KALPANA MEHTA AND OTHERS v. UNION OF INDIA AND OTHERS

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A 136. In Miranda v. Arizona105,the Supreme Court of United States observed:- ‘That the Court’s holding today is neither compelled nor even strongly suggested by the language of the Fifth Amendment, is at odds with American and English legal history, and involves a B departure from a long line of precedent does not prove either that the Court has exceeded its powers or that the Court is wrong or unwise in its present reinterpretation of the Fifth Amendment. It does, however, underscore the obvious — that the Court has not discovered or found the law in making today’s decision, nor has it derived it from some irrefutable sources; what it has done is to make new law and new public policy in much the same way that it has in the course of interpreting other great clauses of the Constitution. This is what the Court historically has done. Indeed, it is what it must do, and will continue to do until and unless there is some fundamental change in the constitutional distribution of governmental powers.”

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[DIPAK MISRA, CJI]

Constitutional Courts should always adopt a progressive approach and display a dynamic and spirited discharge of duties regard being had to the concepts of judicial statesmanship and judicial engagement, for they subserve the larger public interest. In the case at hand, the constitutional obligation persuades us to take the view that the Parliamentary Standing Committee Report or any Parliamentary Committee Report can be taken judicial notice of and regarded as admissible in evidence, but it can neither be impinged nor challenged nor its validity can be called in question. Q. Conclusions

138. In view of the aforesaid analysis, we answer the referred questions in the following manner:- C (i) Parliamentary Standing Committee report can be taken aid of for the purpose of interpretation of a statutory provision wherever it is so necessary and also it can be taken note of as existence of a historical fact. (ii) Judicial notice can be taken of the Parliamentary Standing D Committee report under Section 57(4) of the Evidence Act and it is admissible under Section 74 of the said Act. (iii) In a litigation filed either under Article 32 or Article 136 of the Constitution of India, this Court can take on record the report of the Parliamentary Standing Committee. However, the report E cannot be impinged or challenged in a court of law. (iv) Where the fact is contentious, the petitioner can always collect the facts from many a source and produce such facts by way of affidavits, and the Court can render its verdict by way of independent adjudication. F (v) The Parliamentary Standing Committee report being in the public domain can invite fair comments and criticism from the citizens as in such a situation, the citizens do not really comment upon any member of the Parliament to invite the hazard of violation of parliamentary privilege. G

139. The reference is answered accordingly.

140. Let the Writ Petitions be listed before the appropriate Bench for hearing.

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A DR. D. Y. CHANDRACHUD, J. This judgment has been divided into sections to facilitate analysis. They are: A Reference to the Constitution Bench B Submissions B C The Constitution D Parliamentary Standing Committees E Parliamentary privilege E.1 UK Decisions C E.2 India F Separation of powers : a nuanced modern doctrine G A functional relationship H Conclusion D A Reference to the Constitution Bench

1. Two public interest petitions instituted before this Court under Article 32 of the Constitution in 2012 and 2013 have placed into focus the process adopted for licensing vaccines1 to prevent cervical cancer. The petitioners allege that the process of licensing was not preceded by E adequate clinical trials to ensure the safety and efficacy of the vaccines. Nearly twenty four thousand adolescent girls are alleged to have been vaccinated in Gujarat and before its bifurcation, in Andhra Pradesh without following safeguards. The trials are alleged to have been conducted under the auspices of a project initiated by the Sixth respondent. The drugs are manufactured and marketed by the Seventh and Eighth F respondents. Each of them produces pharmaceuticals. The petition calls into question the role of the Drugs Controller General of India and the Indian Council of Medical Research. The administration of the vaccine is alleged to have resulted in serious health disorders. Deaths were reported. G

2. On 12 August 2014, a Bench of two judges formulated the questions which would have to be addressed in the course of the proceedings.2 They are:

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

“(i) Whether before the drug was accepted to be used as a vaccine A in India, the Drugs Controller General of India and the ICMR had followed the procedure for said introduction? (ii) What is the action taken after the Parliamentary Committee had submitted the 72nd Report on 30.8.2013? (iii) What are the reasons for choosing certain places in Gujarat B and Andhra Pradesh? (iv) What has actually caused the deaths and other ailments who had been administered the said vaccine? (v) Assuming this vaccine has been administered, regard being C had to the nature of the vaccine, being not an ordinary one, what steps have been taken for monitoring the same by the competent authorities of the Union of India, who are concerned with the health of the nation as well as the State Governments who have an equal role in this regard? D (vi) The girls who were administered the vaccine, whether proper consent has been taken from their parents/guardians, as we have been apprised at the Bar that the young girls had not reached the age of majority? (vii) What protocol is required to be observed/followed, assuming this kind of vaccination is required to be carried out?”

3. At the hearing, the petitioners relied upon the 81st Report of the Parliamentary Standing Committee dated 22 December 2014. The petitioners sought to place reliance on the Report so as to enable the Court to be apprised of the facts and to facilitate its conclusions and directions. This was objected to.

4Copy pinpoint4. The issue which arose before the Court was whether a report of a Parliamentary Standing Committee can be relied upon in a public interest litigation under Article 32 or Article 226. If it could be adverted to, then an allied issue was the extent to which reliance could be placed upon it and its probative value. The then Attorney General for India, in response to a request for assistance, submitted that reports of Parliamentary Standing Committees are at best an external aid to construction, to determine the surrounding circumstances or historical facts for understanding the mischief sought to be remedied by legislation. The Union government urged that reports of Parliamentary Standing H

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A Committees are meant to guide the functioning of its departments and are a precursor to debates in Parliament. However, those reports (it was urged) cannot be utilized in court nor can they be subject to a contest between litigating parties.

5Copy pinpoint5. In an order dated 5 April 2017, a two judge Bench of this Court B adverted to Articles 105 and 122 of the Constitution and observed thus: “69. The purpose of referring to the aforesaid Articles is that while exercising the power of judicial review or to place reliance on the report of the Parliamentary Standing Committee, the doctrine of restraint has to be applied by this Court as required under the C Constitution. What is argued by the learned counsel for the petitioners is that there is no question of any kind of judicial review from this Court or attributing anything on the conduct of any of the members of the Committee, but to look at the report for understanding the controversy before us. The submission “looking at the report,” as we perceive, is nothing but placing reliance D thereupon. The view of a member of Parliament or a member of the Parliamentary Standing Committee who enjoys freedom of speech and expression within the constitutional parameters and the rules or regulations framed by Parliament inside Parliament or the Committee is not to be adverted to by the court in a lis.”3

6Copy pinpoint6. The referring order notes that when a mandamus is sought, the Court has to address the facts which are the foundation of the case and the opposition, in response. If a Court were to be called upon to peruse the report of a Parliamentary Standing Committee, a contestant to the litigation may well seek to challenge it. Such a challenge, according to F the Court, in the form of “an invitation to contest” the report of a Parliamentary Committee “is likely to disturb the delicate balance that the Constitution provides between the constitutional institutions”. Such a contest and adjudication would (in that view) be contrary to the privileges of Parliament which the Constitution protects. Hence according to the Court: G “73…we are prima facie of the view that the Parliamentary Standing Committee report may not be tendered as a document to augment the stance on the factual score that a particular activity is unacceptable or erroneous. ” 3 Id, at pages 320-321 H

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

A substantial question involving the interpretation of the Constitution A having arisen, two questions have been referred to the Constitution Bench under Article 145(3): “(i) Whether in a litigation filed before this Court either under Article 32 or Article 136 of the Constitution of India, the Court can refer to and place reliance upon the report of the Parliamentary B Standing Committee; and (ii) Whether such a report can be looked at for the purpose of reference and, if so, can there be restrictions for the purpose of reference regard being had to the concept of parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive?.”4 B Submissions

7Copy pinpoint7. Leading the submissions on behalf of the petitioners, Mr Harish Salve, learned Senior Counsel underscored the importance of three constitutional principles: (i) Privileges of Parliament; (ii) Comity of institutions; and (iii) Separation of powers. E Based on them, the submission is that reference to what transpires in a co-equal constitutional institution must be circumspect and consistent with due deference to and comity between institutions. Freedom of speech and expression is implicit in the working of every institution and it is that institution alone which can regulate its own processes. In Parliament, F what speakers state is controlled by the House or, as the case may be, by its Committee and a falsehood in Parliament is punishable by that institution alone. It has been urged that if what is stated in a report of a Parliamentary Standing Committee were to be impeached in a court of law, that would affect the control of the Committee and of Parliament itself. The functions performed by Parliament and by the judiciary as G two co-equal branches are, it is urged, completely different. Parliamentary business is either for the purpose of enforcing accountability of the government or to enact legislation. The function of judicial institutions is 4 Id, at page 322 H

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A adjudicatory. Courts resolve a lis on objective satisfaction and have a duty to act judicially. Courts would not, it has been urged, receive as evidence of facts any material whose truth or integrity cannot be assailed in court.

