebble v. Television NewZealand Ltd Privy Council, (1994) 3 All ER 407 observed that thereGcan no longer be any objection to the production of Hansard. Followingwas held by the Lord Wilkinson:

“Since there can no longer be any objection to the productionof Hansard, the Attorney General accepted (in their Lordships’view rightly) that there could be no objection to the use ofHansard to prove what was done and said in Parliament as aH

matter of history. Similarly, he accepted that the fact that astatute had been passed is admissible in court proceedings.Thus, in the present action, there cannot be any objection toit being proved what the plaintiff or the Prime Minister saidin the House (particulars 8.2.10 and 8.2.14) or that the State-owned Enterprises Act 1986 was passed (particulars 8.4.1).It will be for the trial judge to ensure that the proof of thesehistorical facts is not used to suggest that the words wereimproperly spoken or the statute passed to achieve animproper purpose.

It is clear that, on the pleadings as they presently stand, thedefendants intent to rely on these matters not purely as matterof history but as part of the alleged conspiracy or itsimplementation. Therefore, in their Lordships’ view, Smellie Jwas right to strike them out. But their Lordships wish to makeit clear that if the defendants wish at the trial to allege theoccurrence of events or the saying of certain words inParliament without any accompanying allegation ofimpropriety or any other questioning there is no objection tothat course.”

89. R. v. Murphy, (1986) 5 NSWLR 18 is another judgmentwhere Article 9 of Bill of Rights was considered in the context ofparliamentary proceedings. The tender of Hansard in curial proceedingsis not breach of parliamentary privilege. Hunt J., stated the following:

“None of the cases to which reference has been made hascaused me to alter the interpretation of the Bill of Rights, art9, which I have proposed. I remain of the view that what ismeant by the declaration that “freedom of speech... inparliament ought not to be impeached or questioned in anycourt or place out of parliament” is that no court proceedings(or proceedings of similar nature) having legal consequencesagainst member of parliament (or witness before aparliamentary committee) are permitted which by those legalconsequences have the effect of preventing that member (orcommittee witness) exercising his freedom of speech inparliament (or before committee) or of punishing him forhaving done so.”

A90. The next judgment which needs to be noted is judgment of theHouse of Lords in Wilson Vs. First Country Trust Ltd. (2003) UKHL40. The House of Lords in the above case has held that decision inPepper Vs. Hart (supra) removed from the law an irrational exception.Before the decision in Pepper Vs. Hart (supra) self-imposed judicialrule excluded use of parliamentary materials as an external aid. It wasBheld that the Court may properly use the ministerial and other statementsmade in Parliament without in any way questioning what has been saidin Parliament. Following was laid down in Para 60:-

“....What is important is to recognise there are occasions whencourts may properly have regard to ministerial and other statementsCmade in Parliament without in any way ‘questioning’ what hasbeen said in Parliament, without giving rise to difficulties inherentin treating such statements as indicative of the will of Parliament,and without in any other way encroaching upon parliamentaryprivilege by interfering in matters properly for consideration andDregulation by Parliament alone. The use by courts of ministerialand other promoters’ statements as part of the background oflegislation, pursuant to Pepper v Hart case, is one instance.Another instance is the established practice by which courts, whenadjudicating upon an application for judicial review of ministerialdecision, may have regard to ministerial statement made inEParliament. The decision of your Lordships’ House in Brind vSecretary 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 whereFArticle IX of Bill of Rights and Parliamentary privileges in context ofuse in Court of statement made by Prime Minister during Parliamentarydebate came for consideration. It was held that Article IX of Bill ofRights precludes the impeaching or questioning in Court or out ofParliament of the freedom of speech and debates or proceedings inGParliament. It was held that giving literal meaning will lead to absurdconsequences. In Para 10, following was stated by House of Lords:-

“Against this background, the Board turns to article 9 of the Billof Rights and the wider common law principle identified in Prebblecase. Article 9 precludes the impeaching or questioning in courtHor out of Parliament of the freedom of speech and debates or

proceedings in Parliament. The Board is concerned with theproposed use in court of statement made during parliamentarydebate. But it notes in passing that the general and somewhatobscure wording of article 9 cannot on any view be read absolutelyliterally. The prohibition on questioning “out of Parliament” wouldotherwise have “absurd consequences”, e.g. in preventing thepublic and media from discussing and criticising proceedings inparliament, as pointed out by the Joint Committee on ParliamentaryPrivilege, paragraph 91 (United Kingdom, Session 1998-1999, HLPaper 43-I, HC 214-I). On the other hand, article 9 does notnecessarily represent the full extent of the parliamentary privilegerecognised at common law. As Lord Browne-Wilkinson said inPrebble case at p. 332, there is in addition:

“a long line of authority which supports wider principle, ofwhich article 9 is merely one manifestation, viz. that the courtsand Parliament are both astute to recognise their respectiveconstitutional roles. So far as the courts are concerned theywill not allow any challenge to be made to what is said or donewithin the walls of Parliament in performance of its legislativefunctions and protection of its established privileges.”

92. The House of Lords also referred to report of the JointCommittee, 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 explainthe conduct occurring outside Parliament, and the policy andmotivation leading to it. This is unobjectionable although the aimand effect is to show that such conduct involved the improperexercise of power “for an alien purpose or in whollyunreasonable manner”: Pepper v. Hart, per Lord Browne-Wilkinson at p. 639A. The Joint Committee expressed the viewthat Parliament should welcome this development, on the basisthat “Both parliamentary scrutiny and judicial review have importantroles, separate and distinct in modern democratic society” (para50) and on the basis that “The contrary view would have bizarreconsequences”, hampering challenges to the “legality of executivedecisions . . . . by ring-fencing what ministers said in Parliament”,and “making ministerial decisions announced in Parliament lessreadily open to examination than other ministerial decisions”(para

A51). The Joint Committee observed, pertinently, that

“That would be an ironic consequence of article 9. Intended toprotect the integrity of the legislature from the executive andthe courts, article 9 would become source of protection ofthe executive from the courts.”

93. Office of Government of Commerce Vs. InformationCommissioner, (2010) QB 98, was case where Stanley Burnton, J.held that receiving evidence of the proceedings of Parliament are relevantfor historical facts or events and does not amount to “questioning”. InPara 49, following was stated:-

“49. However, it is also important to recognise the limitations ofthese principles. There is no reason why the Courts should notreceive evidence of the proceedings of Parliament when they aresimply relevant historical facts or events: no “questioning” arisesin such case: see [35] above. Similarly, it is of the essence of theDjudicial function that the Courts should determine issues of lawarising from legislation and delegated legislation. Thus, there canbe no suggestion of breach of Parliamentary privilege if theCourts decide that legislation is incompatible with the EuropeanConvention on Human Rights: by enacting the Human Rights Act1998, Parliament has expressly authorised the Court to determineEquestions of compatibility, even though Minister may have madea declaration under section 19 of his view that the measure inquestion is compatible. The Courts may consider whether delegatedlegislation is in accordance with statutory authority, or whether itis otherwise unlawful, irrespective of the views to that effectFexpressed by Ministers or others in Parliament: R (Javed) vSecretary of State for the Home Department [2001] EWCA Civ789, [2002] QB 129 at [33]:

Legislation is the function of Parliament, and an Act ofParliament is immune from scrutiny by the courts, unlessGchallenged on the ground of conflict with European law.Subordinate legislation derives its legality from the primarylegislation under which it is made. Primary legislation thatrequires subordinate legislation to be approved by each Houseof Parliament does not thereby transfer from the courts to thetwo Houses of Parliament, the role of determining the legalityHof the subordinate legislation.

