KALPANA MEHTA AND OTHERS v. UNION OF INDIA AND OTHERS

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Constitution is also required to accentuate the purpose and convey the message of the Constitution which is intrinsic to the Constitution. I.1 Interpretation of fundamental rights

41. While adverting to the concept of the duty of the Court, we shall focus on the interpretative process adopted by this Court in respect of fundamental rights. In the initial years, after the Constitution came into force, the Court viewed each fundamental right as separate and distinct. That apart, the rule of restrictive interpretation was applied. The contours were narrow and limited. It is noticeable from the decision in A.K. Gopalan v. State of Madras38. The perception changed when the Court focussed on the actual impairment caused by the law rather than the literal validity of the law as has been observed in I.R. Coelho (supra). I.R. Coelho referred to Rustom Cavasjee Cooper v. Union of India39and understood that the view rendered therein disapproved the view point in A.K. Gopalanand reflected upon the concept of impact doctrine in Sakal Papers (P) Ltd. v. Union of India40. The Court, after referring to Sambhu Nath Sarkar v. State of West Bengal and D others41, Haradhan Saha v. The State of West Bengal and others42 and Khudiram Das v. State of West Bengal and others43,reproduced a passage from Maneka Gandhi v. Union of India and another44 which reads thus:- “The law, must, therefore, now be taken to be well settled that E Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of ‘personal liberty’ and there is consequently no infringement of the fundamental right conferred by Article 21, such law, insofar as it abridges or takes away any fundamental right under Article 19 F would have to meet the challenge of that article.”

42. The Court reproduced a passage from the opinion expressed by Krishna Iyer, J. which stated that the proposition is indubitable that Article 21 does not, in a given situation, exclude Article 19 if both the rights are breached. G 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 H

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A 43. In I.R. Coelho (supra), the Court clearly spelt out that post- Maneka Gandhi, it is clear that the development of fundamental rights had been such that it no longer involves the interpretation of rights as isolated protections which directly arise but they collectively form a comprehensive test against the arbitrary exercise of powers in any area that occurs as an inevitable consequence. The Court observed that the protection of fundamental rights has been considerably widened. In that context, reference had been made to M. Nagaraj and others v. Union of India and others45 wherein it has been held that a fundamental right becomes fundamental because it has foundational value. That apart, one has also to see the structure of the article in which the fundamental value is incorporated. Fundamental right is a limitation on the power of the State. A Constitution and, in particular, that of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled is to be given a generous and purposive construction. The Court must interpret the Constitution in a manner which would enable the citizens to enjoy the rights guaranteed by it in the fullest measure. I.2 Interpretation of other constitutional provisions

44. In this regard, we may note how the Constitution Benches have applied the principles of interpretation in relation to other constitutional provisions which are fundamental to constitutional governance and democracy. In B.R. Kapur v. State of T.N. and another46, while deciding a writ of quo warranto, the majority ruled that if a non-legislator could be sworn in as the Chief Minister under Article 164 of the Constitution, then he must satisfy the qualification of membership of a legislator as postulated under Article 173. I.R. Coelho F (supra), while deciding the doctrine of implied limitation and referring to various opinions stated in Kesavananda Bharati (supra) and Minerva Mills Ltd. and others v. Union of India and others47, ruled that the principle of implied limitation is attracted to the sphere of constitutional interpretation.

45. In Manoj Narula v. Union of India48, the Court, while G interpreting Article 75(1) of the Constitution, opined that reading of implied limitation 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 1 H

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a disqualification which is neither expressly stated nor impliedly discernible from the provision. Eventually, the majority expressed that when there is no disqualification for a person against whom charges have been framed in respect of heinous or serious offences or offences relating to corruption to contest the election, it is difficult to read the prohibition into Article 75(1) by interpretative process or, for that matter, into Article 164(1) to the powers of the Prime Minister or the Chief Minister in such a manner. That would come within the criterion of eligibility and would amount to prescribing an eligibility qualification and adding a disqualification which has not been stipulated in the Constitution. In the absence of any constitutional prohibition or statutory embargo, such disqualification cannot be read into Article 75(1) or Article 164(1) of the Constitution. C

46. Another aspect that was highlighted in Manoj Narula (supra) pertained to constitutional implication and it was observed that the said principle of implication is fundamentally founded on rational inference of an idea from the words used in the text. The concept of legitimate deduction is always recognised. In Melbourne Corporation v. D Commonwealth49 , Dixon, J. opined that constitutional implication should be based on considerations which are compelling. Mason, C.J., in Australian Capital Television Pty. Limited and others and the State of New South Wales v. The Commonwealth of Australia and another50 [Political Advertisingcase], has ruled that there can be structural implications which are “logically or practically necessary for the E preservation of the integrity of that structure”. Any proposition that is arrived at taking this route of interpretation must find some resting pillar or strength on the basis of certain words in the text or the scheme of the text. In the absence of the same, it may not be permissible for a Court to deduce any proposition as that would defeat the legitimacy of reasoning. F A proposition can be established by reading a number of articles cohesively, for that will be in the domain of substantive legitimacy. Elaborating further, the Court proceeded to state that the said process has its own limitation for the Court cannot rewrite a constitutional provision. To justify the adoption of the said method of interpretation, there has to be a constitutional foundation. G

47. In Kuldip Nayar and others v. Union of India and others51, 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 H

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A India, relied upon a passage from G. Narayanaswami v. G. Pannerselvam and others52. The said authority clearly lays down that Courts should interpret in a broad and generous spirit the document which contains the fundamental law of the land. The Court observed that it may be desirable to give a broad and generous construction to the constitutional provisions, but while doing so, the rule of “plain meaning” B or “literal” interpretation, which remains “the primary rule”, has also to be kept in mind. In the context of Article 80(4) of the Constitution in the context of “the representatives of each State”, the Court repelled the argument that it is inherent in the expression “representative” that he/ she must first necessarily be an elector in the State. It ruled that the C “representative” of the State is the person chosen by the electors who can be any person who, in the opinion of the electors, is fit to represent them.

48. The Court, in Union of India v. Sankalchand Himatlal Sheth and another53, ruled that it is to be remembered that when the Court D interprets a constitutional provision, it breathes life into the inert words used in the founding document. The problem before the Constitutional Court is not a mere verbal problem. “Literalness”, observed Frankfurter, J., “may strangle meaning” and he went on to add in Massachusetts Bonding & Insurance Co. v. United States54 that “there is no surer way to misread a document than to read it literally.” The Court cannot E interpret a provision of the Constitution by making “a fortress out of the dictionary”. The significance of a constitutional problem is vital, not formal: it has to be gathered not simply by taking the words and a dictionary, but by considering the purpose and intendment of the framers as gathered from the context and the setting in which the words occur. F The difficulty of gathering the true intent of the law giver from the words used in the statute was expressed by Holmes, J. in a striking and epigrammatic fashion when he said: “Ideas are not often hard but the words are the devil55” and this difficulty is all the greater when the words to be construed occur in a constitutional provision, for, as pointed out by Cardozo, J., “the process of constitutional interpretation is in the G ultimate 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 H

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

50. We have discussed the concepts of supremacy of the Constitution and constitutional limitation, separation of powers, the ambit and scope of judicial review, judicial restraint, the progressive method adopted by the Court while interpreting fundamental rights and the expansive conception of such inherent rights. We have also deliberated upon the interpretation of other constitutional provisions that really do not touch the area of fundamental rights but are fundamental for constitutional governance and the duty of the Court is not to transgress the constitutional boundaries. We may immediately add that in the case at hand, we are not concerned with the interpretation of such constitutional provisions which have impact on the fundamental rights of the citizens. We are concerned with the interpretation of certain provisions that relate to parliamentary privilege and what is protected by the Constitution in certain articles. This situation has emerged in the context of the Court’s D role to rely upon the reports of Parliamentary Standing Committees in the context of the constitutional provisions contained in Articles 105 and 122. J. A perspective on the role of Parliamentary Committees

51. It is necessary to understand the role of the parliamentary standing Committees or ad hoc committees. They are constituted with certain purposes. The formation of committee has history. “Committees have been described as a primary organizational device whereby legislatures can accommodate an increase in the number of bills being introduced, while continuing to scrutinize legislation; handle the greater complexity and technical nature of bills under review without an exponential growth in size; develop “division of labours” among members for considering legislation....”56.