8Copy pinpoint8. On the above conceptual foundation, Mr Salve urged that the report of a Parliamentary Standing Committee can be relied upon in a judicial proceeding in two exceptional situations: (i) Where it becomes necessary for the court to examine the legislative history of a statutory provision; (ii) As a source from which the policy of the government, as reflected in the statements made by a Minister before the House can be discerned; and (iii) Reports of Parliamentary Standing Committees are meant for consideration before Parliament and can only be regarded as “considered advice” to the House. D Except in the two situations enumerated above, no petition seeking a mandamus can be brought before the court on the basis of such a report for the reason that (i) No right can be founded on the recommendation of a House Committee; and (ii) Relying on such a report may result in a challenge before the court, impinging upon Parliamentary E privileges.

9Copy pinpoint9. Mr K K Venugopal, the learned Attorney General for India has supported the adoption of a rule of exclusion, based on the privileges of the legislature, separation of powers and as a matter of textual interpretation of the Constitution. In his submission: F I Committees of Parliament being an essential adjunct to Parliament, and their reports being for the purpose of advising and guiding Parliament in framing laws and the executive for framing policies, it would be a breach of privilege of Parliament to judicially scrutinize and/or review these reports for any G purpose whatsoever; II The broad separation of powers, which is a part of the basic structure of the Constitution of India, would prevent Courts from subjecting the reports of Parliamentary Standing Committees to scrutiny or judicial review; and H

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

III A conjoint reading of Articles 105 and 122 of the Constitution A would establish that, expressly or by necessary implication, there is a bar on the Courts from scrutinizing or judicially reviewing the functioning or reports of the Committees of Parliament.

10Copy pinpoint10. Refuting the submissions which have been urged by the B Attorney General and on behalf of the pharmaceutical companies, Mr. Colin Gonsalves, learned Senior Counsel urges that there can be no objection to reliance being placed on the Report of a Parliamentary Standing Committee where (as in the present case) there is no attempt (i) to criticize Parliament; C (ii) to summon a witness; or (iii) to breach a privilege of the legislating body. The Report of a Parliamentary Standing Committee is (it is urged) relied upon only for the court to seek guidance from it. The court may derive such support in whichever manner it may best regard in the interest of justice, to advance a cause which has been brought in a social action litigation. According to Mr Gonsalves, the core of the submission (urged by Mr Salve) is that because his clients object to the findings in the Report, it becomes a contentious issue. Mr Gonsalves submits that this Court should not allow what in substance is an argument for a black out against the highest court taking notice of the report in its PIL jurisdiction. The submission is that the Court need not treat any of the facts contained in the Report as conclusive except those that are permitted by Section 57 of the Indian Evidence Act 1872. No mandamus is sought that the recommendations of the Parliamentary Committee be enforced. The F Court, it has been urged, will not be invited to comment upon the Report even if it were not to agree with the contents of the Report. Learned Counsel urged that the legislative function of Parliament is distinct from the oversight which it exercises over government departments. An issue of parliamentary privileges arises when the court makes a member of Parliament or of a Parliamentary Committee liable in a civil or criminal G action for what is stated in Parliament. Such is not the position here. Mr Gonsalves submitted that in significant respects, our Constitution marks a historical break from the English Parliamentary tradition. India has adopted the doctrine of constitutional supremacy and not Parliamentary sovereignty, as in the UK. Hence, cases decided under the English H

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A Common Law cannot be transplanted, without regard to context, in Indian jurisprudence on the subject. The unrestrained use of parliamentary privileges, it has been urged, stands modified in the Indian context, which is governed by constitutional supremacy. In matters involving public interest or issues of a national character, both the institutions – Parliament and the courts – must act together. As a matter of fact, Parliament has B placed the Report of its Standing Committee in the public domain. It is ironical, Mr Gonsalves urges, that in the present case, it is the executive which seeks to protect itself from disclosure in the guise of parliamentary privileges. Finally, it has been urged that the public interest jurisdiction is not adversarial and constitutes a distinctly Indian phenomenon. Where C the fulfilment and pursuit of a constitutional goal, national purpose or public interest is in issue, both Parliament and the judiciary will act in comity. No issue arises here in relation to the separation of powers or breach of Parliamentary privilege. On the contrary, it has been submitted that the approach of the respondents is not in accordance with the march of transparency in our law. D

11Copy pinpoint11. Mr Anand Grover, learned Senior Counsel submitted that if there is no dispute that a certain statement was made before Parliament or, as the case may be, a Parliamentary Standing Committee, such a statement can be relied upon as a fact of it being stated in Parliament. The truth of the statement is, in the submission of the learned Senior E Counsel, another and distinct issue. The Report is uncontentious not as regards the truth of its contents but of it having been made. The court in the exercise of its power of judicial review will not hold that an inference drawn by a Parliamentary Committee is wrong. But the court can certainly look at a statement where there is no dispute of it having been F made.

12Copy pinpoint12. Mr Shyam Divan and Mr Gourab Banerji, learned Senior Counsel have broadly pursued the same line of argument as the learned Attorney General for India and Mr Harish Salve. C The Constitution G

13Copy pinpoint13. Articles 105, 118, 119 and 121 are comprised in Part V of the Constitution which deals with the Union and form a part of Chapter II, which deals with Parliament. Article 105 is extracted below: “105.(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, H there shall be freedom of speech in Parliament.

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(2) No member of Parliament shall be liable to any proceedings in A 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. B (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 C the coming into force of section 15 of the Constitution (Forty- fourth Amendment) Act, 1978.] (4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House D of Parliament or any committee thereof as they apply in relation to members of Parliament.”

14Copy pinpoint14. The first major principle which emerges from Article 105 is that it expects, recognizes and protects the freedom of speech in Parliament. Stated in a sentence, the principle enunciates a vital norm for the existence of democracy. Parliament represents collectively, through the representative character of its members, the voice and aspirations of the people. Free speech within the Parliament is crucial for democratic governance. It is through the fearless expression of their views that Parliamentarians pursue their commitment to those who elect them. The power of speech exacts democratic accountability from elected governments. The free flow of dialogue ensures that in framing legislation and overseeing government policies, Parliament reflects the diverse views of the electorate which an elected institution represents.

15Copy pinpoint15. The Constitution recognizes free speech as a fundamental right in Article 19(1)(a). A separate articulation of that right in Article G 105(1) shows how important the debates and expression of view in Parliament have been viewed by the draftspersons. Article 105(1) is not a simple reiteration or for that matter, a surplusage. It embodies the fundamental value that the free and fearless exposition of critique in H

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A Parliament is the essence of democracy. Elected members of Parliament represent the voices of the citizens. In giving expression to the concerns of citizens, Parliamentary speech enhances democracy. Article 105(1) emphasizes free speech as an institutional value, apart from it being a part of individual rights. Elected members of the legislature continue to wield that fundamental right in their individual capacity. Collectively, their expression of opinion has an institutional protection since the words which they speak are spoken within the portals of Parliament. This articulated major premise is however subject to the provisions of the Constitution and is conditioned by the procedure of Parliament embodied in its rules and standing orders. The recognition in clause (1) that there shall be freedom of speech in Parliament is effectuated by the immunity conferred on Members of Parliament against being liable in a court of law for anything said or for any vote given in Parliament or a committee. Similarly, a person who publishes a report, paper, votes or proceedings under the authority of Parliament is protected against liability in any court. In other respects – that is to say, on matters other than those falling under clause (1) and (2), Parliament has been empowered to define the powers, privileges and immunities of each of its Houses and of its members and committees. Until Parliament does so, those powers, privileges and immunities are such as existed immediately before the enforcement of the 44th amendment to the Constitution5. Clause (4) of Article 105 widens the scope of the protection by making it applicable “in relation to persons” who have a right to speak in or to take part in the proceedings before the House or its committees. The protection afforded to Members of Parliament is extended to all such persons as well. Committees of the Houses of Parliament are established by and under the authority of Parliament. They represent Parliament. They are comprised within F Parliament and are as much, Parliament.