94. Another judgment delivered by Stanley Burnton, J. inFederation of Tour Operators Vs. HM Treasury, (2007) EWHC 2062(Admin) was case where objection to receiving evidence report ofTreasury 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 ofthe Claimants’ reliance in these proceedings on evidence given toCommittees of the House and on report of the Treasury SelectCommittee. It was submitted on his behalf that their reliance onthese matters in these proceedings involved breach of Art.9 ofthe Bill of Rights and the wider principle of Parliamentaryprivilege.”

95. The issue as to the admissibility of the Parliamentary materialwas considered in detail while referring to judgment of House of Lordsin Touissant’s (supra). It was held that there is no basis for distinguishingbetween statement of minister in the House and statement made to aSelect Committee. Following was held in Para 117, 124 and 125 of thejudgment:-

“117. In my judgment, the first two of these propositions are toowidely stated. I see no basis for distinguishing between what aMinister says in the House of Commons (or the House of Lords),which may be considered by the Court in case such as Toussaint, and what he or she says to Select Committee. Whether whatis said by an official should be received in evidence must dependon the circumstances: what he says, his authority, and the reasonfor which it is sought to rely on it. In general, the opinion of aParliamentary Committee will be irrelevant to the issues beforethe Court (as in R (Bradley) v Secretary of State for Work andPensions [2007] EWHC 242 (Admin) and, as will be seen, thepresent case), and accordingly I do not think it sensible to seek toconsider the admissibility of such report in case in which itscontents are relevant.124. The efficacy or otherwise of APD as an environmentalmeasure is also, in my judgment, question which, if relevant, isto be determined on the basis of evidence and argument beforethe Court, and not on the basis of the opinion of anyone whose

evidence is not before the Court. There is, however, no reasonwhy the Claimants cannot take from what has been said to or bya Select Committee points that can be put before the Court. Forexample, what was said by the Financial Secretary to the Treasuryto the Select Committee on the Environment is not rocket science,but something that would be obvious to anyone who gave thematter some thought. The points he made can be madeindependently, without reference to his statement.

125. Thus, in the end, I do not think that the Parliamentary materialreferred to by the Claimants, which I have looked at de beneesse , as such advances their case.”

96. Learned counsel for the respondents has pleaded reliance ona judgment of R v. Secretary of State for Trade and others, ex parteAnderson Strathclyde plc, 1983(2) All ER 233, Dunn LJ whiledelivering his opinion has observed that while using report in Hansardthe Court would have to do more than take note of the fact that certainDstatement was made in the House on certain date. The Court had toconsider the statement or statements with view to determining whatwas the true meaning of them, and what were the proper inferences tobe drawn from them. This, according to Dunn LJ, would be contrary toArticle 9 of the Bill of Rights. Following was stated by the Court:

“In my judgment there is no distinction between using areport in Hansard for the purpose of supporting cause ofaction arising out of something which occurred outside theHouse, and using report for the purpose of supporting aground for relief in proceedings for judicial review in respectof something which occurred outside the House. In both casesthe court would have to do more than take note of the factthat certain statement was made in the House on certaindate. It would have to consider the statement or statementswith 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 ofRights. It would be doing what Blackstone said was not to bedone, namely to examine, discuss and adjudge on matterwhich was being considered in Parliament. Moreover, it wouldbe an invasion by the court of the right of every member of

Parliament to fee speech in the House with the possibleadverse effects referred to by Browne.”

97. It is relevant to note that the above opinion of Dunn LJ wasspecifically disapproved by House of Lords in Pepper (Inspector ofTaxes) V Hart (supra). House of Lords by referring to above opinionof Dunn LJ had held that the said case was wrongly decided. It is usefulto extract following observation of House of Lords:

“In R v Secretary of State for Trade, ex p AndersonStrathclyde plc [1982] 2 All ER 233 an applicant for judicialreview sought to adduce parliamentary materials to prove afact. The Crown did not object to the Divisional Court lookingat the materials but the court itself refused to do so on thegrounds that it would constitute breach of art 9 (at 237,239 per Dunn LJ). In view of the Attorney General’sconcession and the decision of this House in Brind’s case, inmy judgment Ex p Anderson Strathclyde plc was wronglydecided on this point.”

98. Another case learned counsel for the respondents relied on isOffice of Government Commerce v. Information Commissioner(supra). Although, it was held by Stanley Burnton J that there is noreason why the courts should not receive evidence of the proceedingsof Parliament when they are simply relevant historical facts or events;no ‘questioning’ arises in such case. However, in paragraph 58 of thejudgment 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 party to proceedings before court (or theInformation Tribunal) seeks to rely on an opinion expressedby select committee, the other party, if it wishes to contendfor different result, must either contend that the opinion ofthe committee was wrong (and give reasons why), there by atthe very least risking breach of parliamentary privilege, ifnot committing an actual breach, or, because of the risk ofthat breach, accept that opinion notwithstanding that it wouldnot otherwise wish to do so. This would be unfair to that party.It indicates that party to litigation should not seek to relyon the opinion of parliamentary committee, since it puts the

Aother party at an unfair disadvantage and, if the other partydoes dispute the correctness of the opinion of the committee,would put the tribunal in the position of committing breachof parliamentary privilege if it were to accept that theparliamentary committee’s opinion was wrong. As Lord WoolfMR said in Hamilton v Al Fayed [1999] I WLR 1569, 1586G,Bthe courts cannot and must not pass judgment on anyparliamentary proceedings.”

99. In the same judgment subsequently, it was held that whetherthere is any breach of parliamentary privilege in such reference willdepend on the purpose for which the reference is made. In paragraphC62 of the judgment following has been held:

“62. Generally, however, I do not think that inferences canbe drawn from references made by the court to the reports ofparliamentary select committees in cases where no objectionwas taken to its doing so. In addition, as I said in R(FederationDof Tour Operators)v HM Treasury [2008] STC 547, whetherthere is any breach of parliamentary privilege in such areference will depend on the purpose for which the referenceis made. For example, it seems to me that there can be noobjection to reference to the conclusions of report thatEleads to legislation, since in such case the purpose of thereference is either historical or made with view toascertaining the mischief at which the legislation was aimed;the reference is not made with view to questioning the viewsexpressed as to the law as at the date of the report.”