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

53. Former U.S. Representative James Shannon commented during a 1995 conference on the role of committees in Malawi’s legislature:- B “Around the world there is a trend to move toward more reliance on committees to conduct the work of parliament, and the greatest reason for this trend is a concern for efficiency. The demands on a modern parliament are numerous and it is not possible for the whole house to consider all the details necessary for performing C the proper function of a legislature.58”

54. Lord Campion in his book59 has explained the dual sense in which the word “Committee” was used in old parliamentary language:- “In early days it is not the body as a whole but each single member that is meant by the term, ‘the body is described as the committee’ D to whom the bill is committed. The formation of the terms is the same as that of any other English word which denotes the recipient in a bilateral relation of obligation, such as trustee, lessee, nominee, appointee. The body is usually referred to in the old authorities as ‘committee’. But it was not long before it became usual to describe E the totality of those to whom a bill was referred as a ‘committee’ in an abstract sense. In both the English word emphasis the idea of delegation and not that of representation in which the German word aussehuss expresses.”

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

56. The importance of Committees in today’s democracy has further been detailed thus61:- “Committees may not be of much service in the more spectacular aspect of these democratic institutions, and they might not be of much use in shaping fundamental policy, or laying down basic principles of government. But they are absolutely indispensable for the detailed work of supervision and control of the administration. Not infrequently, do they carry out great pieces of constructive legislation of public economy. Investigation of a C complicated social problem, prior to legislation, maybe and is frequently carried out by such legislative committees, the value of whose service cannot be exaggerated. They are useful for obtaining expert advice when the problem is a technical one involving several branches within an organization, or when experts are required to advise upon a highly technical problem definable within narrow limits. The provision of advice based on an inquiry involving the examination of witnesses is also a task suitable for a committee. The employment of small committees, chosen from the members of the House, for dealing with some of the items of the business of the House is not only convenience but is also in accordance with the established convention of Parliament. This procedure is particularly helpful in dealing with matters which, because of their special or technical nature, are better considered in detail by a committee of House. Besides expediting legislative business, committees serve other useful services. Service on these committees keeps the members adequately supplied with information, deepens their insight into affairs and steady their judgment, providing invaluable training to aspirants to office, and the general level of knowledge and ability in the legislature rises. Committees properly attuned to the spirit and forms parliamentary government can serve the country well as the eyes and ears and to some extent the brain of the legislature, the more so since the functions and fields of interest of the government increase day by day.”

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

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A 57. Also, in the said book, the following observations have been made with respect to the functions of Committees:- “As the committee system developed in the course of time the various functions of these bodies were differentiated into a few fixed types and a standard of size appropriate to each of these functions was also arrived at. These committees are appointed for a variety of purposes. One of the major purposes for which committees are appointed is the public investigation of problems out of the report upon which legislation can be built up. Secondly, committees are appointed to legislate. Bills referred to such committees are thoroughly discussed and drafted before they become laws. Example of such committees are the select committees in the Indian Legislature. Thirdly, committees are appointed to scrutinize and control. These committees are entrusted with the task of seeing whether or how a process is being performed, and by their conduct of this task they serve to provide the means of some sort of control over the carrying out of the process.”

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

G 59. Often committees have a multi-party composition. They examine specific matters of policy or government administration or performance. Effective committees have developed a degree of expertise in a given policy area, often through continuing involvement and stable memberships. This expertise is both recognized and valued by their H colleagues. They are able to represent diversity as also reconcile enough

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differences to sustain recommendations for action. Also, they are A important enough so that people inside and outside the legislature seek to influence outcomes by providing information about what they want and what they will accept. Furthermore, they provide a means for a legislative body to consider a wide range of topics in-depth and to identify politically and technically feasible alternatives. B K. International position of Parliamentary Committees

60. Before we proceed to dwell upon the said aspect in the Indian context, we think it apt to have a holistic view of the role of Parliamentary Standing Committees in a parliamentary democracy.

61. History divulges that Parliamentary Standing Committees have C been very vital institutions in most of the eminent democracies such as USA, United Kingdom, Canada, Australia, etc. Over the years, the committee system has come to occupy importance in the field of governance. K.1 Parliamentary Committees in England D

62. British parliamentary history validates that parliamentary committees have existed in some form or the other since the 14th century. Perhaps the committee system originated with the ‘triers and examiners of petitions’ – they were individual members selected for drawing up legislations to carry into effect citizens’ prayers that were expressed through petitions. By the middle of the 16th century, a stable committee system came into existence. These Parliamentary committees are sub-legislative organizations each consisting of small number of Members of Parliament from the House of Commons, or peers from the House of Lords, or a mix of both appointed to deal with particular areas or issues; most are made up of members of the Commons.62 The majority of parliamentary committees are Select Committees which are designed to:-

1Copy pinpoint1. Superintend the work of departments and agencies;

2Copy pinpoint2. Examine topical issues affecting the country or individual regions; and

3Copy pinpoint3. Review and advise on the procedures, workings and rules of the House. 62 See http://www.parliament.uk/business/committees/ H

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A 63. The other committees such as “Departmental Select Committees” are designed to oversee and examine the work of individual government departments, “Topical Select Committee” examines contemporary issues of significance and “Internal Select Committees” have responsibility with respect to the day-to-day running of Parliament.63 It helps the Parliament to have a very powerful network of committees B to ensure executive accountability. K.2 Parliamentary Committees in United States of America

64. Parliamentary Committees are essential to the effective operation of the Parliament in United States. Due to the high volume and complexity of its work, the Senate divides its tasks among 20 C permanent committees, 4 joint committees and occasionally temporary committees. Although the Senate committee system is similar to that of the House of Representatives, it has its own guidelines within which each committee adopts its own rules. This creates considerable variation among the panels. The chair of each committee and a majority of its D members represent the majority party. The chair primarily controls a committee’s business. Each party assigns its own members to committees, and each committee distributes its members among its sub- committees.64 The Senate places limits on the number and types of panels any one senator may serve on and chair. Committees receive varying levels of operating funds and employ varying numbers of aides. E Each hires its own staff. The majority party controls most committee staff and resources, but a portion is shared with the minority.

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(iv) Several thousand bills and resolutions are referred to committees during each 2-year Congress. Committees select a small percentage for consideration, and those not addressed often receive no further action. The bills that committees report help to set the Senate’s agenda.