16Copy pinpoint16. Article 118 deals with the Rules of Procedure of Parliament: “118.(1) Each House of Parliament may make rules for regulating, subject to the provisions of this Constitution, its procedure and the G conduct of its business. (2) Until rules are made under clause (1), the rules of procedure and standing orders in force immediately before the commencement of this Constitution with respect to the Legislature

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of the Dominion of India shall have effect in relation to Parliament A subject to such modifications and adaptations as may be made therein by the Chairman of the Council of States or the Speaker of the House of the People, as the case may be. (3) The President, after consultation with the Chairman of the Council of States and the Speaker of the House of the People, B may make rules as to the procedure with respect to joint sittings of, and communications between, the two Houses. (4) At a joint sitting of the two Houses the Speaker of the House of the People, or in his absence such person as may be determined by rules of procedure made under clause (3), shall preside.” C The procedure and conduct of business of Parliament are governed by the rules made by each House. The rule making authority is subject only to the provisions of the Constitution. Until rules are framed, the procedure of Parliament was to be governed by the rules of procedure and Standing Orders which applied to the legislature of the Dominion of D India immediately before the commencement of the Constitution (subject to adaptations and modifications). Rules of procedure for joint sittings of the two Houses of Parliament and in regard to communications between them are to be framed by the President in consultation with the Chairman of the Rajya Sabha and the Speaker of the Lok Sabha. E

17Copy pinpoint17. Article 119 provides for regulation by law of the procedure in Parliament in relation to financial business. Article 119 provides thus: “119.Parliament may, for the purpose of the timely completion of financial business, regulate by law the procedure of, and the conduct of business in, each House of Parliament in relation to F any financial matter or to any Bill for the appropriation of moneys out of the Consolidated Fund of India, and, if and so far as any provision of any law so made is inconsistent with any rule made by a House of Parliament under clause (1) of article 118 or with any rule or standing order having effect in relation to Parliament under clause (2) of that article, such provision shall prevail.” G Article 119 thus embodies a special provision which enables Parliament to regulate the procedure for and conduct of business in each House in relation to financial matters or for appropriation of monies from the Consolidated Fund. H

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18Copy pinpoint18. Article 122 contains a bar on courts inquiring into the validity of any proceedings of Parliament on the ground of an irregularity of procedure: “122.(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of B 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.” C Article 122 protects the proceedings in Parliament being questioned on the ground of an irregularity or procedure. In a similar vein, a Member of Parliament or an officer vested with authority under the Constitution to regulate the procedure or the conduct of business (or to maintain order) in Parliament is immune from being subject to the jurisdiction of D any Court for the exercise of those powers. Those who perform the task – sometimes unenviable – of maintaining order in Parliament are also protected, to enable them to discharge their functions dispassionately.

19Copy pinpoint19. The provisions contained in Chapter II of Part V are mirrored, in the case of the State Legislatures, in Chapter III of Part VI. The E corresponding provisions in regard to State Legislatures are contained in Articles 194, 208, 209 and 212.

20Copy pinpoint20. The fundamental principle which the Constitution embodies is in terms of its recognition of and protection to the freedom of speech in Parliament. F Freedom of speech has been entrenched by conferring an immunity against holding a Member of Parliament liable for what has been spoken in Parliament or for a vote which has been tendered. The freedom to speak is extended to other persons who have a right to speak in or take part in the proceedings of Parliament. Parliament is vested with the authority to regulate its procedures and to define its powers, G privileges and immunities. The same protection which extends to Parliamentary proceedings is extended to proceedings in or before the Committees constituted by each House. Parliament has been vested with a complete and exclusive authority to regulate its own procedure and the conduct of its business. H

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21Copy pinpoint21. While making the above provisions, the Constitution has A carefully engrafted provisions to ensure institutional comity between Parliament and the judiciary. Under Article 121, the conduct of a Judge of the Supreme Court or of a High Court in the discharge of duties cannot be discussed in Parliament (except upon a motion for removal). Article 211 makes a similar provision in regard to the state legislatures. B D Parliamentary Standing Committees

22Copy pinpoint22. Parliamentary Committees exist both in the Westminster form of government in the United Kingdom as well in the Houses of Parliament in India. In the UK, Select Committees have emerged as instruments through which Parliament scrutinizes the policies and actions of C government and enforces accountability of government and its officers. Select committees are composed of specifically nominated members of Parliament and exercise the authority which the House delegates to them. The role of select committees has been set forth in Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of D Parliament6 : “Select committees are appointed by the House to perform a wide range of functions on the House’s behalf. Most notably they have become over recent years the principal mechanism by which the House discharges its responsibilities for the scrutiny of government E policy and actions. Increasingly this scrutiny work has become the most widely recognized and public means by which Parliament holds government Ministers and their departments to account.” The scope of deliberations or inquiries before a Select Committee is defined in the order by which the committee is appointed. When a Bill F is referred to a Select Committee, the Bill constitutes the order of reference7. Select committees are a microcosm of the House. During the course of their work, Select Committees rely upon documentary and oral evidence8: “Once received by the committee as evidence, papers prepared G for a committee become its property and may not be published 6 Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, (Lexis Nexis, 24th edn., 2011), 37. 7 Id, at pages 805-806. 8 Erskine May, at page 818. H

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A without the express authority of the committee. Some committees have agreed to a resolution at the beginning of an inquiry authorizing witnesses to publish their own evidence.” Evidence which has been collected during the course of an inquiry is published with the report of the committee9: B “It is usual practice of committees to publish the evidence which they have taken during the course of an inquiry with the report to which the evidence is relevant. In the case of longer inquiries, the evidence may be separately published during the course of the inquiry. In such cases, however, that evidence may be published C again with the report. Additionally, committees may take evidence with no intention of producing a subsequent report and publish it without comment.” A Select committee decides when to publish any report which it has agreed10. D Article 105 of the Indian Constitution recognizes committees of the Houses of Parliament. Rules of Procedure of the Lok Sabha and the Rajya Sabha framed under Article 118(1) of the Constitution inter alia provide for the organization and working of these committees11.

23Copy pinpoint23. The rules governing procedure and the conduct of business in E the Rajya Sabha provide for the constitution of the committees of the House. Chapter IX of the Rules contains provisions relating to legislation. Provisions have been made for Bills which originate in the Rajya Sabha and for those which originate in the Lok Sabha and are transmitted to the Rajya Sabha. Under Rule 72, members of a Select Committee for a F Bill are appointed by the Rajya Sabha when a motion that the Bill be referred to a Select Committee is made. Rule 84 empowers the Select Committee to require the attendance of witnesses or the production of papers or records. The Select Committee can hear expert evidence and representatives of special interests affected by the measure. Documents submitted to the Committee cannot be withdrawn or altered without its G knowledge and approval. The Select Committee, under Rule 85, is 9 Erskine May, at page 825. 10 Erskine May, at page 838 11 Rules of Procedure and Conduct of Business in Lok Sabha, (Lok Sabha Secretariat, 15th edn., April 2014). Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha), H (published by the Secretary General, 9 th edn., August 2016).

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empowered to decide upon its procedure and the nature of questions A which it may address to a witness called before it. Rule 86 provides for the printing and publication of evidence and empowers the Committee to direct that the evidence or a summary be laid on the table. Evidence tendered before the Select Committee can only be published after it has been laid on the table. The Select Committee prepares its report on the B Bill referred to it, under Rule 90. Under Rule 91, the report of the Select Committee on a Bill, together with minutes of dissent, is presented to the Rajya Sabha by the Chairperson of the Committee. Under Rule 92, the Secretary General must print every report of a Select Committee. The report together with the Bill proposed by the Select Committee has to be published in the Gazette. The rules contemplate the procedure to be C followed in the Rajya Sabha for debating and discussing the report and for considering amendments, leading up to the eventual passage of the Bill. In a manner similar to reference of Bills originating in the Rajya Sabha to Select Committees, Bills which are transmitted from the Lok Sabha to the Rajya Sabha may be referred to a Select Committee under D Rule 125, if a motion for that purpose is carried.