F100. We are of the view that the law as broadly expressed inparagraph 58 of the above case cannot be accepted. All references toParliamentary proceedings and materials do not amount to breach ofprivilege to invite contempt of Parliament. When party relies on anyfact stated in the report as the matter of noticing an event or history noexception can be taken on reliance on such report. However, no partyGcan be allowed to ‘question’ or ‘impeach’ report of ParliamentaryCommittee. The Parliamentary privilege that it shall not be impeachedor questioned outside the Parliament shall equally apply both to partywho files claim in the court and other who objects to it. Both partiescannot impeach or question the report. In so far as the question of unfair

disadvantage is concerned, both the parties are fee to establish theirclaim or objection by leading evidence in the court and by bringing materialsto prove their point. The court has the right to decide the ‘lis’ on thebasis of the material and evidence brought by the parties. Any observationin the report or inference of the Committee cannot be held to be bindingbetween the parties or prohibit either of the parties to lead evidence toprove their stand in court of law. Unfair disadvantage stands removed inthe above manner.101. The above decisions categorically hold that Parliamentarymaterials including report of Standing Committee of Parliament canvery well be accepted in evidence by Court. However, in view ofParliamentary privileges as enshrined in Article IX of Bill of Rights, theproceedings of Parliament can neither be questioned nor impeached inCourt of Law. The cases of Judicial Review have been recognised asanother category where the Courts examine Parliamentary proceedingsto limited extent.

102. This Court in number of cases has also referred to and reliedParliamentary proceedings including reports of the Standing Committeeof the Parliament. Learned counsel for the petitioners have givenreference to several cases in this regard namely, Catering Cleaners ofSouthern Railway Vs. Union of India & Anr., (1987) 1 SCC 700where the Court has taken into consideration report of StandingCommittee of Petitions. Another case relied on is Gujarat ElectricityBoard Vs. Hind Mazdoor Sabha & Ors., (1995) 5 SCC 27. In thecase of State of Maharashtra Vs. Milind & Ors., (2001) 1 SCC 4,the Court has referred and relied to Joint Parliamentary CommitteeReport. In the case of Federation of Railway Officers AssociationVs. Union of India, (2003) 4 SCC 289, the Court has referred to areport of the Standing Committee of parliament on Railways. In thecase of Ms. Aruna Roy & Ors. Vs. Union of India & Ors., (2002) 7SCC 368, report of Committee namely S.B. Chavan Committee, whichwas appointed by the Parliament was relied and referred. M.C. MehtaVs. Union of India, 2017 SCC Online 394 was again case wherereport of Standing Committee of Parliament on Petroleum and NaturalGas has been referred to and relied. Other judgments whereParliamentary Committee Reports have been relied are Kishan Lal GeraVs. State of Haryana & Ors., (2011) 10 SCC 529; Modern DentalCollege and Research Centre Vs. State of Madhya Pradesh & Ors.,

A(2016) 7 SCC 353; and Lal Babu Priyadashi Vs. Amritpal Singh,(2015) 16 SCC 795.

103. Learned counsel appearing for the respondents as well aslearned Attorney General has submitted that it is true that in the abovecases this Court has referred to and relied on Parliamentary CommitteeBReports but the issue of privilege was neither raised nor considered.

104. We have already noticed that rules of Parliament, procedurepermit the production of Parliamentary materials in Court of Law asevidence. The Parliamentary materials which are public documents canbe submitted before the Court without taking any permission fromCParliament. Thus, no exception can be taken in producing Reports ofParliament Committee before Court of Law. The Indian EvidenceAct, 1874, which regulates the admission of evidence in Court of Law,also refers to proceedings in Parliament as public document of whichCourt shall take Judicial notice. All these factors lead us to concludethat there is no violation of any Parliamentary privilege in acceptingDReports of Parliamentary Committee in Court.

105. Now we come to question that when Parliamentary Reportscannot be questioned or impeached in Court of Law for what use theymay be looked into by Court of Law. We have already noticed aboveample authorities which lays down that for events which take place inEParliament, the facts which was stated before the Parliament or aCommittee, are facts which can be looked into. Further whenParliamentary Reports can be looked into for few purposes as has beenconceded by learned Attorney General as well as the respondentsthemselves, we do not find any justification in reading any prohibition forFuse of Reports for other purposes which are legal and lawful, withoutbreach of any privilege.

H. EXCLUSIONARY RULES HOW FAR APPLICABLEIN THE INDIAN CONTEXT

106. We have already noticed English cases dealing withGexclusionary rules and subsequent cases whittling down the exclusionaryrules. We have noticed above that in large number of cases this Courthas referred to and relied on Parliamentary Standing Committee Reports.In most of the said cases, the objection relating to Parliamentary privilegewas neither raised nor gone into, but there are few cases of this Court

where the principles and cases pertaining to exclusionary rules weregone into and the court considered the Parliamentary materials thereafter.

107. In State of Mysore vs. R.V. Bidap, 1974 (3) SCC 337, theConstitution Bench of this Court speaking through Krishna Iyer, J.stated that ‘Anglo-American jurisprudence, unlike other systems, hasgenerally frowned upon the use of parliamentary debates and pressdiscussions as throwing light upon the meaning of statutory provisions’.Justie Krishna Iyer opined that there is strong case of whittlingdown 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 asartificial. The trend of academic opinion and the practice inthe European system suggest that interpretation of statutebeing an exercise in the ascertainment of meaning, everythingwhich is logically relevant should be admissible. Recently, aneminent Indian jurist has reviewed the legal position andexpressed his agreement with Julius Stone and JusticeFrankfurter. Of course, nobody suggests that such extrinsicmaterials should be decisive but they must be admissible.Authorship and interpretation must mutually illumine andinteract. There is authority for the proposition that resort maybe had to these sources with great caution and only whenincongruities and ambiguities are to be resolved? There is astrong case for whittling down the Rule of Exclusion followingin the British courts and for less apologetic reference tolegislative proceedings and like materials to read the meaningof the words of statute.”

108. Another Constitution Bench in R.S. Nayak vs. A.R. Antulay,1984 (2) SCC 183, considered the objection that debates in Parliamentor the reports of Committee cannot be relied as per the ‘exclusionaryrules’. In paragraph 32 of the judgment, Desai, J. speaking for theConstitution Bench noticed the detailed objections. In paragraph 33 thisCourt observed that the trend certainly seems to be in the reverse gearthat is use of report of Committee as external aids to construction. Inparagraph 33 following was stated:

“33. The trend certainly seems to be in the reverse gear inthat in order to ascertain the true meaning of ambiguous words

CDE

in statute, reference to the reports and recommendations ofthe commission or committee which preceded the enactmentof the statute are held legitimate external aids to construction.The modern approach has to considerable extent erodedthe exclusionary rule even in England.”