66. When a committee or sub-committee favours a measure, it usually takes four actions: first it asks relevant executive agencies for written comments on the measure; second, it holds hearings to gather information and views from non-committee experts and at committee hearings, these witnesses summarize submitted statements and then respond to questions from the senators; third, a committee meets to perfect the measure through amendments, and non-committee members sometimes attempt to influence the language; and fourth, when the language is agreed upon, the committee sends the measure back to the full Senate, usually along with a written report describing its purposes and provisions. A committee’s influence extends to its enactment of bills into law. A committee that considers a measure will manage the full D Senate’s deliberation on it. Also, its members will be appointed to any conference committee created to reconcile its version of a bill with the version passed by the House of Representatives. K.3 Parliamentary Committees in Canada

67. The Parliament in Canada also functions through various E standing committees established by Standing Orders of the House of Commons or the Senate. It studies matters referred to it by special order or, within its area of responsibility in the Standing Orders, may undertake studies on its own initiative. There are presently 23 standing committees (including two standing joint committees) in the House and 20 in the F Canadian Senate.66 They, in general, examine the administration, policy developments and budgetary estimates of government departments and agencies. Certain standing committees are also given mandates to nominees. Committee hearings that focus on the implementation and investigation of programs are known as oversight hearings, whereas committee investigations examine allegations of wrongdoing. G 66 Special committees (sometimes called select committees), e. g., the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada, are sometimes established by the House to study specific issues or to investigate public opinion on policy decisions. They are sometimes called task forces but should not be confused with government TASK FORCES. See http:// www.thecanadianencyclopedia.ca/en/article/committees/ H

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A examine matters that have implications such as official languagespolicy and multiculturalism policy. K.4 Parliamentary Committees in Australia

68. The primary object of parliamentary committees in Australia is to perform functions which the Houses themselves are not well fitted to perform, i.e., finding out the facts of a case, examining witnesses, sifting evidence, and drawing up reasoned conclusions. Because of their composition and method of procedure, which is structured but generally informal compared with the Houses, committees are well suited to the gathering of evidence from expert groups or individuals.67 In a sense, they ‘take Parliament to the people’ and allow organisations and individuals to participate in policy making and to have their views placed on the public record and considered as part of the decision-making process. Not only do committee inquiries enable Members to be better informed about community views but in simply undertaking an inquiry, the committee may promote public debate on the subject at issue. The all-party composition of most committees and their propensity to operate across party lines are important features.68 This bipartisan approach generally manifests itself throughout the conduct of inquiries and the drawing up of conclusions. Committees oversee and scrutinise the Executive and contribute towards a better-informed administration and government policy-making process. 69 In respect of their formal proceedings, committees are microcosms and extensions of the Houses themselves, limited in their power of inquiry by the extent of the authority delegated to them and governed for the most part in their proceedings by procedures and practices which reflect those which prevail in the House by which they were appointed. F L. Parliamentary Committees in India

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give them a stake in the overall transformation of the country. It was A with this larger national objective that a democratic polity based on parliamentary system was conceived and formally declared in 1936 as “the establishment of a democratic state,” a sovereign state which would promote and foster “full democracy” and usher in a new social and economic order. B

70. The founding fathers of the Constitution perceived that such a system would respond effectively to the problems arising from our diversity as also to the myriad socio-economic factors that the nation was faced with. With that objective, in the political system that we established, prominence was given to the Parliament, the organ that directly represents the people and as such accountable to C them.

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

“The origin of the committee system in India can be traced back to the Constitutional Reforms of 1919. The Standing Orders of the Central Legislative Assembly provided for a Committee on Petitions relating to Bills, Select Committee on Amendments of Standing Orders, and Select Committee on Bills. There was also E a provision for a Public Accounts Committee and a Joint Committee on a Bill. Apart from Committees of the Legislative Assembly, Members of both Houses of the Central Legislature also served on the Standing Advisory Committees attached to various Departments of the Government of India. All these committees were purely advisory in character and functioned under the control of the Government with the Minister in charge of the Department acting as the Chairman of the Committee. After the Constitution came into force, the position of the Central Legislative Assembly changed altogether and the committee system underwent transformation. Not only did the number of committees increase, but their functions and powers were also enlarged. By their nature, Parliamentary Committees are of two kinds: Standing Committees and Ad hoc Committees. Standing H

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A Committees are permanent and regular committees which are constituted from time to time in pursuance of the provisions of an Act of Parliament or Rules of Procedure and Conduct of Business in Lok Sabha. The work of these Committees is of continuous nature. The Financial Committees, Departmentally Related Standing Committees (DRSCs) and some other Committees come B under the category of Standing Committees. Ad hoc Committees are appointed for a specific purpose and they cease to exist when they finish the task assigned to them and submit a report. The principal Ad hoc Committees are the Select and Joint Committees on Bills. Railway Convention Committee, Joint Committee on Food C Management in Parliament House Complex, etc. also come under the category of Ad hoc Committees.”

72. In the said document, it has been observed thus in respect of the Standing Committees of Parliament:- “Standing Committees are those which are periodically elected D by the House or nominated by the Speaker, Lok Sabha, or the Chairman, Rajya Sabha, singly or jointly and are permanent in nature. In terms of their functions, Standing Committees may be classified into two categories. One category of Committees like the Departmentally Related Standing Committees (DRSCs), E Financial Committees, etc., scrutinise the functioning of the Government as per their respective mandate. The other category of Committees like the Rules Committee, House Committee, Joint Committee on Salaries and Allowances, etc. deal with matters relating to the Houses and members.”

F 73. The functions of the Parliament in modern times are not only diverse and complex in nature but also considerable in volume and the time at its disposal is limited. It cannot, therefore, give close consideration to all the legislative and other matters that come up before it. A good deal of its business is, therefore, transacted in the Committees of the House known as Parliamentary Committees. Parliamentary Committee G means a Committee which is appointed or elected by the House or nominated by the Speaker and which works under the direction of the Speaker and presents its report to the House or to the Speaker.

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

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75. A close look at the functioning of these committees discloses the fact that the committee system is designed to enlighten Members E of Parliament (MPs) on the whole range of governmental action including defence, external affairs, industry and commerce, agriculture, health and finance. They offer opportunities to the members of the Parliament to realize and comprehend the dynamics of democracy. The members of Parliament receive information about parliamentary workings as well as perspective on India’s strengths and weaknesses through the detailed studies undertaken by standing committees. Indian parliamentary committees are a huge basin of information which are made available to the Members of Parliament in order to educate themselves and contribute ideas to strengthen the parliamentary system and improve governance. The committee system is designed to enhance the capabilities of Members of Parliament to shoulder greater responsibilities and broaden their horizons. 70 The principal Ad hoc Committees are the Select and Joint Committees on Bills. Railway Convention Committee, Joint Committee on Food Management in Parliament House Complex etc also come under the category of ad hoc Committees. H

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A 76. As has been stated in the referral judgment with regard to the Parliamentary Committee, we may usefully refer to the Rules of Procedure and Conduct of Business in Lok Sabha (for short ‘the Rules’). Rule 2 of the Rules defines “Parliamentary Committee”. It reads as follows:- B “2. (1) … “Parliamentary Committee” means a Committee which is appointed or elected by the House or nominated by the Speaker and which works under the direction of the Speaker and presents its report to the House or to the Speaker and the Secretariat for which is provided by the Lok Sabha Secretariat.”

C 77. From the referral judgment, we may reproduce the following paragraphs dealing with the relevant Rules:- “33. Chapter 26 of the Rules deals with Parliamentary Committees and the matters regarding appointment, quorum, decisions of the committee, etc. There are two kinds of Parliamentary Committees: D (i) Standing Committees, and (ii) Ad hoc Committees. The Standing Committees are categorised by their nature of functions. The Standing Committees of the Lok Sabha are as follows: (a) Financial Committees; (b) Subject Committees or departmentally related Standing E Committees of the two houses; (c) Houses Committee i.e. the committees relating to the day to day business of the House; (d) Enquiry Committee; F (e) Scrutiny Committees; (f) Service Committees;

34. A list of Standing Committees of Lok Sabha along with its membership is reproduced as under: Name of Committee Number of Members G Business Advis ory Committee 15 Committee of Privileges 15 Committee on Absence of Members 15 from the Sittings of the House of Committee on Empowerment of H Women

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A Committee on Estimates 30 Committee on Government 15 Assurances Committee on Papers Laid on the 15 Table Committee on Petitions 15 B Committee on Private Members Bills 15 and Resolutions Committee on Public Accounts 22 Committee on Public Undertakings 22 Committee on Subordinate 15 Legislation C Committee on the Welfare of 30 Scheduled Castes and Scheduled Tribes House Committee 12 Joint Committee on Offices of Profit 15 D Joint Committee on Salaries and 15 Allowances of Members of Parliament Library Committee 9 Rules Committee 15 E Apart from the above, there are various departmentally related Standing Committees under various Ministries.”