24Copy pinpoint24. Chapter XXII of the Rules contains provisions in regard to Department related Parliamentary Standing Committees. Rule 268 stipulates that there shall be Parliamentary Standing Committees related to Ministries/Departments. The Third schedule elucidates the name of each Committee and the Ministries/Departments which fall within its E purview. Under Rule 269, each such Committee is to consist of not more than 31 members: 10 to be nominated by the Chairperson from the Members of the Rajya Sabha and 21 to be nominated by the Speaker from the Members of the Lok Sabha. Rule 270 specifies the functions of the Standing Committees: F “270. Functions Each of the Standing Committees shall have the following functions, namely:- (a) to consider the Demands for Grants of the related Ministries/ G Departments and report thereon. The report shall not suggest anything of the nature of cut motions; (b) to examine Bills, pertaining to the related Ministries/ Departments, referred to the Committee by the Chairman or the Speaker, as the case may be, and report thereon; H

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A (c) to consider the annual reports of the Ministries/Departments and report thereon; and (d) to consider national basic long-term policy documents presented to the Houses, if referred to the Committee by the Chairman or the Speaker, as the case may be, and report thereon: B Provided that the Standing Committees shall not consider matters of day-to-day administration of the related Ministries/ Departments.” Rule 274 envisages that the report of the Standing Committee “shall be based on broad consensus” though a member may record a C dissent. The report of the Committee is presented to the Houses of Parliament. Under Rule 275, provisions applicable to Select Committees on Bills apply mutatis mutandis to the Standing Committees. Rule 277 indicates that the report of a Standing Committee is to have persuasive value and is treated as advice to the House: D “277. Reports to have persuasive value The report of a Standing Committee shall have persuasive value and shall be treated as considered advice given by the Committee.” Department related Parliamentary Standing Committees are Committees of the Houses of Parliament. The Committees can regulate E their procedure for requiring the attendance of persons and for the production of documents. The Committees can hear experts or special interests. These Committees ensure parliamentary oversight of the work of the ministries/departments of government. As a part of that function, each Committee considers demands for grants, examines Bills F which are referred to it, considers the annual reports of the ministry/ department and submits reports on national long-term policy documents, when they have been referred for consideration. The reports of these Committees are published and presented to the Houses of Parliament. They have a persuasive value and are advice given by the Committee to Parliament. G

25Copy pinpoint25. Besides the Department related Standing Committees, there is a General Purposes Committee (Chapter XXIII) whose function is to consider and advise on matters governing the affairs of the House, referred by the Chairperson. Chapter XXIV provides for the constitution of a Committee on Ethics to oversee H

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“the moral and ethical conduct” of members, prepare a code of conduct, examine cases of alleged breach and to tender advise to members on questions involving ethical standards. E Parliamentary privilege E.1 UK Decisions

26Copy pinpoint26. In the UK, a body of law has evolved around the immunity which is afforded to conduct within or in relation to statements made to Parliament against civil or criminal liability in a court of law. The common law also affords protection against the validity of a report of a Select Committee being challenged in a court.

27Copy pinpoint27. Article 9 of the Bill of Rights, 1689 declares that: C “..That the freedom of speech and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament…” Construed strictly, the expression “out of Parliament” will effectively squelch any discussion of the proceedings of Parliament, D outside it. This would compromise to the need for debate and discussion on matters of governance in a democracy. Hence, there has been an effort to bring a sense of balance: a balance which will ensure free speech within Parliament but will allow a free expression of views among citizens. Both are essential to the health of democracy. E Article 9 has provided the foundation for a line of judicial precedent in the English Courts. In 1884, the principle was formulated In Bradlaugh v Gossett12: “The House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the Statute F law which has relation to its internal procedure only. What is said or done within its walls cannot be inquired into a court of law. A resolution of the House of Commons cannot change the law of the land. But a court of law has no right to inquire into the propriety of a resolution of the House restraining a member from doing within the walls of the House itself something which by the general G law of the land he had a right to do.” In Dingle v Associated Newspapers Ltd 13 , the above formulation was held to constitute “a clear affirmation of the exclusive 12 (1884) 12 Q.B.D. 271 13 (1960) 2 Q.B. 405 H

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A right of Parliament to regulate its own internal proceedings”. Applying that principle, the Queen’s Bench Division ruled that the report of a Select Committee of the House of Commons could not be impugned outside Parliament. This principle was applied in Church of Scientology of California v Johnson-Smith14, when an action for libel was brought against a Member of Parliament for a statement made during the course of a television interview. In order to refute the defendants’ plea of fair comment, the plaintiff sought to prove malice by leading evidence of what had taken place in Parliament. Rejecting such an attempt, the court adverted to the following statement of principle in Blackstone: “The whole of the law and custom of Parliament has its origin from this one maxim, “that whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.” Reiterating that principle, the court held:

D “…what is said or done in the House in the course of any proceedings there cannot be examined outside Parliament for the purpose of supporting a cause of action even though the cause of action itself arises out of something done outside the House.” The decision involved a libel action brought against a Member of E Parliament for a statement made outside. The court rejected an attempt to rely upon what was stated in Parliament to establish a case of malice against the defendant.

28Copy pinpoint28. In Pepper(Inspector of Taxes) v Hart15, Lord Browne- Wilkinson held for the House of Lords that there was a valid reason to relax the conventional rule of exclusion under which reference to F Parliamentary material, as an aid to statutory construction, was not permissible. The learned Law Lord held: “In my judgment, subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is G ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly 14 (1972) 1 Q.B. 522 15 (1992) 3 W.L.R. 1032 H

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discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words.” Holding that such a relaxation would not involve the court criticizing what has been said in Parliament since the court was only giving effect to the words used by the Minister, the court held that the exclusionary rule should be relaxed to permit reference to Parliamentary materials where: “(a) legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied upon consists of one or more statements by a Minister or other promoter of the Bill together if necessary with such other Parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied upon are clear.”

29Copy pinpoint29. The decision of the Privy Council in Richard William Prebble v Television New Zealand (“Prebble”)16 arose from a case where, in a television programme transmitted by the defendant, allegations were levelled against the Government of New Zealand, involving the sale of state owned assets to the private sector while the plaintiff was the Minister of the department. In his justification, the defendant alleged that the plaintiff had made statements in the House calculated to mislead. Lord Browne-Wilkinson held that the defendant was precluded from questioning a statement made by the plaintiff before the House of E Parliament. The principle was formulated thus: “In addition to article 9 itself, there is a long line of authority which supports a wider principle, of which article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognize their respective constitutional roles. So far as the F courts are concerned they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges: Burdett v. Abbot (1811) 14 East 1; Stockdale v. Hansard (1839) 9 Ad. & EI. 1; Bradlaugh v. Gossett (1884) 12 G Q.B.D. 271; Pickin v. British Railways Board (1974) A.C. 765; Pepper v. Hart (1993) A.C. 593. As Blackstone said in his Commentaries on the Laws of England, 17th ed. (1830), vol. 1, p.163: 16 (1994) 3 W.L.R. 970 H

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was the privilege of the House as a whole and not of the individual A Member in his or her own right, although an individual Member could assert and rely on it.” The waiver provision was deleted on the ground that the privilege belongs to the House and not to an individual member. The impact of the provisions of Section 13 of the Defamation Act, 1996 was dealt with in a 2011 decision of the House of Lords in B Hamilton v AI Fayed (“Hamilton”)18. The defendant had alleged that as a Member of Parliament, the plaintiff had accepted cash from him for asking questions on his behalf in the House of Commons. The plaintiff commenced an action for defamation against the defendant, waiving his parliamentary privileges pursuant to Section 13 of the Defamation Act,

1996. Lord Browne-Wilkinson dwelt on parliamentary privileges, which prohibit the court from questioning whether a witness before Parliament had misled it. The House of Lords held that any attempt to cross-examine the defendant to the effect that he had lied to a Parliamentary committee when he had stated that he had paid money for questions would have infringed parliamentary privileges. However, under Section 13, the plaintiff could waive his own protection from Parliamentary privilege. The consequence was thus: “The privileges of the House are just that. They all belong to the House and not to the individual. They exist to enable the House to perform its functions. Thus section 13(1) accurately refers, not to the privileges of the individual MP, but to “the protection of any enactment or rule of law” which prevents the questioning of procedures in Parliament. The individual MP enjoys the protection of parliamentary privileges. If he waives such protection, then under section 13(2) any questioning of parliamentary proceedings (even by challenging “findings…made about his conduct”) is not to be treated as a breach of the privileges of Parliament.” The effect of Section 13 was that if a Member of Parliament waived the protection, an assail of proceedings before Parliament would not be regarded as a breach of privilege. G

30Copy pinpoint30. The decision in Hamilton is significant for explaining precisely the relationship between parliamentary privilege and proceedings in a Court which seek to challenge the truth or propriety of anything done in parliamentary proceedings. As the Court holds: 18 (2001) 1 A.C. 395 H

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A “The normal impact of parliamentary privilege is to prevent the court from entertaining any evidence, cross-examination or submissions which challenge the veracity or propriety of anything done in the course of parliamentary proceedings. Thus, it is not permissible to challenge by cross-examination in a later action the veracity of evidence given to a parliamentary committee.” B But for the provisions of Section 13, evidence by Hamilton that he had not received money for questions would come into conflict with the evidence tendered by AI Fayed which was accepted by the Parliamentary Committees. Hence it would have been impermissible to cross-examine Al Fayedto the effect that he had falsely stated before the Parliamentary Committees that he had paid money for questions. Such a consequence was obviated by the waiver provisions of Section 13.