B109. After considering the certain other cases and the Bidap case(supra) this Court held that those exclusionary rules have been given adescent burial by this Court. It is useful to extract the following fromparagraph 34 of the judgment:

“34..Further even in the land of its birth, the exclusionaryrule has received serious jolt in Black-ClawsonInternational Ltd. v. Paperwork Waldhef Ascheffenburg AC(2)Lord Simon of Claisdale in his speech while examining thequestion of admissibility of Greer Report observed as under:

“At the very least, ascertainment of the statutory objectivecan immediately eliminate many of the possible meanings thatthe language of the Act might bear and if an ambiguity stillremains, consideration of the statutory objective is one of themeans of resolving it.

The statutory objective is primarily to be collected from theEprovisions of the statute itself. In these days, when the longtitle can be amended in both Houses, I can see no reason forhaving recourse to it only in case of an ambiguity-it is theplainest of all the guides to the general objectives of statute.But it will not always help as to particular provisions. As tothe statutory objective of these report. leading to the Act isFlikely to be the most potent aid and, in my judgment, it wouldbe more obscurantism not to avail oneself of it. here is, indeedclear 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 enactmentof statute may be considered as showing the mischief aimedat and the state of the law as it was understood to be by thelegislature when the statute was passed.’ In the footnote underthe 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 toconstruction. Therefore, it can be confidently said that theexclusionary rule is flickering in its dying embers in its nativeland of birth and has been given decent burial by thisCourt.....

Therefore, departing from the earlier English decisions weare of the opinion that reports of the committee which precededthe enactment of legislation, reports of Joint ParliamentaryCommittee, report of commission set up for collecting.information leading to the enactment are permissible externalaids to construction....................

The objection therefore of Mr. Singhvi to our looking into thehistory of the evolution of the section with all its clauses, theReports of Mudiman Committee and K Santhanam Committeeand such other external aids to construction must beoverruled.”

110. Thus, in the above two cases, this Court has accepted thatParliamentary materials can be looked into, that too after consideringthe exclusionary rules which prohibited use of Parliamentary materialsin courts. As observed above, learned senior counsel, Shri Harish Salveand Shri K.K. Venugopal, learned Attorney General have not disputedthat Parliamentary reports and materials can be used for the purposesof taking into consideration legislative history for interpretation of statuteas well as for considering the statement made by Minister. Whenthere is no breach of privilege in considering the Parliamentary materialsand 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 thepetitioner that courts are not debarred from accepting the Parliamentarymaterials and reports as evidence before it, provided the court does notproceed to permit the parties to question or impeach the reports.

111. Learned counsel for the respondents have also referred tojudgment 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 EnquiryCommittee Report, namely, Janakiraman Committee Report. In the abovecontext following observations were made in paragraph 57 of thejudgment:

A“57. It is accepted fact that the reports of the JanakiramanCommittee, the Joint Parliamentary Committee and the Inter-Disciplinary Group (IDG) are admissible only for the purposeof tracing the legal history of the Act alone. The contents ofthe report should not have been used by the learned Judge ofthe Special Court as evidence,”B

113. In paragraph 28(viii)), the arguments of appellants werenoticed to the effect that Judge, Special Court, committed seriousillegality insofar as he relied upon the Janakiraman Committee Report,which was wholly inadmissible in evidence. The learned Judge, SpecialCourt, had passed order on an application of custodian which was setCaside by this Court by remitting back the matter to Special Court withsome directions. The Special Court thereafter relying on the said Reportpassed order. In this context, observations were made in paragraph 57that the report can be admissible only for the purpose of tracing the legalhistory of the Act alone and the contents of the report should not haveDbeen used by the learned Judge as evidence. This Court also took viewthat various audit reports were relied which were not considered. Inparagraph 58 following was stated:

“58. It does not appear that the Special Judge had consideredthis aspect of the matter in great detail. The learned Judge,ESpecial Court, should consider the aforementioned two auditreports so as to arrive at positive finding with regard to theliabilities and assets possessed by them so as to enable topass appropriate orders.”

114. The Special Court was deciding the lis in which party hadFfiled the evidence. Ignoring the same reliance was placed on the reportwith regard to which observation was made in paragraph 57. The SpecialJudge ought to have considered the evidence which were produced bythe appellants and only reliance placed on the evidence of JanakiramanCommittee Report was rightly disapproved by this Court. The abovewas case where sole reliance was placed on the Report which wasGdisapproved. The observation made by the Court that the report shouldnot have been used by the learned Judge as evidence was made inabove context which cannot be treated to mean that the report cannotbe accepted by court as evidence.

115. Another judgment which has been relied by the respondentsis State Bank of India vs. National Housing Bank and others, 2013(16) SCC 538. In the above case, this Court made following observationin paragraph 50 of the judgment which has been relied:

“50. It is well settled by long line of judicial authority thatthe findings of even statutory Commission appointed underthe Commissions of Inquiry Act, 1952 are not enforceableproprio vigore as held in Ram Krishna Dalmia v. Justice S.R.Tendolkar and Ors. : AIR 1958 SC 538 and the statementsmade before such Commission are expressly made inadmissiblein any subsequent proceedings civil or criminal. The leadingjudicial pronouncements Maharaja Madhava Singh v.Secretary of State for India in Council (1903-04) 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. Unionof India,(1977) 4 SCC 608, Sham Kant v. State ofMaharashtra : (1992) Supp (2) SCC 521 on that questionwere succinctly analysed by this Court in : (2001) 6 SCC 181,Paras 29-34. Para 34 of the judgment inter alia reads:

34 ... In our view, the courts, civil or criminal, are not boundby the report or findings of the Commission of Inquiry asthey have to arrive at their own decision on the evidenceplaced before them in accordance with law.”

116. In the above case, the Court has relied on JanakiramanCommittee which was not statutory body, authorised to collect evidenceand was body set up by the Governor of Reserve Bank of India inexercise of its administrative functions which has been noted by thisCourt in paragraph 51. The observation made by this Court in paragraph50 has to be read in the context of observations made by this Court inparagraph 51 which is to the following effect:

51. Therefore, Courts are not bound by the conclusions andfindings rendered by such Commissions. The statements madebefore such Commission cannot be used as evidence beforeany civil or criminal court. It should logically follow that eventhe conclusions based on such statements can also not beused as evidence in any Court. Janakiraman Committee is

Anot even statutory body authorised to collect evidence inthe legal sense. It is body set up by the Governor of ReserveBank of India obviously in exercise of its administrativefunctions,

... the Governor, RBI set up Committee on 30 April, 1992 toBinvestigate into the possible irregularities in fundsmanagement by commercial banks and financial institutions,and in particular, in relation to their dealings in Governmentsecurities, public sector bonds and similar instruments. TheCommittee was required to investigate various aspects of thetransactions of SBI and other commercial banks as well asCfinancial institutions in this regard.”117. The above judgment cannot be read to mean thatParliamentary Committee reports cannot be adverted to. This Courthas referred to Commissions of Inquiry Act, 1952. The observationswere made in the light of law as contained in Section 6 of theDCommissions of Inquiry Act, 1952. The next case relied on by therespondents is judgment of this Court in Common Cause : RegisteredSociety vs. Union of India, 2017 (7) SCC 158.