78. Rules 77 and 78 of the Rules read as under:- “77. (1) After the presentation of the final report of a Select Committee of the House or a Joint Committee of the Houses, as F the case may be, on a Bill, the member in charge may move— (a) that the Bill as reported by the Select Committee of the House or the Joint Committee of the Houses, as the case may be, be mbers taken into consideration; or G (b) that the Bill as reported by the Select Committee of the House or the Joint Committee of the Houses, as the case may be, be re- committed to the same Select Committee or to a new Select Committee, or to the same Joint Committee or to a new Joint Committee with the concurrence of the Council, either— H

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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 or additional provision in the Bill, or B (c) that the Bill as reported by the Select Committee of the House or the Joint Committee of the Houses, be circulated or recirculated, as the case may be, for the purpose of eliciting opinion or further opinion thereon: Provided that any member may object to any such motion being C made if a copy of the report has not been made available for the use of members for two days before the day on which the motion is made and such objection shall prevail, unless the Speaker allows the motion to be made. (2) If the member in charge moves that the Bill as reported by the D Select Committee of the House or the Joint Committee of the Houses, as the case may be, be taken into consideration, any member may move Motions after presentation of Select/ Joint Committee reports. 39 as an amendment that the Bill be re- committed or be circulated or recirculated for the purpose of eliciting opinion or further opinion thereon. E

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

79. Rule 270 of the Rules, which deals with the functions of the Parliamentary Committee meant for Committees of the Rajya Sabha, is relevant. It reads as follows:- “270. Functions.— Each of the Standing Committees shall have the following functions, namely— (a) to consider the Demands for Grants of the related Ministries/ Departments and report thereon. The report shall not suggest anything of the nature of cut motions;

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(b) to examine Bills, pertaining to the related Ministries/ A Departments, referred to the Committee by the Chairman or the Speaker, as the case may be, and report thereon; (c) to consider the annual reports of the Ministries/Departments and report thereon; and (d) to consider national basic long-term policy documents presented B to the Houses, if referred to the Committee by the Chairman or the Speaker, as the case may be, and report thereon: Provided that the Standing Committees shall not consider matters of day-to-day administration of the related Ministries/ Departments.” C

80. Rule 271 provides for the applicability of provisions relating to functions. Rule 274 deals with the report of the Committee. The said Rule reads as follows:- “274. Report of the Committee.— (1) The report of the Standing D Committee shall be based on broad consensus. (2) Any member of the Committee may record a minute of dissent on the report of the Committee. (3) The report of the Committee, together with the minutes of dissent, if any, shall be presented to the Houses.” E

81. Rule 274(3) is extremely significant, for it provides that the report of the Committee together with the minutes of the dissent, if any, is to be presented to the House. Rule 277 stipulates that the report is to have persuasive value. In this context, Rule 277 is worth quoting:- “277. Reports to have persuasive value.— The report of a F Standing Committee shall have persuasive value and shall be treated as considered advice given by the Committee.”” The aforesaid rule makes it quite vivid that the report of the Committee is treated as an advice given by the Committee and it is meant for the Parliament. G

M. Parliamentary privilege

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

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A citizens. An exceptional or extraordinary power or exemption. A peculiar right, advantage, exemption, power, franchise, or immunity held by a person or class, not generally possessed by others.”

83. Parliamentary privilege is defined by author Erskine May inErskine May’s Treatise on the Law, Privileges, Proceedings and Usage B of Parliament:- “Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively... and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. C Thus privilege, though part of the law of the land, is to a certain extent an exemption from the general law.”71

84. The concept of Parliamentary Privilege has its origin in Westminster, Britain in the 17th century with the passage of the Bill of Rights in 1689. Article IX of the Bill of Rights, which laid down the concept of Parliamentary Privilege, reads as under:- “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”

85. Parliamentary Privilege was introduced to prevent any undue interference in the working of the Parliament and thereby enable the members of the Parliament to function effectively and efficiently without unreasonable impediment. Till date, Parliamentary Privilege remains an important feature in any parliamentary democracy. The concept of Parliamentary Privilege requires a balancing act of two opposite arguments as noted by Thomas Erskine May:- “On the one hand, the privileges of Parliament are rights ‘absolutely necessary for the due execution of its powers’; and on the other, the privilege of Parliament granted in regard of public service ‘must not be used for the danger of the commonwealth.”72 G M.1 Parliamentary privilege under the Indian Constitution

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

87. Sub-article (2) of the aforesaid Article clearly lays the postulate that no member of Parliament shall be made liable to any proceedings in any court in respect of anything he has said in the committee. Freedom of speech that is available to the members on the floor of the legislature is quite distinct from the freedom which is available to the citizens under G Article 19(1)(a) of the Constitution. Members of the Parliament enjoy full freedom in respect of what they speak inside the House. Article 105(4) categorically stipulates that the provisions of clauses (1), (2) and (3) shall apply in relation to persons, who by virtue of this Constitution, have the right to speak in, and otherwise to take part in the proceedings H

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A of, a House of the Parliament or any committee thereof as they apply in relation to the members of the Parliament. Thus, there is complete constitutional protection. It is worthy to note that Article 118 provides that each House of the Parliament may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business. Condignly analysed, the Parliament has been enabled by the B Constitution to regulate its procedure apart from what has been stated directly in the Constitution.

88. Article 105 of the Constitution is read mutatis mutandis with Article 194 of the Constitution as the language in both the articles is identical, except that Article 105 employs the word “Parliament” whereas C Article 194 uses the words “Legislature of a State”. Therefore, the interpretation of one of these articles would invariably apply to the other and vice versa.

89. In U.P. Assembly case [Special Reference No. 1 of 1964]73, the controversy pertained to the privileges of the House in relation to the fundamental rights of the citizens. The decision expressly started that the Court was not dealing with the internal proceedings of the House. We may profitably reproduce two passages from the said judgment:- “108. … The obvious answer to this contention is that we are not dealing with any matter relating to the internal management of the House in the present proceedings. We are dealing with the power of the House to punish citizens for contempt alleged to have been committed by them outside, the four walls of the House, and that essentially raises different considerations. x x x x x F

141. In conclusion, we ought to add that throughout our discussion we have consistently attempted to make it clear that the main point which we are discussing is the right of the House to claim that a general warrant issued by it in respect of its contempt alleged to have been committed by a citizen who is not a Member of the G House outside the four walls of the House, is conclusive, for it is on that claim that the House has chosen to take the view that the Judges, the Advocate, and the party have committed contempt by reference to their conduct in the habeas corpus petition pending before the Lucknow Bench of the Allahabad High Court. …” 73 H AIR 1965 SC 745

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

91. In the said case, the Court was interpreting Article 194 of the Constitution and, in that context, it held:- “31. … While interpreting this clause, it is necessary to emphasis that the provisions of the Constitution subject to which freedom of speech has been conferred on the legislators, are not the general provisions of the Constitution but only such of them as relate to the regulation of the procedure of the Legislature. The rules and standing orders may regulate the procedure of the Legislature and some of the provisions of the Constitution may also purport to regulate it; these are, for instance, Articles 208 and 211. The adjectival clause “regulating the procedure of the Legislature” governs both the preceding clauses relating to “the provisions of the Constitution” and “the rules and standing orders.” Therefore, clause (1) confers on the legislators specifically the right of freedom of speech subject to the limitation prescribed by its first part. It would thus appear that by making this clause subject only to the specified provisions of the Constitution, the Constitution-makers wanted to make it clear that they thought it necessary to confer on the legislators freedom of speech separately and, in a sense, independently of Art. 19(1)(a). If all that the legislators were entitled to claim was the freedom of speech and expression enshrined in Art. 19(1)(a), it would have been unnecessary to confer the same right specifically in the manner adopted by Art. 194(1); and so, it would be legitimate to conclude that Art. 19(1)(a) is not one of H