31Copy pinpoint31. In Toussaint v Attorney General of Saint Vincent and the Grenadines (“Toussaint”)19, the Privy Council dealt with a case where a claim was brought against the government by an individual claiming that the acquisition of his land was unlawful. In support, he referred to a speech of the Prime Minister in Parliament and a transcript taken from the video-tape of a televised debate. The submission was that the true reason for the acquisition of the land, as evident from the speech of the Prime Minister, was political. Adverting to Prebble, Lord E Mance, speaking for the Privy Council, noted that there were three principles involved: the need to ensure the free exercise of powers by the legislature on behalf of the electors; the need to protect the interest of justice; and the interest of justice in ensuring that all relevant evidence is available to the courts. The Privy Council held that it was permissible to rely upon the speech of the Prime Minister though the attempt was to demonstrate an improper exercise of power for extraneous purposes. As Lord Mance observed: “In such cases, the minister’s statement is relied upon to explain the conduct occurring outside Parliament, and the policy and motivation leading to it. This is unobjectionable although the aim and effect is to show that such conduct involved the improper exercise of a power “for an alien purpose or in a wholly unreasonable manner”: Pepper v Hart, per Lord Browne- Wilkinson at p 639 A. The Joint Committee expressed the view that Parliament should welcome this development, on the basis 19 H (2007) 1 W.L.R. 2825

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that “Both parliamentary scrutiny and judicial review have important roles, separate and distinct, in a modern democratic society” (para 50) and on the basis that “The contrary view would have bizarre consequences”, hampering challenges to the “legality of executive decisions… by ring-fencing what ministers said in Parliament, and making “ministerial decisions announced in Parliament…less readily open to examination than other ministerial decisions”: para

51. The Joint Committee observed, pertinently, that “That would be an ironic consequence of article 9. Intended to protect the integrity of the legislature from the executive and the courts, article 9 would become a source of protection of the executive from the courts.”” C

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

32Copy pinpoint32. Toussaint is an important stage in the development of the law. A statement made in Parliament by a Minister could be relied upon, not just to explain the history of a law. Where there is a challenge to the exercise of governmental authority on the ground that it is actuated by extraneous reasons, a statement by a Minister in Parliament could be used in court in regard to conduct outside Parliament. The challenge is not to a statement made in Parliament but to governmental action outside. The statement would be relevant to question an abuse of power by government.

33Copy pinpoint33. In Regina (Bradley and Others) v Secretary of State for Work and Pensions (Attorney General intervening)20,the Court of Appeal visited the statement in Prebble that Section 16(3) of the Parliamentary Privileges Act, 1987 in Australia declared the true effect of Article 9 of the Bill of Rights and that Section 16(3) contained “the true principle to be applied” in the case. Holding that the dictum in Prebble appears to be too wide, it was held: “…But paragraph (c), if read literally, is extremely wide. It would seem to rule out reliance on or a challenge to a ministerial statement itself on judicial review of the decision embodied in that statement (which was permitted in R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, and to which no objection has been raised in the present case), or to resolve an ambiguity in 20 (2007) EWHC 242 (Admin) H

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A legislation (Pepper v Hart [1993] AC 593), or to assist in establishing the policy objectives of an enactment (Wilson v First County Trust Ltd (No 2)[2004] 1 AC 816). It would also prohibit reliance on report of the Joint Committee on Human Rights, which, as Mr Lewis’s submissions rightly state, have been cited in a number of appellate cases in this jurisdiction: a very recent example is R v F B [2007] QB 960 para 11. As Lord Nicholls of Birkenhead observed in Wilson’s case [2004] 1 AC 816, para 60: “there are occasions when courts may properly have regard to ministerial and other statements made in Parliament without in any way ‘questioning’ what has been said in Parliament, C without giving rise to difficulties inherent in treating such statements as indicative of the will of Parliament, and without in any other way encroaching upon parliamentary privilege by interfering in matters properly for consideration and regulation by Parliament alone.” D I therefore do not treat the text of paragraph(c) of the Australian statute as being a rule of English law.” The report of a Select Committee, it was observed, is a written document published after a draft report has been placed before and approved by the Committee. Hence, it was unlikely that the use of such E a report in the submissions of a party in civil litigation would have inhibited the Committee from expressing its view. The freedom of speech in Parliament principle would not be affected, since there would be no inhibition of that freedom.

34Copy pinpoint34. The decision of the Administrative Court in the UK in Office F of Government Commerce v Information Commissioner (Attorney General intervening)21 involved a case where a department of government had carried out reviews into an identity card programme. The case involved a claim for the disclosure of information. The Court observed that the law of parliamentary privilege is based on two principles: G the need for free speech in Parliament and separation of powers between the legislature and the judiciary: “...the law of parliamentary privilege is essentially based on two principles. The first is the need to avoid any risk of interference with free speech in Parliament. The second is the principle of the H 21 (2009) 3 W.L.R. 627

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separation of powers, which in our constitution is restricted to the judicial function of government and requires the executive and the legislature to abstain from interference with the judicial function, and conversely requires the judiciary not to interfere with or to criticise the proceedings of the legislature. These basic principles lead to the requirement of mutual respect by the courts for the proceedings and decisions of the legislature and by the legislature (and the executive) for the proceedings and decisions of the courts. Conflicts between Parliament and the courts are to be avoided. The above principles lead to the conclusion that the courts cannot consider allegations of impropriety or inadequacy or lack of accuracy in the proceedings of Parliament. Such allegations are for Parliament to address, if it thinks fit, and if an allegation is well founded any sanction is for Parliament to determine. The proceedings of Parliament include parliamentary questions and answers. These are not matters for the courts to consider.” Yet, the Court also noticed the limitation of the above principles, when proceedings in Parliament are relied upon simply as relevant historical facts or to determine whether the legislation is incompatible with the European Convention for the Protection of Human Rights which was embodied in the Human Rights Act 1998 (“HRA”) in the UK. In that context the Court observed: E “However, it is also important to recognise the limitations of these principles. There is no reason why the courts should not receive evidence of the proceedings of Parliament when they are simply relevant historical facts or events; no “questioning” arises in such a case… Similarly, it is of the essence of the judicial function that F the courts should determine issues of law arising from legislation and delegated legislation. Thus, there can be no suggestion of a breach of parliamentary privilege if the courts decide that legislation is incompatible with the European Convention for the Protection of Human Rights and Fundamental Freedoms: by enacting the Human Rights Act 1998…” G The Court held that the conclusions of the report of a Committee that had led to legislation could well be relied upon since the purpose of the reference is either historical or made with a view to ascertaining the mischief at which the legislation was aimed. If the evidence given to a H

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A Committee is uncontentious – the parties being in agreement that it is true and accurate - there could be no objection to it being taken into account. What the Tribunal could not do was to refer to contentious evidence given to a Parliamentary Committee or the finding of the Committee on an issue which the Tribunal had to determine.

35Copy pinpoint35. The decision indicates a calibrated approach to Parliamentary privilege consistent with the enactment of the HRA. The doctrine of incompatibility envisages a role for courts in the UK to assess the consistency of the provisions of law with reference to the standards of the European Convention. Parliamentary supremacy does not allow the court to strike down legislation. Yet the emergence of standards under C the HRA has allowed for a distinct adjudicatory role: to determine the compatibility of domestic law with reference to European Convention standards, adopted by the HRA. To hold that this has not altered the role of courts vis-à-vis Parliamentary legislation would be to miss a significant constitutional development. D Wheeler v The Office of the Prime Minister22 was a case where there was a challenge to a decision brought by the government to give notice of the intention of the UK to participate in the Council Framework Decision on the European arrest warrants. It was claimed that the government was precluded from issuing a notification of its intention without holding a referendum. Holding that the plea would breach Parliamentary privilege the Court held: “…In substance, however, the claim is that, unless the House of Commons organises its business in a particular way, and arranges for a vote in a particular form, the courts must intervene and either grant a declaration or issue an order prohibiting the government from taking certain steps unless and until there is such a vote. In my judgment, that would involve the courts impermissibly straying from the legal into the political realm.” The plea, the Court ruled, would amount to the Court questioning things done in Parliament and instead of facilitating the role of Parliament, the Court would be usurping it. In Wilson v First County Trust Ltd 23 the House of Lords observed that the Human Rights Act 1998 had obligated the Court to 22 (2014) EWHC 3815 (Admin) 23 H (2004) 1 AC 816