118. In the above judgment, this Court has referred toParliamentary Standing Committee Report in paragraphs 14 and 16. InEparagraph 21 it was held that opinion of the Parliamentary StandingCommittee would not be sacrosanct. In paragraph 21 followingobservation was made:

“21....The view of the Parliamentary Standing Committee withregard to the expediency of the Search/Selection CommitteeFtaking decisions when vacancy/vacancies exists/exist is merelyan opinion which the executive, in the first instance, has toconsider and, thereafter, the legislature has to approve. Thesaid opinion of the Parliamentary Standing Committee wouldtherefore not be sacrosanct. The same, in any case, does notGhave any material bearing on the validity of the existingprovisions of the Act.”

119. The above judgments do not lend support to the submissionof the respondents that Parliamentary Standing Committee Report cannotbe taken as evidence in the Court or it cannot be looked into by theCourt for any purpose.H

I. SEPARATION OF POWERS AND MAINTAINING ADELICATE BALANCE BETWEEN THE LEGISLATURE,EXECUTIVE AND JUDICIARY

120. The essential characteristic of Federation is distributionof limited Executive, Legislative and Judicial authority and the supremacyof Constitution. Justice B. K. Mukherjea, Chief Justice, in Ram JawayaKapur Vs. State of Punjab, AIR 1955 SC 549 referred to essentialcharacteristics of Separation of Powers in the Indian Constitution. InPara 12, following has been held:-

“....The Indian Constitution has not indeed recognised the doctrineof separation of powers in its absolute rigidity but the functions ofthe different parts or branches of the Government have beensufficiently differentiated and consequently it can very well besaid that our Constitution does not contemplate assumption, byone organ or part of the State, of functions that essentially belongto another.....”

121. Separation of powers between Legislative, Executive andJudiciary has been regarded as basic feature of our Constitution inKesavananda Bharti Vs. State of Kerala, AIR 1973 SC 1461. TheConstitution does not envisage supremacy of any of the three organs ofthe State. But, functioning of all the three organs is controlled by theConstitution. Wherever, interaction and deliberations among the threeorgans have been envisaged, delicate balance and mutual respect arecontemplated. All the three organs have to strive to achieve theconstitutional goal set out for ‘We the People’. Mutual harmony andrespect have to be maintained by all the three organs to serve theConstitution under which we all live. These thoughts were expressed bythis Court time and again. Suffice it to refer, Constitution Bench of thisCourt 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 fromthe status, dignity and importance of the respective causesthat are assigned to their charge by the Constitution. Thesetwo august bodies as well as the Executive which is anotherimportant constituent of democratic State, must function not

240SUPREME COURT REPORTS

Ain antimony nor in spirit of hostility, but rationally,harmoniously and in spirit of understanding within theirrespective spheres, for such harmonious working of the threeconstituents of the democratic State alone will help thepeaceful development, growth and stabilization of thedemocratic way of life in this country.”B122. Learned Attorney General has submitted that relying on theDoctrine of ‘Separation of Powers’, this Court may desist from takinginto consideration the Parliamentary Committee’s Report. As observedabove, there is no parliamentary privilege that Parliamentary CommitteeReports or other parliamentary materials cannot be given in evidence inCany court of law. By accepting Parliamentary Report as an evidence,there is no breach of any parliamentary privilege. It is also not out ofplace to mention that there is vital difference between parliamentarysovereignty in England and Constitutional supremacy in this country. Itis well settled that any law made by Parliament, which violates theDfundamental rights guaranteed under Part III of the Constitution, can beset aside by this Court in exercise of Jurisdiction of judicial review whichhas been granted by the Constitution to this Court. Parliamentarysovereignty, as enjoyed by the United Kingdom is not parallel examplein reference to functioning of different organs in this country, as controlledby the Constitution of India. The parliamentary privilege, as guaranteedEunder Article 9 of Bill of Rights, (1688) that no proceeding of Parliamentcan be questioned and impeached thus has to be applied, subject to expressconstitutional provisions as contained in Constitution of India.

123. We thus conclude that although, there is no rigid separationof powers under the Constitution of India, but functions of all the threeFwings have been sufficiently differentiated and each has freedom tocarry out its functions unhindered by any other wing of the State.However, in functioning of all the three organs, delicate balance, mutualharmony and respect have to be maintained for true working of theConstitution.GJ. ARTICLE 121 & ARTICLE 122 OF THECONSTITUTION OF INDIA

124. Relying on Article 121 and Article 122 of the Constitution ofIndia, it has been contended by the learned Attorney General as well asother learned counsel appearing for the respondents that principleH

enshrined in the above-mentioned articles do suggests that Court has tokeep away from entertaining any challenge to any parliamentaryproceeding, including Parliamentary Committee Report.

125. Although, heading of Article 122 reads ‘Courts not to enquireinto proceedings of the Parliament’ but substantive provision ofConstitution, as contained in sub-clause (1) of Article 122 debars theCourt from questioning the validity of any parliamentary proceeding onthe ground of any alleged irregularity or procedure. The embargo on theCourt to question the proceeding is thus limited on the aforesaid groundalone. There is no total prohibition from examining the validity of theproceeding if the proceedings are clearly in breach of fundamental rightsor other constitutional provisions. Constitution Bench in Special ReferenceNo. 1 of 1964 (supra), while considering the scope of Article 194 of theConstitution laid down the following:

“Our Legislatures have undoubtedly plenary powers, butthese powers are controlled by the basic concepts of thewritten Constitution itself and can be exercised within thelegislative fields allotted to their jurisdiction by the three Listsunder the Seventh Schedule; but beyond the Lists, theLegislatures cannot travel. They can no doubt exercise theirplenary legislative authority and discharge their legislativefunctions by virtue of the powers conferred on them by therelevant provisions of the Constitution; but the basis of thepower is the Constitution itself. Besides, the legislativesupremacy of our Legislatures including the Parliament isnormally controlled by the provisions contained in Part III ofthe Constitution. If the Legislatures step beyond the legislativefields assigned to them, or acting within their respective fields,they trespass on the fundamental rights of the citizens in amanner not justified by the relevant articles dealing with thesaid fundamental rights, their legislative actions are liable tobe struck down by courts in India. Therefore, it is necessaryto remember that though our Legislatures have plenarypowers, they function within the limits prescribed by thematerial and relevant provisions of the constitution.”