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A the provisions of the Constitution which controls the first part of clause (1) of Art. 194.” Proceeding further, the Court went on to say that clause (2) emphasises the fact that the said freedom is intended to be absolute and unfettered. Similar freedom is guaranteed to the legislators in respect of the votes they may give in the Legislature or any committee thereof. Interpreting clause (3), the Court ruled that the first part of this clause empowers the Legislatures of the States to make laws prescribing their powers, privileges and immunities; the latter part provides that until such laws are made, the Legislatures in question shall enjoy the same powers, privileges and immunities which the House of Commons enjoyed at the commencement of the Constitution. The Constitution-makers, the Court observed, must have thought that the Legislatures would take some time to make laws in respect of their powers, privileges and immunities. During the interval, it was clearly necessary to confer on them the necessary powers, privileges and immunities. There can be little doubt that the powers, privileges and immunities which are contemplated by clause (3) are incidental powers, privileges and immunities which every Legislature must possess in order that it may be able to function effectively, and that explains the purpose of the latter part of clause (3). The Court stated that all the four clauses of Article 194 are not in terms made subject to the provisions contained in Part III. In fact, clause (2) is couched in such wide terms that in exercising the rights conferred on them by clause (1), if the legislators by their speeches contravene any of the fundamental rights guaranteed by Part III, they would not be liable for any action in any court. It further said:- “36. … In dealing with the effect of the provisions contained in clause (3) of Article 194, wherever it appears that there is a conflict between the said provisions and the provisions pertaining to fundamental rights, an attempt win have to be made to resolve the said conflict by the adoption of the rule of harmonious construction. …”

G 92. Dealing with the plenary powers of the legislature, the Court ruled that these powers are controlled by the basic concepts of the written Constitution itself and can be exercised within the legislative fields allotted to their jurisdiction by the three Lists under the Seventh Schedule; but beyond the Lists, the Legislatures cannot travel. They can no doubt H

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exercise their plenary legislative authority and discharge their legislative functions by virtue of the powers conferred on them by the relevant provisions of the Constitution; but the basis of the power is the Constitution itself. Besides, the legislative supremacy of our Legislatures including the Parliament is normally controlled by the provisions contained in Part III of the Constitution. If the Legislatures step beyond the legislative fields assigned to them, or while acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by the Courts in India. Therefore, it is necessary to remember that though our Legislatures have plenary powers, yet they function within the limits prescribed by the material and relevant provisions of the Constitution.

93. Adverting to Article 212(1) of the Constitution, the Court held that the said Article seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. That again is another indication which may afford some assistance in construing the scope and extent of the powers conferred on the House by Article 194(3).

94. In Raja Ram Pal v. Hon’ble Speaker, Lok Sabha and others74, the Court, after referring to U.P. Assembly case (Special Reference No. 1 of 1964), observed that the privileges of the Parliament are rights which are “absolutely necessary for the due execution of its powers” which are enjoyed by individual members as the House would not be able to perform its functions without unimpeded use of the services of its members and also for the protection of its members and the vindication of its own authority and dignity. The Court, for the said purpose, referred to May’s Parliamentary Practice. Parliamentary G privilege conceptually protects the members of Parliament from undue pressure and allows them freedom to function within their domain regard being had to the idea of sustenance of legislative functionalism. The aforesaid protection is absolute. 74 (2007) 3 SCC 184 H

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A M.2 Judicial review of parliamentary proceedings and its privilege

95. Commenting upon the effect of parliamentary privilege, the House of Lords in the case of Hamilton v. Al Fayed75 pointed out that the normal impact of parliamentary privilege is to prevent the Court B from entertaining any evidence, cross-examination or submissions which challenge the veracity or propriety of anything done in the course of parliamentary proceedings.

96. With regard to the role of the Court in the context of parliamentary privileges, Lord Brougham, in the case of Wellesley v. C Duke of Beaufort76, has opined that it is incumbent upon the Courts of law to defend their high and sacred duty of guarding themselves, the liberties and the properties of the subject, and protecting the respectability and the very existence of the Houses of Parliament themselves, against wild and extravagant and groundless and inconsistent notions of privilege.

D 97. The 1999 UK Joint Committee report offers a useful analysis of the respective roles to be played by the Parliament and the Courts in advancing the law of parliamentary privilege:- “There may be good sense sometimes in leaving well alone when problems have not arisen in practice. Seeking to clarify and define boundaries may stir up disputes where currently none exists. But Parliament is not always well advised to adopt a passive stance. There is merit, in the particularly important areas of parliamentary privilege, in making the boundaries reasonably clear before difficulties arise. Nowadays people are increasingly vigorous in their efforts to obtain redress for perceived wrongs. In their court cases they press expansively in areas where the limits of the courts’ jurisdiction are not clear. Faced with demarcation problems in this jurisdictional no-man’s land, the judges perforce must determine the position of the boundary. If Parliament does not act, the courts may find themselves compelled to do so.”

[1993] 1 SCR 319

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possess such inherent privileges as may be necessary to their proper functioning and that the said privileges are part of the fundamental law of the land and are, hence, constitutional. Further, the Court observed that the Courts have the power to determine if the privilege claimed is necessary to the capacity of the legislature to function, but have no power to review the correctness of a particular decision made pursuant to the privilege. In the case of Harvey v. New Brunswick (Attorney General)78, the Court has held that in order to prevent abuses in the guise of privilege from trumping legitimate Charter interests, the Courts must inquire into the legitimacy of a claim of parliamentary privilege.

99. With respect to the review of parliamentary privilege, Lord Coleridge, C.J., in the case of Bradlaugh v. Gossett79, observed that the question as to whether in all cases and under all circumstances the Houses are the sole judges of their own privileges is not necessary to be determined in this case and that to allow any review of parliamentary privilege by a court of law may lead and has led to very grave complications. However, the Law Lord remarked that to hold the resolutions of either House absolutely beyond any inquiry in any court of law may land in conclusion not free from grave complications and it is enough to say that in theory the question is extremely hard to solve.

100. Sir William Holdsworth in his book80 has also made the following observations with regard to review of Parliamentary privileges:- E ‘There are two maxims or principles which govern this subject. The first tells us that ‘Privilege of Parliament is part of the law of the land;’ the second that ‘Each House is the judge of its own privileges’. Now at first sight it may seem that these maxims are contradictory. If privilege of Parliament is part of the law of the land its meaning and extent must be interpreted by the courts, just like any other part of the law; and therefore, neither House can add to its privileges by its own resolution, any more than it can add to any other part of the law by such a resolution. On the other hand if it is true that each House is the sole judge of its own privileges, it might seem that each House was the sole judge as to whether or no it had got a privilege, and so could add to its privileges by its own resolution. This apparent contradiction 78

[1996] 2 SCR 876

79 (1884) 12 QBD 271 (D) 80 “A History of English Law” H

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A is solved if the proper application of these two maxims is attended to. The first maxim applies to cases like Ashby v. White and Stockdale v. Hansard (A), in which the question al issue was the existence of a privilege claimed by the House. This is a matter of law which the courts must decide, without paying any attention to a resolution of the House on the subject. The second maxim applies to cases like that of the Sheriff of Middlesex (B), and Bradlaugh v. Gosset (D), in which an attempt was made to question, not the existence but the mode of user of an undoubted privilege. On this matter the courts will not interfere because each House is the sole judge of the question whether, when or how it will use one of its undoubted privileges.”

101. At this juncture, it is fruitful to refer to Articles 121 and 122 of the Constitution. They read as follows:- “121. Restriction on discussion in Parliament: No discussions shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties expect upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided.

E 122. Courts not to inquire into proceedings of Parliament:- (1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.”