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exercise a new role in respect of primary legislation. Courts were required to evaluate the effect of domestic legislation upon rights conferred by the European Convention and where necessary; to make a declaration of incompatibility. While doing so, the Court would primarily construe the legislation in question. Yet, the practical effect of a statutory provision may require the court to look outside the statute. The court would be justified in looking at additional background information to understand the practical impact of a statutory measure on a Convention right and decide upon the proportionality of a statutory provision. In that context, the Court held: “This additional background material may be found in published documents, such as a government white paper. If relevant information is provided by a minister or, indeed, any other member of either House in the course of a debate on a Bill, the courts must also be able to take this into account. The courts, similarly, must be able to have regard to information contained in explanatory notes prepared by the relevant government department and published with a Bill. The courts would be failing in the due discharge of the new role assigned to them by Parliament if they were to exclude from consideration relevant background information whose only source was a ministerial statement in Parliament or an explanatory note prepared by his department while the Bill was proceeding through Parliament. By having regard to such material, the court would not be “questioning” proceedings in Parliament or intruding improperly into the legislative process or ascribing to Parliament the views expressed by a minister. The court would merely be placing itself in a better position to understand the legislation. F To that limited extent there may be occasion for the courts, when conducting the statutory “compatibility” exercise, to have regard to matters stated in Parliament. It is a consequence flowing from the Human Rights Act. The constitutionally unexceptionable nature of this consequence receives some confirmation from the view G expressed in the unanimous report of the parliamentary Joint Committee on Parliamentary Privilege (1999) (HL Paper 43-I, HC 214-I), p 28, para 86, that it is difficult to see how there could be any objection to the court taking account of something said in Parliament when there is no suggestion the statement was inspired H

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A by improper motives or was untrue or misleading and there is no question of legal liability.” Recourse to such background information would enable the court to better understand the law and would not amount to a breach of parliamentary privilege.

36Copy pinpoint36. The decision of the Privy Council in Owen Robert Jennings v Roger Edward WyndhamBuchanan24 arose from the Court of Appeal in New Zealand. The judgment recognises that while the protection conferred by Article 9 of the Bill of Rights should not be whittled away, yet as the Joint Committee on Parliamentary privileges (Chaired by Lord C Nicholls of Birkenhead) observed, freedom to discuss parliamentary proceedings is necessary in a democracy: “Freedom for the public and the media to discuss parliamentary proceedings outside Parliament is as essential to a healthy democracy as the freedom of members to discuss what they choose within Parliament.” Media reporting of Parliamentary proceedings, the Court held, has been an important instrument of public debate. Hence the freedom of the Members of Parliament to discuss freely within its portals must be weighed with the freedom of the public to discuss and debate matters of concern to them: “As it is, parliamentary proceedings are televised and recorded. They are transcribed in Hansard. They are reported in the press, sometimes less fully than parliamentarians would wish. They form a staple of current affairs and news programmes on the radio and television. They inform and stimulate public debate. All this is highly desirable, since the legislature is representative of the whole nation. Thus, as the Joint Committee observed in its executive summary (page 1): “This legal immunity is comprehensive and absolute. Article 9 should therefore be confined to activities justifying such a high degree of protection, and its boundaries should be clear.”” These observations reflect a concern to define the boundaries of the immunities under Article 9 in clear terms. While recognizing the absolute nature of the immunity, its boundaries must “be confined to 24 (2004) UKPC 36 H

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activities justifying such a high degree of protection”. The right of A Members of Parliament to speak their minds in Parliament without incurring a liability is absolute. However, that right is not infringed if a member, having spoken and in so doing defamed another person, thereafter chooses to repeat his statement outside Parliament. In such circumstances, the privilege may be qualified. While it is necessary that B the legislature and the courts do not intrude into the spheres reserved to the other, a reference to Parliamentary records to prove that certain words were in fact uttered is not prohibited. “In a case such as the present, however, reference is made to the parliamentary record only to prove the historical fact that certain words were uttered. The claim is founded on the later extra- C parliamentary statement. The propriety of the member’s behaviour as a parliamentarian will not be in issue. Nor will his state of mind, motive or intention when saying what he did in Parliament.”

37Copy pinpoint37. The evolution of the law in the UK indicates the manner in which the protection under Article 9 of the Bill of Rights has been transformed. There are essentially three principles which underlie the debate. The first is the importance of the freedom of speech in Parliament. The absolute protection which is afforded to what is done or spoken by a Member of Parliament in Parliament is an emanation of the need to protect freedom of speech in Parliament. The second principle which is at work is the separation of powers between Parliament and the courts. This principle recognizes that liability for a falsehood spoken in Parliament lies within the exclusive control of Parliament. A Member of Parliament cannot be held to account in a court of law for anything which is said or spoken in Parliament. A speech in Parliament would not attract either a civil or criminal liability enforceable in a court of law. The third principle emphasises that debates in Parliament have a public element. Public debate is the essence of and a barometer to the health of democracy. Though the privilege which attaches to a speech in Parliament is absolute, the immunity extends to those activities within Parliament, which justify a high degree of protection. As Parliamentary proceedings have come to be widely reported, published and televised, the common law has come to recognize that a mere reference to or production of a record of what has been stated in Parliament does not infringe Article 9 of the Bill of Rights. In other words, a reference to Parliamentary record to prove a historical fact that certain words were spoken is not prohibited. What is impermissible is to question the truthfulness or veracity of what was H

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A stated before Parliament in any forum including a court, outside Parliament. Nor can a Member of Parliament be cross-examined in a proceeding before the court with reference to what was stated in Parliament. The validity of an Act of Parliament or of the proceedings of a Parliamentary Committee cannot be questioned in a court in the UK. The enactment of the Human Rights Act has led to a recognition that in testing whether a statutory provision is incompatible with a Convention right, it may become necessary for the court to adjudge the practical effects of a law. To do so, the court may legitimately have reference to background material which elucidates the rationale for the law, the social purpose which it has sought to achieve and the proportionality of its imposition. In order to understand the facets of the law which bear upon rights protected under the European Convention, the court may justifiably seek recourse to statements of ministers, policy documents and white papers to find meaning in the words of the statute. The law in the UK has hence developed to recognize that free speech in Parliament and separation of powers must be placed in a scale of interpretation that is cognizant of the need to protect the democratic rights of citizens. E.2 India

38Copy pinpoint38. The law in India has witnessed a marked degree of evolution. E Indian jurisprudence on the subject has recognized the importance of the freedom of speech in Parliament, the principle of separation of powers and the concomitant protection afforded to members from being held liable for what is spoken in Parliament. Principles grounded in the common law in the UK have not remained just in the realm of common law. The Constitution, in recognizing many of those principles imparts sanctity to F them in a manner which only the text of a fundamental written charter for governance can provide. Separation of powers is part of the basic structure. Our precedent on the subject notices the qualitative difference between Parliamentary democracy in the UK and in India. The fundamental difference arises from the supremacy of the Indian G Constitution which subjects all constitutional authorities to the mandate of a written Constitution.

39Copy pinpoint39. The locus classicus on the subject of parliamentary privileges is the seven-judge Bench decision in Re: Powers, Privileges and Immunities of State Legislatures25. It was argued before this Court 25 Special Reference No. 1 of 1964: (1965) 1 SCR 413 H

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that the privilege of the House to construe Article 194(3) and to determine A the width of the privileges, powers and immunities enables the House to determine questions relating to the existence and extent of its powers and privileges, unfettered by the views of the Supreme Court. Chief Justice Gajendragadkar, held that it was necessary to determine whether even in the matter of privileges, the Constitution confers on the House a B sole and exclusive jurisdiction. The decision recognizes that while in the UK, Parliament is sovereign, the Indian Constitution creates a federal structure and the supremacy of the Constitution is fundamental to preserving the delicate balance of power between constituent units: “38. …it is necessary to bear in mind one fundamental feature of a federal constitution. In England, Parliament is sovereign; and in the words of Dicey, the three distinguishing features of the principle of Parliamentary Sovereignty are that Parliament has the right to make or unmake any law whatever; that no person or body is recognized by the law of England as having a right to override or set aside the legislation of Parliament, and that the right or power of Parliament extends to every part of the Queen’s dominions. On the other hand, the essential characteristic of federalism is “the distribution of limited executive, legislative and judicial authority among bodies which are co-ordinate with and independent of each other”. The supremacy of the Constitution is fundamental to the existence of a federal State in order to prevent either the legislatures of the federal unit or those of the member States from destroying or impairing that delicate balance of power which satisfied the particular requirements of States which are desirous of union, but not prepared to merge their individuality in a unity. This supremacy of the constitution is protected by the authority of an independent judicial body to act as the interpreter of a scheme of distribution of powers. Nor is any change possible in the constitution by the ordinary process of federal or State legislation. Thus the dominant characteristic of the British Constitution cannot be claimed by a federal constitution like ours”. G While the legislatures in our country have plenary powers, they function within the limits of a written Constitution. As a result, the sovereignty which Parliament can claim in the UK cannot be claimed by any legislature in India “in the literal absolute sense”.