126. As observed above, the Constitution of India empowers thisCourt in exercise of judicial review to annul the legislation of Parliamentif it breaches the fundamental rights, guaranteed under Part III of the

AConstitution. Thus, the privileges which are enjoyed by the IndianLegislature have to be considered in light of the provisions of the IndianConstitution. These are the clear exceptions to the parliamentaryprivileges, as applicable in House of Commons on the strength of ArticleIX of Bill of Rights, 1688. This Court in Special Reference No. 1 of1964 (Supra) noticing the different constitutional provisions referred toBvarious privileges which although were enjoyed by the House ofCommons, but are no longer available to the Indian Legislature.

127. The power of judicial review enjoyed by this Court in referenceto legislation and some parliamentary proceedings are recognisedexceptions, when this Court can enter into parliamentary domain. In allCother 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 theview that on the strength of Article 122, it cannot be contended thatParliamentary Standing Committee Reports can neither be admitted inDevidence in Court nor the said reports can be utilised for any purpose.K. COMMENTS ON REPORTS OF PARLIAMENTARYCOMMITTEE WHETHER BREACH OF PRIVILEGE

129. The freedom of speech and expression is one of the mostEcherished fundamental rights guaranteed and secured by the Constitutionof 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 ofall democratic organisations, for without free politicaldiscussion no public education, so essential for the properFfunctioning of the processes of popular government, ispossible.”

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 DemocracyGbecause public criticism is essential to the working of itsinstitutions.” No organ of the state, be it Judicature, Executive orLegislature is immune from public criticism; public criticism is aninstrument to keep surveillance and check on all institutions in ademocracy.H

131. In Wason v. Walter (supra) Cockburn CJ., stated:

“....it may be further answered that there is perhaps no subjectin which the public have deeper interest than in all thatrelates to the conduct of public servants of the State,- nosubject of parliamentary discussion which more requires tobe made known than an inquiry relating to it....”

132. It was further emphasised that deeper public interest is servedin making public, the conduct of public servant or any inquiry public,Cockburn CJ., further held that there is full liberty of public writersto comment on the conduct and motives of public men. The recognitionof making comment on the conduct was noticed as of recent origin. Itwas further clearly laid down that comments on Members of both theHouses of the Parliament can also be made by which comments, it is thepublic which is the gainer. Following weighty observations were madeby Cockburn CJ.:

“....The full liberty of public writers to comment on the conductand motives of public men has only in very recent times beenrecognized. Comments on government, on ministers andofficers of state, on members of both houses of parliament,on judges and other public functionaries, are now made everyday, which half century ago would have been the subjectof actions or ex officio informations, and would have broughtdown fine and imprisonment on publishers and authors. Yetwho can doubt that the public are gainers by the change,and that, though injustice may often be done, and thoughpublic men may often have to smart under the keen sense ofwrong inflicted by hostile criticism, the nation profits by publicopinion being thus freely brought to bear on the discharge ofpublic duties?....”

133. In reference to ‘parliamentary privilege’, House of Lordsafter due consideration of Article 9 of Bills of Right 1888 in Pepper v.Hart (House of Lords) 1993 AC 593, laid down : ‘Article 9 cannothave effect, so as to stifle the freedom of all to comment on what is saidin Parliament, even though such comment may influence members inwhat they say.’ What is said in Parliament is thus clearly subject to faircomments by all including Press.

A134. Constitution Bench of this Court in M.S.M. Sharma vs.Sri Krishna Sinha and others, AIR 1959 SC 395, had occasion toconsider parliamentary privileges in reference to publication of speechdelivered by Member of Bihar Legislative Assembly, commonly knownas Search Light Case. In his speech, Member of Bihar LegislativeAssembly made critical reference to an ex-Minister of Bihar. The Speaker,Bon point of order raised by another Member directed expunging ofcertain words stated with regard to ex-Minister. However,notwithstanding the Speaker’s direction of expunging the portion of thespeech, the Search Light, in its issue dated 31[st] May, 1957, published acomplete report of the speech of the Member including the portion whichCwas directed to be expunged, notice was given to the Editor of theSearch Light, Shri Sharma, to show cause as to why appropriate actionbe not recommended for breach of privilege of the Speaker and theAssembly in respect of the offending publication. Shri Sharma, Editorfiled writ petition under Article 32 contending that the said notice andthe proposed action is in violation of his fundamental right to freedom ofDspeech and expression under Article 19(1)(a). This Court held thatprinciple of harmonious construction must be adopted in consideringArticle 19(1)(a) and Article 194(1) and latter part of sub-clause (3) ofArticle 194. The Court further held that the publication of the speech bySearch Light in law has to be regarded as unfaithful report, primaEfacie, constituting breach of of privilege, following observations weremade in paragraph 32:

“32....The effect in law of the order of the Speaker to expungea portion of the speech of member may be as if that portionhad not been spoken. report of the whole speech in suchFcircumstances, though factually correct, may, in law, beregarded as perverted and unfaithful report and thepublication of such perverted and unfaithful report of aspeech, i.e., including the expunged portion in derogation tothe orders of the Speaker passed in the House may, primafacie, be regarded as constituting breach of the privilege ofGthe House arising out of the publication of the offending newsitem and that is precisely the charge that is contemplated bythe Committee’s resolution and which the petitioner is by thenotice called upon to answer. We prefer to express no opinionas to whether there has, in fact, been any breach of the

privilege of the House, for of that the House along is thejudge.”

135. The freedom of speech and expression as guaranteed underArticle 19(1)(a) is available to citizen to express his opinion andcomment which is also available with regard to court proceedings aswell. In respect of Parliamentary proceedings, the said right is not stifledunless the comment amounts to reflection or personal attack on individualMember of Parliament or to the House in general. In this context referenceis also made to judgment of House of Lords in Adam v. Ward, 1917AC 309, where proceedings of Parliament were published containing aslander remark on servant of the Crown. An enquiry was conductedwith regard to imputation and report was published for vindication of thehonour of the servant. Following was laid down by Lord Atkinson ofHouse of Lords:“I think it may be laid down as general proposition thatwhere man, through the medium of Hansard’s reports of theproceedings in Parliament, publishes to the world vile slandersof civil, naval, or military servant of the Crown in relationto the discharge by that servant of the duties of his office heselects the world as his audience, and that it is the duty of theheads of the service to which the servant belongs, if oninvestigation they find the imputation against him groundless,to publish his vindication to the same audience to which histraducer has addressed himself. In my view the Army Councilwould have failed in their duty to General Scobell personally,and to the great Service which they in certain sense governand control, if they had not given the widest circulation to theannouncement of the General’s vindication.”

136. In R v. Murphy, 1986 (5) NSWLR 18, Hunt, J. held thatwhat is said and done in Parliament can without any breach ofparliamentary privilege be impeached and questioned by the exercise byordinary citizens of their freedom of speech. Following was held:

“I have already pointed out that what is said and done inparliament can without any breach of parliamentary privilegebe impeached and questioned by the exercise by ordinarycitizens of their freedom of speech (whether or not in themedia), notwithstanding the fear which such conduct may

Aengender in members of Parliament (and committee witnesses)as to the consequences of what they say or do. In thosecircumstances, it can be neither necessary nor desirable inprinciple that what is said or done in parliament should notbe questioned (in the wider sense) in courts or similartribunals where no legal consequences are to be visited uponBsuch members (or witnesses) by the proceedings in question.”