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

103. In Raja Ram Pal (supra), a Constitution Bench, after referring to U.P. Assembly case [Special Reference No. 1 of 1964] (supra), opined:- “267. Indeed, the thrust of the decision was on the examination of H

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the power to issue unspeaking warrants immune from the review A of the courts, and not on the power to deal with contempt itself. A close reading of the case demonstrates that the Court treated the power to punish for contempt as a privilege of the House. Speaking of the legislatures in India, it was stated: [U.P. Assembly case (Special Reference No. 1 of 1964), B “125. There is no doubt that the House has the power to punish for contempt committed outside its chamber, and from that point of view it may claim one of the rights possessed by a court of record.” (Emphasis supplied) C

268. Speaking of the Judges’ power to punish for contempt, the Court observed: [U.P. Assembly case (Special Reference No. 1 of 1964),] “We ought never to forget that the power to punish for contempt large as it is, must always be exercised cautiously, wisely and with circumspection. Frequent or indiscriminate use of this power in anger or irritation would not help to sustain the dignity or status of the court, but may sometimes affect it adversely. Wise Judges never forget that the best way to sustain the dignity and status of their office is to deserve respect from the public at large by the quality of their judgments, the fearlessness, fairness and objectivity of their approach, and by the restraint, dignity and decorum which they observe in their judicial conduct. We venture to think that what is true of the judicature is equally true of the legislatures.” F And again:- “269. It is evident, therefore, that in the opinion of the Court in U.P. Assembly case (Special Reference No. 1 of 1964), legislatures in India do enjoy the power to punish for contempt. It is equally clear that while the fact that the House of Commons G enjoyed the power to issue unspeaking warrants in its capacity of a court of record was one concern, what actually worried the Court was not the source of the power per se, but the “judicial” nature of power to issue unspeaking warrant insofar as it was directly in conflict with the scheme of the Constitution whereby H

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A citizens were guaranteed fundamental rights and the power to enforce the fundamental rights is vested in the courts. It was not the power to punish for contempt about which the Court had reservations. Rather, the abovequoted passage shows that such power had been accepted by the Court. The issue decided concerned the non-reviewability of the warrant issued by the B legislature, in the light of various constitutional provisions.”

104. After referring to various other decisions, the Court summarized the principles relating to the parameters of judicial review in relation to exercise of parliamentary provisions. Some of the conclusions being relevant for the present purpose are reproduced below:- C “(a) Parliament is a coordinate organ and its views do deserve deference even while its acts are amenable to judicial scrutiny; (b) The constitutional system of government abhors absolutism and it being the cardinal principle of our Constitution that no one, D howsoever lofty, can claim to be the sole judge of the power given under the Constitution, mere coordinate constitutional status, or even the status of an exalted constitutional functionaries, does not disentitle this Court from exercising its jurisdiction of judicial review of actions which partake the character of judicial or quasi-judicial decision; E (c) The expediency and necessity of exercise of power or privilege by the legislature are for the determination of the legislative authority and not for determination by the courts; (d) The judicial review of the manner of exercise of power of contempt or privilege does not mean the said jurisdiction is being usurped by the judicature; x x x x (f) The fact that Parliament is an august body of coordinate constitutional position does not mean that there can be no judicially manageable standards to review exercise of its power; (g) While the area of powers, privileges and immunities of the legislature being exceptional and extraordinary its acts, particularly relating to exercise thereof, ought not to be tested on the traditional parameters of judicial review in the same manner as an ordinary H

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administrative action would be tested, and the Court would confine itself to the acknowledged parameters of judicial review and within the judicially discoverable and manageable standards, there is no foundation to the plea that a legislative body cannot be attributed jurisdictional error; (h) The judicature is not prevented from scrutinising the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens; (i) The broad contention that the exercise of privileges by legislatures cannot be decided against the touchstone of fundamental rights or the constitutional provisions is not correct; C (j) If a citizen, whether a non-Member or a Member of the legislature, complains that his fundamental rights under Article 20 or 21 had been contravened, it is the duty of this Court to examine the merits of the said contention, especially when the impugned action entails civil consequences; D (k) There is no basis to the claim of bar of exclusive cognizance or absolute immunity to the parliamentary proceedings in Article 105(3) of the Constitution; (l) The manner of enforcement of privilege by the legislature can result in judicial scrutiny, though subject to the restrictions contained in the other constitutional provisions, for example Article 122 or 212; (m) Article 122(1) and Article 212(1) displace the broad doctrine of exclusive cognizance of the legislature in England of exclusive cognizance of internal proceedings of the House rendering irrelevant the case-law that emanated from courts in that jurisdiction; inasmuch as the same has no application to the system of governance provided by the Constitution of India; (n) Article 122(1) and Article 212(1) prohibit the validity of any proceedings in legislature from being called in question in a court merely on the ground of irregularity of procedure; x x x x (r) Mere availability of the Rules of Procedure and Conduct of Business, as made by the legislature in exercise of enabling powers H

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A under the Constitution, is never a guarantee that they have been duly followed; (s) The proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny; B (t) Even if some of the material on which the action is taken is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action; (u) An ouster clause attaching finality to a determination does ordinarily oust the power of the court to review the decision but C not on grounds of lack of jurisdiction or it being a nullity for some reason such as gross illegality, irrationality, violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.” [Emphasis supplied] D

105. The aforesaid summarization succinctly deals with the judicial review in the sense that the Constitutional Courts are not prevented from scrutinizing the validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens; that there is no absolute immunity to the parliamentary proceeding under Article 105(3) E of the Constitution; that the enforcement of privilege by the legislature can result in judicial scrutiny though subject to the restrictions contained in other constitutional provisions such as Articles 122 and 212; that Article 122(1) and Article 212(1) prohibit the validity of any proceedings in the legislature from being called in question in a court merely on the ground of irregularity of procedure, and the proceedings which may be tainted on account of substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny.

106. We are presently concerned with the interpretation of two constitutional provisions, namely, Articles 122 and 105. It has been submitted by the learned counsel on behalf of the petitioners that the reports of parliamentary committees have various facets, namely, statement of fact made to the committee, statement of policy made to the committee, statements of fact made by Members of Parliament in Parliament and inference drawn from facts and findings of fact and law and, therefore, the Court is required to pose the question as to which of H

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the above aspects of the Parliamentary Committee Reports can be placed A reliance upon. The contention is structured on the foundation that committee reports are admissible in evidence and in public interest litigation in exercise of power under Article 32 for interpreting the legislation and directing the implementation of constitutional or statutory obligation by the executive. B N. Reliance on parliamentary proceedings as external aids

107. A Constitution Bench in R.S. Nayak v. A.R. Antulay81, after referring to various decisions of this Court and development in the law, opined that the exclusionary rule is flickering in its dying embers in its native land of birth and has been given a decent burial by this Court. The C Constitution Bench further observed that the basic purpose of all canons of the Constitution is to ascertain with reasonable certainty the intention of the Parliament and for the said purpose, external aids such as reports of special committee preceding the enactment, the existing state of law, the environment necessitating enactment of a legislation and the object sought to be achieved, etc. which the Parliament held the luxury of availing should not be denied to the Court whose primary function is to give effect to the real intention of the legislature in enacting a statute. The Court was of the view that such a denial would deprive the Court of a substantial and illuminating aid to construction and, therefore, the Court decided to depart from the earlier decisions and held that reports of committees which preceded the enactment of a law, reports of Joint Parliamentary Committees and a report of a commission set up for collecting information can be referred to as external aids of construction.