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40Copy pinpoint40. The immunity conferred on Members of Parliament from liability to “any proceedings in any court in respect of anything said or any vote given by him in Parliament” (Article 105(2)) was deliberated upon in a judgment of the Constitution Bench in P V Narasimha Rao v State (CBI/SPE)26. Justice G N Ray agreed with the view of Justice S P Bharucha on the scope of the immunity under clauses (2) and (3) of B Article 105. The judgment of Justice Bharucha (for himself and Justice S Rajendra Babu) thus represents the view of the majority. The minority view was of Justices S C Agrawal and Dr A S Anand. In construing the scope of the immunity conferred by Article 105(2), Justice Bharucha adverted to judgments delivered by courts in the United Kingdom (including those of the Privy Council noted earlier27). Interpreting Article 105(2), Justice Bharucha observed thus: “133. Broadly interpreted, as we think it should be, Article 105(2) protects a Member of Parliament against proceedings in court that relate to, or concern, or have a connection or nexus with anything said, or a vote given, by him in Parliament.” In that case, the charge in a criminal prosecution for offences under Section 120B of the Penal Code and the Prevention of Corruption Act, 1988 was that there was a criminal conspiracy between alleged bribe givers and bribe takers (who were members of the legislature) to defeat a motion of no confidence by obtaining illegal gratification in pursuance of which bribes were given and accepted. The charge did not refer to the votes that the alleged bribe takers had actually cast upon the no confidence motion. Nevertheless, the majority held that the expression “in respect of” in Article 105(2) must perceive a ‘broad meaning’. The alleged conspiracy and agreement had nexus in respect of those votes, and the proposed inquiry in the criminal proceedings was in regard to its motivation. The submission of the Attorney General for India that the protection under Article 105(2) is limited to court proceedings and to a speech that is given or a vote that is cast was not accepted by the Constitution Bench for the following reasons: G “136. It is difficult to agree with the learned Attorney General that though the words “in respect of” must receive a broad meaning, the protection under Article 105(2) is limited to court 26 (1998) 4 SCC 626 27 Bradlaugh v Gosset: (1884) 12 QBD 271: 53 LJQB 290; Prebble v Television New H Zealand Ltd: (1994) 3 AII ER 407, PC; R v Currie: (1992)

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proceedings that impugn the speech that is given or the vote that is cast or arises thereout or that the object of the protection would be fully satisfied thereby. The object of the protection is to enable Members to speak their mind in Parliament and vote in the same way, freed of the fear of being made answerable on that account in a court of law. It is not enough that Members should be protected against civil action and criminal proceedings, the cause of action of which is their speech or their vote. To enable Members to participate fearlessly in parliamentary debates, Members need the wider protection of immunity against all civil and criminal proceedings that bear a nexus to their speech or vote. It is for that reason that a Member is not “liable to any proceedings in any court in respect of anything said or any vote given by him”. Article 105(2) does not say, which it would have if the learned Attorney General were right, that a Member is not liable for what he has said or how he has voted. While imputing no such motive to the present prosecution, it is not difficult to envisage a Member who has made a speech or cast a vote that is not to the liking of the powers that be being troubled by a prosecution alleging that he had been party to an agreement and conspiracy to achieve a certain result in Parliament and had been paid a bribe.”28 The view of the minority was that the offence of bribery is made out against a bribe taker either upon taking or agreeing to take money for a promise to act in a certain manner. Following this logic, Justice SC Agrawal held that the criminal liability of a Member of Parliament who accepts a bribe for speaking or giving a vote in Parliament arises independent of the making of the speech or the giving of the vote and hence is not a liability “in respect of anything said or any vote given” in F Parliament. The correctness of the view in the judgment of the majority does not fall for consideration in the present case. Should it become necessary in an appropriate case in future, a larger bench may have to consider the issue.

41Copy pinpoint41. The judgment of the Constitution Bench in Raja Ram Pal v G Hon’ble Speaker, Lok Sabha29, has a significant bearing on the issues which arise in the present reference. Chief Justice YK Sabharwal, delivering the leading opinion on behalf of three judges dealt with the 28 Id, at pages 729-730 29 (2007) 3 SCC 184 H

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A ambit of Article 105 in relation to the expulsion of a member and the extent to which such a decision of the Houses of Parliament is amenable to judicial review. The judgment notices that “parliamentary democracy in India is qualitatively distinct” from the UK. In defining the nature and extent of judicial review in such cases, Chief Justice Sabharwal observed that it is the jurisdiction of the court to examine whether a particular privilege claimed by the legislature is actually available to it: “62. In view of the above clear enunciation of law by Constitution Benches of this Court in case after case, there ought not be any doubt left that whenever Parliament, or for that matter any State Legislature, claims any power or privilege in terms of the provisions contained in Article 105(3), or Article 194(3), as the case may be, it is the Court which has the authority and the jurisdiction to examine, on grievance being brought before it, to find out if the particular power or privilege that has been claimed or asserted by the legislature is one that was contemplated by the said constitutional provisions or, to put it simply, if it was such a power or privilege as can be said to have been vested in the House of Commons of the Parliament of the United Kingdom as on the date of commencement of the Constitution of India so as to become available to the Indian Legislatures.”30 E While Parliament has the power to expel a member for a contempt committed, the doctrine of “exclusive cognizance” adopted in the UK has no application in India which is governed by a written Constitution. Though Parliament is possessed of a plentitude of powers, it is subject to terms of legislative competence and to the restrictions imposed by fundamental rights. Article 21 is attracted when the liberty of a Member F of Parliament is threatened by imprisonment in execution of a parliamentary privilege. Fundamental rights can be invoked both by a member and by a non-member when faced by the exercise of parliamentary privilege. Drawing the distinction between the UK and India, Chief Justice Sabharwal observed: G “363. That the English cases laying down the principle of exclusive cognizance of Parliament, including Bradlaugh [(1884) 12 QBD 271: 53 LJQB 290: 50 LT 620], arise out of a jurisdiction controlled by the constitutional principle of sovereignty of Parliament cannot 30 Id, at page 259 H

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A Among the conclusions in the judgment, of relevance to the present case, are the following: “431. …(k) There is no basis to the claim of bar of exclusive cognizance or absolute immunity to the parliamentary proceedings in Article 105(3) of the Constitution; B (l) The manner of enforcement of privilege by the legislature can result in judicial scrutiny, though subject to the restrictions contained in the other constitutional provisions, for example Article 122 or 212; and (m) Article 122(1) and Article 212(1) displace the broad doctrine C of exclusive cognizance of the legislature in England of exclusive cognizance of internal proceedings of the House rendering irrelevant the case-law that emanated from courts in that jurisdiction; inasmuch as the same has no application to the system of governance provided by the Constitution of India;.”33

42Copy pinpoint42. The decision in Raja Ram Pal has been adverted to in the subsequent judgment of the Constitution Bench in Amarinder Singh v Special Committee, Punjab Vidhan Sabha 34. Chief Justice Balakrishnan, speaking for the Constitution Bench, held that all the privileges which have been claimed by the House of Commons cannot be claimed automatically by legislative bodies in India. Legislatures in India do not have the power of self-composition which is available to the House of Commons. Indian legislatures are governed by a written Constitution.