137. The Privilege Committee of the Lok Sabha has alsorecognised the right of fair comment in following words:

“Nobody would deny the members or as matter ofCfact, any citizen, the right of fair comment. But if the commentscontain personal attack on individual members of Parliamenton account of their conduct in Parliament, or if the langauageof the comment is vulgar or abusive, they cannot be deemedto come within the bounds of fair comment or justifiablecriticism”.

(As quoted in “Press and Parliament” by A.N. Grover inJ.C.P.S.VXIII 1984 at p.141.)

138. Erskine May in ‘Parliamentary Practice’ (Twenty FourthEdition) defines contempt in the following words:E“Generally speaking, any act or omission which obstructs orimpedes either House of Parliament in the performance of itsfunctions, or which obstructs or impedes any Member orofficer of such House in the discharge of his duty, or whichhas tendency, directly or indirectly, to produce such results,may be treated as contempt even though there is no precedentFof the offence.”

139. Referring to case, Burdett v. Abbot, (1811) 104 ER 559,561, this Court in Special Reference No.1 of 1964, (1965) 1 SCR413, stated as follows:

G“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 fromthe status, dignity and importance of the respective causesthat are assigned to their charge by the Constitution. Thesetwo august bodies as well as the Executive which is anotherH

important constituent of democratic State, must function notin antinomy nor in spirit of hostility, but rationally,harmoniously and in spirit of understanding within theirrespective spheres, for such harmonious working of the threeconstituents of the democratic State alone will held thepeaceful development, growth and stablisation of thedemocratic way of life in this country.”

140. This Court in the Special Reference case also had observedthat the caution and principle which are kept in mind by the courts whilepunishing for contempt are equally true to the Legislatures also. Followingobservations were made by this Court:

“Before we part with this topic, we would like to refer to oneaspect of the question relating to the exercise of power topunish for contempt. So far as the courts are concerned,Judges always keep in mind the warning addressed to themby Lord Atkin in Andre Paul v. Attorney-General of Trinidad,AIR 1936 PC 141. Said Lord Atkin, “Justice is not cloisteredvirtue; she must be allowed to suffer the scrutiny andrespectful even though out-spoken comments of ordinarymen.” We ought never to forget that the power to punish forcontempt large as it is, must always be exercised cautiously,wisely and with circumspection. Frequent or indiscriminateuse of this power in anger or irritation would not help tosustain the dignity or status of the court, but may sometimesaffect it adversely. Wise Judges never forget that the best wayto sustain the dignity and status of their office is to deserverespect from the public at large by the quality of theirjudgments, the fearlessness, fairness and objectivity of theirapproach, and by the restraint, dignity and decorum whichthey observe in their judicial conduct. We venture to thinkthat what is true of the Judicature is equally true of thelegislatures.”

141. The power to punish for contempt is privilege available toParliament which is defined as ‘keynote of Parliamentary Privileges’.

142. From what has been stated above, we are of the view thatfair comments on report of the Parliamentary Committee are fullyprotected under the rights guaranteed under Article 19(1)(a). However,

Athe comments when turns into personal attack on the individual memberof Parliament or House or made in vulgar or abusive language tarnishingthe image of member or House, the said comments amount to contemptof the House and breach of privilege.

143. In the present case, learned counsel for the respondents haveBcontended that in the event, they raise objections regarding ParliamentaryCommittee Report which has adversely commented on their role theyshall be liable to be proceeded for committing contempt of the House,hence, this Court may neither permit the Parliamentary Committee Reportto be taken in evidence nor allow the petitioners to rely on the report. Noparty is precluded in making fair comments on the ParliamentaryCCommittee Report which comments remain within the bounds of faircomments and does not transgress the limits prescribed for fair comments.The Parliamentary Committee Reports when published, the press areentitled to make fair comments. We fail to see any reason prohibitingthe parties who were referred to in the Parliamentary Committee ReportDto make such fair comments or criticism of the Report as permissibleunder law without breach of privilege.

L.ADJUDICATION IN COURTS AND PARLIAMENTARYCOMMITTEE REPORT

144. ‘Adjudication’ is the power of Court to decide and pronounceEa judgment and carry it into effect between the persons and parties whobring cause before it for decision. Both for civil and criminal casespeople look forward to Courts for justice. To decide controversy betweenits subject had always been treated as part of sovereign functions.Constitutional law developments emphasised separation of powers ofFGovernmental functions for protecting rights and liberties of people.

145. Montesquieu in L’Esprit des Lois, 1748, the modernexponent of the doctrine of separation of powers states:

“When the legislative and executive powers are united in thesame person, or on the same body or Magistrates, there canGbe no liberty. Again, there is no liberty if the judicial power isnot separated from the legislative and executive powers. Wereit joined with the legislative power, the life and liberty of thesubject would be exposed to arbitrary control; for the Judgewould then be the legislator. Were it joined with the executivepower, the judge might behave with violence and oppression.H

There would be an end of everything were the same man orthe same body to exercise these three powers...”.

146. In our Constitution although there is no strict separation ofpowers of the three branches that is Legislature, Judicature and Executivebut Constitutional provisions entrust separate functions of each organwith clarity which makes it clear that our Constitution does notcontemplate assumption by one organ function which belongs to anotherorgan of the State. nine-Judge Constitution Bench in I.R. Coelho(Dead) by LRs. v. State of Tamil Nadu, 2007 (2) SCC 1, while dealingwith the separation of powers stated following in paragraphs 64, 65 and67:

“64. In fact, it was settled centuries ago that for preservationof liberty and prevention of tyranny it is absolutely essentialto vest separate powers in three different organs. In Federalist47, 48, and 51, James Madison details how separation ofpowers preserves liberty and prevents tyranny. In TheFederalist 47, Madison discusses Montesquieu’s treatment ofthe separation of powers in the Spirit of Laws (Book XI,Chapter 6). There Montesquieu writes,

“When the legislative and executive powers are united inthe same person, or in the same body of Magistrates, therecan be no liberty.... Again, there is no liberty, if the judicialpower be not separated from the legislative and executive.”

Madison points out that Montesquieu did not feel that differentbranches could not have overlapping functions, but ratherthat the power of one department of Government should notbe entirely in the hands of another department of Government.