108. In this regard, we may also usefully state that the speeches of Ministers in Parliament are referred to on certain occasions for limited purposes. A Constitution Bench in State of West Bengal v. Union of India82 has opined that it is, however, well settled that the Statement of Objects and Reasons accompanying a Bill, when introduced in Parliament, cannot be used to determine the true meaning and effect of the substantive provisions of the statute. They cannot be used except for the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation. The same cannot be used as an aid to the construction of the enactment or to show that the legislature did not intend to acquire the proprietary rights vested in 81 (1984) 2 SCC 183 82 AIR 1963 SC 1241 H

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A the State or, in any way, to affect the State Governments’ rights as owners of minerals. A statute, as passed by the Parliament, is the expression of the collective intention of the legislature as a whole, and any statement made by an individual, albeit a Minister, of the intention and objects of the Act cannot be used to cut down the generality of the words used in the statute. B

109. In K.P. Varghese v. Income Tax Officer, Ernakulam and another83, the Court, while referring to the budget speech of the Minister, ruled that speeches made by members of legislatures on the floor of the House where a Bill for enacting a statutory provision is being debated are inadmissible for the purpose of interpreting the statutory provision. C But the Court made it clear that the speech made by the mover of the Bill explaining the reasons for introducing the Bill can certainly be referred to for ascertaining the mischief sought to be remedied and the object and the purpose of the legislation in question. Such a view, as per the Court, was in consonance with the juristic thought not only in the western D countries but also in India as in the exercise of interpretation of a statute, everything which is logically relevant should be admitted. Thereafter, the Court acknowledged a few decisions of this Court where speeches made by the Finance Minister were relied upon by the Court for the purpose of ascertaining the reason for introducing a particular clause. Similar references have also been made in Dr. Ramesh Yeshwant E Prabhoo v. Prabhakar Kashinath Kunte and others84. That apart, parliamentary debates have also been referred to appreciate the context relating to the construction of a statute in Novartis AG v. Union of India and others 85, State of Madhya Pradesh and another v. Dadabhoy’s New Chirimiri Ponri Hill Colliery Co. Pvt. Ltd.86, Union F of India v. Steel Stock Holders Syndicate, Poona87, K.P. Varghese (supra), and Surana Steels Pvt. Ltd. v. Dy. Commissioner of Income Tax and others88.

110. In Ashoka Kumar Thakur v. Union of India and others 89, this Court, after referring to Crawford on Statutory Construction, 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 1 H

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observed that the Rule of Exclusion followed in the British Courts has been criticized by jurists as artificial and there is a strong case for whittling down the said rule. The Court was of the view that the trend of academic opinion and practice in the European system suggests that the interpretation of a statute being an exercise in the ascertainment of meaning, everything which is logically relevant should be admissible which implies that although such extrinsic materials shall not be decisive, yet they should at least be admissible. Further, the Court took note of the fact that there is authority to suggest that resort should be had to these extrinsic materials only in case of incongruities and ambiguities. Where the meaning of the words in a statute is plain, then the language prevails, but in case of obscurity or lack of harmony with other provisions and in other special circumstances, it may be legitimate to take external assistance to determine the object of the provisions, the mischief sought to be remedied, the social context, the words of the authors and other allied matters.

111. In Additional Commissioner of Income Tax, Gujarat v. D Surat Art Silk Cloth Manufacturers’ Association, Surat90, this Court held:- “It is legitimate to look at the state of law prevailing leading to the legislation so as to see what was the mischief at which the Act was directed. This Court has on many occasions taken judicial notice of such matters as the reports of parliamentary committees, and of such other facts as must be assumed to have been within the contemplation of the legislature when the Acts in question were passed.”

112. We have referred to these authorities to highlight that the reports or speeches have been referred to or not referred to for the purposes indicated therein and when the meaning of a statute is not clear or ambiguous, the circumstances that led to the passing of the legislation can be looked into in order to ascertain the intention of the legislature. It is because the reports assume significance and become relevant because they precede the formative process of a legislation. G

113. In Pepper v. Hart91, Lord Browne-Wilkinson, delivering the main speech, set out the test as follows:- 90 (1980) 2 SCC 31 91 [1992] UKHL 3 : [1993] AC 593 : [1992] 3 WLR 1032 H

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

114. The Supreme Court of Canada in R. v. Vasil92relied on parliamentary materials to interpret the phrase “unlawful object” in Section C 212(c) of the Canadian Criminal Code. Speaking for the majority, Justice Lamer (as he then was) said:- “Reference to Hansard is not usually advisable. However, as Canada has, at the time of codification, subject to few changes, adopted the English Draft Code of 1878, it is relevant to know D whether Canada did so in relation to the various sections for the reasons advanced by the English Commissioners or for reasons of its own. Indeed, a reading of Sir John Thompson’s comments in Hansard of April 12, 1892, (House of Commons Debates, Dominion of E Canada, Session 1892, vol. I, at pp. 1378-85) very clearly confirms that all that relates to murder was taken directly from the English Draft Code of 1878. Sir John Thompson explained the proposed murder sections by frequently quoting verbatim the reasons given by the Royal Commissioners in Great Britain, and it is evident that F Canada adopted not only the British Commissioners’ proposed sections but also their reasons.” The Canadian authorities, as is noticeable from Re Anti-Inflation Act (Canada)93, have relaxed the exclusionary rule.

115. In Dharam Dutt and others v. Union of India and others94, G the Court took note of the three Parliamentary Standing Committees appointed at different points of time which had recommended the taking over 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) 452 94 H (2004) 1 SCC 712

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Further, this Court took note that it had already pointed out in an earlier A part of this judgment that in the present case, successive parliamentary committees had found substance in the complaints received that an institution of national importance was suffering from mismanagement and maladministration and in pursuance of such PSC report, the Central Government acted on such findings. B

116. In Kuldip Nayar (supra), certain amendments in the Representation of the People Act, 1951 were challenged which had the effect of adopting an open ballot system instead of a secret ballot system for elections to the Rajya Sabha. Defending the amendment, the Union of India submitted a copy of a Report of the Ethics Committee of the Parliament which recommended the open ballot system for the aforesaid purpose. The Committee had noted the emerging trends of cross voting in elections for Rajya Sabha and Legislative Councils in the State. It also made a reference to rampant allegations that large sums of money and other considerations encourage the electorate to vote in a particular manner sometimes leading to defeat of official candidates belonging to their own political party. In this context, the Court took note of the recommendations of the Committee Report while testing the vires of the impugned amendment.

117. From the aforesaid, it clear as day that the Court can take aid of the report of the parliamentary committee for the purpose of appreciating the historical background of the statutory provisions and it can also refer to committee report or the speech of the Minister on the floor of the House of the Parliament if there is any kind of ambiguity or incongruity in a provision of an enactment. Further, it is quite vivid on what occasions and situations the Parliamentary Standing Committee Reports or the reports of other Parliamentary Committees can be taken note of by the Court and for what purpose. Relying on the same for the purpose of interpreting the meaning of the statutory provision where it is ambiguous and unclear or, for that matter, to appreciate the background of the enacted law is quite different from referring to it for the purpose of arriving at a factual finding. That may invite a contest, a challenge, a G dispute and, if a contest arises, the Court, in such circumstances, will be called upon to rule on the same.

118. In the case at hand, what is urged by the learned counsel for the petitioners is that though no interpretation is involved, yet they can refer to the report of the Parliamentary Standing Committee to establish H

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A a fact which they have pleaded and asserted in the writ petition. According to them, the committees are constituted to make the executive accountable and when the public interest litigation is preferred to safeguard the public interest, the report assumes great significance and it is extremely necessary to refer to the same to arrive at the truth of the controversy. In such a situation, they would contend that the question of aid does not relate to any kind of parliamentary privilege. It is the stand of the petitioners that they do not intend to seek liberty from the Parliament or the Parliamentary Committee to be questioned or cross examined. In fact, reliance of the report has nothing to do with what is protected by the Constitution under Article 105. The court proceedings are independent of the Parliament and based on multiple inputs, materials and evidence and in such a situation, the parties are at liberty to persuade the Court to come to a determination of facts and form an opinion in law at variance with the parliamentary committee report. The learned counsel for the petitioners would further submit that advancing submissions relying on the report would not come within the scope of parliamentary privilege. D O. Section 57(4) of the Indian Evidence Act

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

120. To appreciate the stand, it is necessary to scan the relevant sub-section (4) of Section 57 of the Evidence Act. It reads as follows:- “57. Facts of which Court must take judicial notice:- The Court shall take judicial notice of the following facts: F

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

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

122. This Court, in SoleTrustee Lok Shikshana Trust v. Commissioner of Income Tax, Mysore95, has observed that Section 57, sub-section (4) enjoins upon the Courts to take judicial notice of the course of proceedings of Parliament on the assumption that it is relevant. C

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

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

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A respondents an opportunity of being heard in consonance with the principles of natural justice. This, in turn, would give rise to a very peculiar situation as the respondents would invariably be left with the option either to: (i) accept, without contest, the opinion expressed in the parliamentary standing committee report and the facts stated therein; or (ii) contest the correctness of the opinion of the parliamentary standing committee report and the facts stated therein. In the former scenario, the respondents at the very least would be put in an inequitable and disadvantageous position. It is in the latter scenario that the Court would be called upon to adjudicate the contentious facts stated in the report. Ergo, whenever a contest to a factual finding in a PSC Report is likely and probable, the Court should refrain from doing so. It is one thing to say that the report being a public document is admissible in evidence, but it is quite different to allow a challenge.