65. Alexander Hamilton in The Federalist 78, remarks on theimportance of the independence of the judiciary to preservethe separation of powers and the rights of the people:

“The complete independence of the courts of justice ispeculiarly essential in limited Constitution. By limitedConstitution, I understand one which contains certainspecified exceptions to the legislative authority; such, forinstance, that it shall pass no bills of attainder, no ex postfacto laws, and the like. Limitations of this kind can be

Apreserved in practice in no other way than through the mediumof courts of justice, whose duty it must be to declare all actscontrary to the manifest tenor of the Constitution void. Withoutthis, all the reservations of particular rights or privilegeswould amount to nothing.” (434)

B67. The Supreme Court has long held that the separation ofpowers is part of the basic structure of the Constitution. Evenbefore the basic structure doctrine became part ofConstitutional law, the importance of the separation of powerson our system of governance was recognized by this Court inSpecial Reference No.1 of 1964, (1965) 1 SCR 413.”C147. Adjudication of rights of the people is function not entrustedto the Legislature of the country. Apart from legislation our Parliamenthas become multi-functional institution performing various roles, namely,inquisitorial, financial and administrative surveillance, grievance redressaland developmental. Parliament, however, is not vested with anyDadjudicatory jurisdiction which belongs to judicature under theConstitutional Scheme. This Court in State of Karnataka v. Union ofIndia, 1977 (4) SCC 608, while considering Articles 105 and 194 ofthe Constitution of India laid down following:“Our Constitution vests only legislative power in ParliamentEas well as in the State Legislatures. House of Parliament orState Legislature cannot try anyone or any case directly, as aCourt of Justice can, but it can proceed quasi-judicially incases of contempt of its authority and take up motionsconcerning its “privileges” and “immunities” because, inFdoing so, it only seeks removal of obstructions to the dueperformance of its legislative functions. But, it any questionof jurisdiction arises as to whether matter falls here or not,it has to be decided by the ordinary courts in appropriateproceedings. For example, the jurisdiction to try criminaloffence, such as murder, committed even within House vestsGin ordinary criminal courts and not in House of Parliamentor in State Legislature.”

148. The function of adjudicating rights of the parties has beenentrusted to the constituted courts as per Constitutional Scheme, which

adjudication has to be made after observing the procedural safeguardswhich include right to be heard and right to produce evidence.

149. In Dingle v. Associated Newspapers Ltd. and Others(supra) in case of damages for libel where defendants relied onParliamentary Committee Report published, Pearson, J., laid down asfollows:

“...in my view, this court should make its own findings basedon the evidence adduced and on the arguments presented inthis court, and that should be done without regard to anydecisions reached or opinions expressed or findings made bya different tribunal having different function, and, probably,different issues before it, and having received differentevidence and different presentation of the case.”

150. The apprehension of the respondents that their case shall beprejudiced if this Court accepts the Parliamentary Committee Report inevidence, in our opinion is misplaced. By acceptance of ParliamentaryCommittee Report in evidence doest not mean that facts stated in theReport stand proved. When issues, facts come before Court of lawfor adjudication, the Court is to decide the issues on the basis of evidenceand materials brought before it and in which adjudication ParliamentaryCommittee Report may only be one of the materials, what weight has tobe given to one or other evidence is the adjudicatory function of theCourt which may differ from case to case. The Parliamentary CommitteeReports cannot be treated as conclusive or binding of what has beenconcluded in the Report. When adjudication of any claim fastening anycivil or criminal liability on an individual is up in Court of law, it is openfor party to rely on all evidences and materials which is in its powerand Court has to decide the issues on consideration of entire materialbrought before it. When the Parliamentary Committee Report is notadjudication of any civil or criminal liability of the private respondents,their fear that acceptance of report shall prejudice their case is unfounded.We are, thus, of the opinion that by accepting Parliamentary CommitteeReport on the record in this case and considering the Report by thisCourt, the respondents’ right to dispel conclusions and findings in theReport are not taken away and they are free to prove their case inaccordance with law.

A151. OUR CONCLUSIONS

(i) According to sub-clause (2) of Article 105 of Constitution ofIndia no Member of Parliament can be held liable for anythingsaid by him in Parliament or in any committee. The reportssubmitted by Members of Parliament is also fully covered byBprotection extended under sub-clause (2) of Article 105 of theConstitution of India.

(ii)The publication of the reports not being only permitted, but alsoare being encouraged by the Parliament. The general publicare keenly interested in knowing about the parliamentaryCproceedings including parliamentary reports which are stepstowards the governance of the country. The right to know aboutthe reports only arises when they have been published for useof the public in general.

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

(iv)Parliament has already adopted report of “privilegecommittee”, that for those documents which are publicEdocuments within the meaning of Indian Evidence Act, thereis no requirement of any permission of Speaker of Lok Sabhafor producing such documents as evidence in Court.

(v)That mere fact that document is admissible in evidence whethera public or private document does not lead to draw anypresumption that the contents of the documents are also trueFand correct.

(vi)When party relies on any fact stated in the ParliamentaryCommittee Report as the matter of noticing an event or historyno exception can be taken on such reliance of the report.However, no party can be allowed to ‘question’ or ‘impeach’Greport of Parliamentary Committee. The Parliamentaryprivilege, that it shall not be impeached or questioned outsidethe Parliament shall equally apply both to party who filesclaim in the court and other who objects to it. Any observationin the report or inference of the Committee cannot be held to

be binding between the parties. The parties are at liberty tolead evidence independently to prove their stand in court oflaw.

(vii)Both the Parties have not disputed that Parliamentary Reportscan be used for the purposes of legislative history of Statuteas well as for considering the statement made by minister.When there is no breach of privilege in considering theParliamentary materials and reports of the Committee by theCourt for the above two purposes, we fail to see any validreason for not accepting the submission of the petitioner thatCourts are not debarred from accepting the Parliamentarymaterials and reports, on record, before it, provided the Courtdoes not proceed to permit the parties to question and impeachthe reports.

(viii)The Constitution does not envisage supremacy of any of thethree organs of the State. But, functioning of all the three organsis controlled by the Constitution. Wherever, interaction anddeliberations among the three organs have been envisaged, adelicate balance and mutual respect are contemplated. All thethree organs have to strive to achieve the constitutional goalset out for ‘We the People’. Mutual harmony and respect haveto be maintained by all the three organs to serve the Constitutionunder which we all live.

(ix)We are of the view that fair comments on report of theParliamentary Committee are fully protected under the rightsguaranteed under Article 19(1)(a). However, the commentswhen turns into personal attack on the individual member ofParliament or House or made in vulgar or abusive languagetarnishing the image of member or House, the said commentsamount to contempt of the House and breach of privilege.

(x)The function of adjudicating rights of the parties has beenentrusted to the constituted courts as per Constitutional Scheme,which adjudication has to be made after observing the proceduralsafeguards which include right to be heard and right to produceevidence. Parliament, however, is not vested with anyadjudicatory jurisdiction which belong to judicature under theConstitutional scheme.

254SUPREME COURT REPORTS

A(xi)Admissibility of Parliamentary Committee Report in evidencedoes not mean that facts stated in the Report stand proved.When issues of facts come before Court of law foradjudication, the Court is to decide the issues on the basis ofevidence and materials brought before it.

B152. The questions having been answered as above, let these writpetitions be listed before the appropriate Bench for hearing.

Nidhi Jain

Referred issue answered.