125. It is worthy to note here that there is an intrinsic difference between parliamentary proceedings which are in the nature of statement of a Minister or of a Mover of a bill made in the Parliament for highlighting the purpose of an enactment or, for that matter, a parliamentary committee report that had come into existence prior to the enactment of a law and a contestable/conflicting matter of “fact” stated in the parliamentary committee report. It is the parliamentary proceedings falling within the former category of which Courts are enjoined under Section 57, sub- E section (4) to take judicial notice of, whereas, for the latter category of parliamentary proceedings, the truthfulness of the contestable matter of fact stated during such proceedings has to be proved in the manner known to law.

126. This again brings us to the hazardous zone wherein taking F judicial notice of parliamentary standing committee reports for a factual finding will obviously be required to be proved for ascertaining the truth of a contestable matter of fact stated in the said report.

127. Taking judicial notice of the Parliamentary Standing Committee report can only be to the extent that such a report exists. As G already stated, the said report can be taken aid of for understanding the statutory provision wherever it is felt so necessary or to take cognizance of a historical fact that is different from a contest. The word “contest”, according to Black’s Law Dictionary, means to make defence to an adverse claim in a Court of law; to oppose, resist or dispute; to strive to H win or hold; to controvert, litigate, call in question, challenge to defend.

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This being the meaning of the word “contest”, the submission to adjudge the lis on the factual score of the report is to be negatived. P. The decisions in which parliamentary standing committee report/s have been referred to

128. Before we proceed to record our conclusions, it is necessary to allude to various authorities cited by the petitioners herein highlighting the occasions where this Court has referred to and taken note of various Parliamentary Committee reports. In Catering Cleaners of Southern Railway v. Union of India and another96, the catering cleaners of the Southern Railway filed a writ petition praying for abolition of the contract labour system and their absorption as direct employees of the principal employer, viz., the Southern Railway. This Court referred to the Parliamentary Committee Report under the Chairmanship of K.P. Tewari which had dealt with the question of abolishing the contract labour system and regularizing the services of the catering cleaners. The Committee had,inter alia, recommended that the government should consider direct employment of catering cleaners by the Railway Administration to avoid their exploitation.

129. In State of Maharashtra v. Milind and others97, the issue was whether the tribe of ‘Halba-Koshtis’ were treated as ‘Halbas’ in the specified areas of Vidarbha. This Court, in the said case, referred to the report of Joint Parliamentary Committee which did not make any recommendation to include ‘Halba-Koshti’ in the Scheduled Tribes Order. Again, in Federation of Railway Officers Association (supra),this Court alluded to the reports and recommendations of several committees such as the Railways Reforms Committee in 1984 which recommended the formation of new four Zones; the Standing Committee Report of F Parliament on Railway which recommended for creation of new zones on the basis of work load, efficiency and effective management and the Rakesh Mohan Committee Report which had suggested that the formation of additional zones would be of dubious merit and would add substantial cost and be of little value to the system. G

130. In Ms. Aruna Roy and Others v. Union of India and others98,the education policy framed by NCERT was challenged by the petitioners. This Court while dealing with the said issue, referred, in 96 (1987) 1 SCC 700 97 (2001) 1 SCC 4 98 (2002) 7 SCC 368 H

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A extensio, to the Parliamentary committee report which had made several recommendations in this regard. After so referring to the report, the Court was of the view that if the recommendations made by the Parliamentary Committee are accepted by the NCERT and are sought to be implemented, it cannot be stated that its action is arbitrary or unjustified. B

131. In M.C. Mehta v. Union of India and others99,this Court referred to the report of the Standing Committee of Parliament on Petroleum & Natural Gas which expressed concern over the phenomenal rise of air pollution and made some recommendations. The Court, in this case, made it clear that it had mentioned the report only for indicating C that the Government was and is proactively supporting the reduction of vehicular pollution by controlling the emission norms and complying with the Bharat Stage standards.

132. In Lal Babu Priyadarshi v. Amritpal Singh100, while dealing with a Trade Mark case under various sections of the Trade and D Merchandise Marks Act, 1958 [repealed by the Trade Marks Act, 1999 (47 of 1999), this Court referred to the Eighth Report on the Trade Marks Bill, 1993 submitted by the Parliamentary Standing Committee which was of the opinion that any symbol relating to Gods, Goddesses or places of worship should not ordinarily be registered as a trade mark.

E 133. The petitioners have also referred to other cases such as Gujarat Electricity Board v. Hind Mazdoor Sabha and others101,Modern Dental College and Research Centre and others v. State of Madhya Pradesh and others102 and Krishan Lal Gera v. State of Haryana and others103 wherein also this Court has made a F passing reference to reports of the Parliament Standing Committees.

134. We have, for the sake of completeness, noted the decisions relied upon by the petitioners to advance their stand. But it is condign to mention here that in the abovereferred cases, the question of contest/ challenge never emerged. In all the cases, the situation never arose that warranted any contest amongst the competing parties for arriving at a G particular 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 353 103 H (2011) 10 SCC 529

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our considered opinion, do not render any assistance to the controversy A in question.

135. We have distinguished the said decisions, as we are disposed to think that a party can always establish his case on the materials on record and the Court can independently adjudicate the controversy without allowing a challenge to Parliamentary Standing Committee report. We B think so as the Court has a constitutional duty to strike a delicate balance between the legislature and judiciary. It is more so when the issue does not involve a fundamental right that is affected by parliamentary action. In such a situation, we may deal with the concept of jurisprudential foundational principle having due regard to constitutional conscience. The perception of self-evolved judicial restraint and the idea of jurisprudential progression has to be juxtaposed for a seemly balance. There is no strait-jacket formula for determining what constitutes judicial restraint and judicial progressionism. Sometimes, there is necessity for the Courts to conceptualise a path that can be a wise middle path. The middle course between these two views is the concept of judicial engagement so that the concept of judicial restraint does not take the colour of judicial abdication or judicial passivism. Judicial engagement requires that the Courts maintain their constitutional obligation to remain the sentinel on qui vive. It requires a vigilant progressive judiciary for the rights and liberties of the citizens to be sustained. Thus, as long as a decision of a Court is progressive being in accord with the theory of judicial engagement, the approach would be to ensure the proper discharge of duty by the Constitutional Courts so as to secure the inalienable rights of the citizens recognized by the Constitution. A Constitutional Court cannot abdicate its duty to allow injustice to get any space or not allow real space to a principle that has certain range of acceptability. Stradford F C.J., speaking the tone and tenor in Jajbhay v Cassim104,has observed:- “Now the Roman-Dutch law, which we must apply, is a living system capable of growth and development to allow adaptation to the increasing complexities and activities of modern civilised life. The instruments of that development are our own Courts of law. G In saying that, of course, I do not mean that it is permissible for a Court of law to alter the law; its function is to elucidate, expound and apply the law. But it would be idle to deny that in the process of the exercise of those functions rules of law are slowly and beneficially evolved.” 104 1939 AD 537at p 542 H