43Copy pinpoint43. The limits of comparative law must weigh in the analysis in this area of constitutional law, when the Court is confronted by a copious attempt, during the course of submissions, to find meaning in the nature and extent of parliamentary privilege in India from decided cases in the UK. The fundamental difference between the two systems lies in the fact that parliamentary sovereignty in the Westminster form of government in the UK has given way, in the Indian Constitution, to constitutional supremacy. Constitutional supremacy mandates that every institution of governance is subject to the norms embodied in the constitutional text. The Constitution does not allow for the existence of absolute power in the institutions which it creates. Judicial review as a 33 Id, at page 372 34 (2010) 6 SCC 113 H

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part of the basic features of the Constitution is intended to ensure that every institution acts within its bounds and limits. The fundamental rights guaranteed to citizens are an assurance of liberty and a recognition of the autonomy which inheres in every person. Hence, judicial scrutiny of the exercise of parliamentary privileges is not excluded where a fundamental right is violated or a gross illegality occurs. In recognizing the position of Parliament as a coordinate institution created by the Constitution, judicial review acknowledges that Parliament can decide the expediency of asserting its privileges in a given case. The Court will not supplant such an assertion or intercede merely on the basis of an irregularity of procedure. But where a violation of a constitutional prescription is shown, judicial review cannot be ousted. C F Separation of powers: a nuanced modern doctrine

44Copy pinpoint44. The submission of the Attorney General is that the carefully structured dividing lines between the judicial, executive and legislative wings of the state would be obliterated if the court were to scrutinize or judicially review reports of parliamentary committees. The principle of separation, it has been submitted, interdicts the courts from scrutinizing or reviewing reports of parliamentary committees. Judicial review may well result in a conflict between the two institutions of the State and is hence – according to the submission – best eschewed.

45Copy pinpoint45. Separation of powers between the legislature, the executive and the judiciary covers a large swathe of constitutional history spanning the writings of Montesquieu and Blackstone, to the work of Dicey and Jennings. Gerangelos (2009) laments that in the UK, parliamentary sovereignty has prevented the principle of separation from emerging as a judicially enforceable standard35: F “Britain’s unwritten constitution and the influence of Diceyan orthodoxy, emphasising parliamentary sovereignty and a fusion of powers which did not countenance judicial invalidation of legislative action, has meant that the separation of powers has not become a source of judicially-enforceable constitutional limitations. The G precise status of the doctrine has varied from time to time and the extent to which the doctrine nevertheless provides some restraint on legislative interference with judicial process cannot be determined with precision. It can be said, however, that 35 Peter A Gerangelos, THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIAL P ROCESS, CONSTITUTIONAL PRINCIPLES AND LIMITATIONS (Hart Publishing, 2009). H

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A constitutional entrenchment of the separation doctrine has not been part of the Westminster constitution tradition; a tradition which has not, in any event, placed much store by written constitutions with their accompanying legalism and rigidities. The prevailing influence from that quarter has been the maintenance of judicial independence in terms of institutional independence through the protection of tenure and remuneration, and afforded statutory protection in the Act of Settlement in 1701, as opposed to the protection of judicial power in a functional sense.” The impact of the doctrine is seen best in terms of the institutional independence of the judiciary from other organs of the state. The doctrine is stated to have been overshadowed in the UK “by the more dominant constitutional principles of parliamentary sovereignty and the rule of law”. For instance, in the UK, Ministers of Crown are both part of the executive and members of the Parliament. Until the Constitutional Reform Act, 2005 the Lord Chancellor was a member of the Cabinet and was eligible to sit as a judge in the Appellate Committee of the House of Lords. The Judicial Committee of the House of Lords was the highest court, even though the House constituted the Upper House of the legislature. In the enforcement of parliamentary privileges, the House exercises judicial functions. Delegated legislation enables the executive to exercise legislative functions. E

46Copy pinpoint46. Many contemporary scholars have differed on the normative importance of the doctrine of separation. One view is that while a distinct legislature, executive and judiciary can be identified as a matter of practice, this is not a mandate of the unwritten Constitution. The statement that there is a separation is construed to be descriptive and not F normative36. On the other hand, other scholars regard the doctrine as “a fundamental underlying constitutional principle which informs the whole British constitutional structure”37. Yet, even scholars who emphasise the importance of the separation of powers in the UK acknowledge that the 36 See A Tomkins, PUBLIC LAW (Oxford University Press, 2003) 37 (as cited by Gerangelos G at page 274). 37 E Barendt, ‘Separating of Powers and Constitutional Government’ [1995] Public Law 599 at 599-60, C Munro, Studies in Constitutional Law, 2 nd edn (London, Butterworths, 1999) at 304, TRS Allan, Law Liberty and Justice, The Legal Foundations of British Constitutionalism (Oxford, Clarendon Press, 1993) chs 3 and 8, and TRS Allan, Constitutional Justice, A Liberal Theory of the Rule of Law (Oxford, Oxford H University Press, 2001)

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Constitution does not strictly observe such a separation. Courts in the A UK do not possess a direct power of judicial review to invalidate legislation though, with the enactment of the Human Rights Act, the doctrine of incompatibility has become an entrenched feature of the law. Gerangelos (supra) states that “the most that can be said is that the separation of powers does play an influential role as a constitutional principle, but as a non-binding one”.38 He cites Professor Robert Stevens39: “In modern Britain the concept of the separation of powers is cloudy and the notion of the independence of the judiciary remains primarily a term of constitutional rhetoric. Certainly its penumbra, and perhaps even its core, are vague. No general theory exists, although practically the English have developed surprisingly effective informal systems for the separation of powers; although it should never be forgotten that the system of responsible government is based on a co-mingling of the executive with the legislature. The political culture of the United Kingdom, however, provides protections for the independence of the judiciary, which are missing in law.” The importance of the principle of separation essentially lies in the independence of the judiciary. The protections in the Act of Settlement 1701 have now been reinforced in the Constitutional Reform Act, 2005. E Though the supremacy of Parliament is one of the fundamental features in the UK and the unwritten Constitution does not mandate a strict separation of powers, it would be difficult to regard a state which has no control on legislative supremacy as a constitutional state founded on the rule of law40. Consequently, where the rule of law and constitutionalism govern society there may yet be fundamental principles inhering in the F nature of the polity, which can be enforced by the judiciary even against Parliament, in the absence of a written Constitution41. In other words, even in the context of an unwritten Constitution, the law has a certain internal morality as a part of which it embodies fundamental notions of justice and fairness. G 38 Peter A Gerangelos, THE SEPARATION OF POWERS AND LEGISLATIVE INTERFERENCE IN JUDICIAL P ROCESS, CONSTITUTIONAL PRINCIPLES AND LIMITATIONS (Hart Publishing, 2009) 39 R Stevens, ‘A Loss of Innocence?: Judicial Independence and the Separation of powers’ (1999) 19 OXFORD JOURNAL OF LEGAL STUDIES 365. 40 Allan, Law Liberty and Justice (supra note 36) 41 Gerangelos, at page 277. H

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47Copy pinpoint47. The interpretation of the doctrine of separation of powers has evolved from being a “one branch – one function approach”42 with limited exceptions, to a concept which involves an integration of the ‘division of work’ and ‘checks and balances’43. The primary aim of the doctrine today is to ensure the accountability of each wing of the State, while ensuring concerted action in respect of the functions of each organ for B good governance in a democracy. The doctrine of separation of power has developed to fulfill the changing needs of society and its growing necessities. Many of these considerations are significantly different from those which were prevalent when Montesquieu originally formulated the doctrine.

48Copy pinpoint48. In 1967, MJC Vile in his book titled ‘Constitutionalism and the Separation of Powers’44 defined the ‘pure doctrine’ of separation of powers thus: “[a] ‘pure doctrine’ of the separation of powers might be formulated in the following way: It is essential for the establishment and maintenance of political liberty that the government be divided into three branches or departments, the legislature, the executive, and the judiciary. To each of these three branches, there is a corresponding identifiable function of government, legislative, executive, or judicial. Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the same time a member of more than one branch. In this way, each of the branches will be a check to the others and no single group of people will be able to control the machinery of the State.”45 This definition becomes important to facilitate an understanding of the reconstructed and modern view on separation of powers vis-à-vis 42 Aileen Kavanagh, The Constitutional Separation of Powers, Chapter 11 in David G Dyzenhaus and Malcolm Thorburn (eds.)P HILOSOPHICAL FOUNDATIONS OF CONSTITUTIONAL LAW, (Oxford University Press, 2016) 221 (hereinafter, “Philosophical Foundations of Constitutional Law”). 43 See MJC Vile, CONSTITUTIONALISM AND THE SEPARATION OF P OWERS (Oxford University Press, 1967). 44 Id. H 45 Id, at page 13

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its traditional understanding. Vile essentially proposes that ‘division of A labor’ and ‘checks and balances’ are intrinsic to the theory of separation of powers. In his view, a scheme of checks and balances would involve a degree of mutual supervision among the branches of government, and may therefore result in a certain amount of interference by one branch into the functions and tasks of the other.46 Aileen Kavanagh, has presented B a scholarly analysis of separation of powers in a chapter titled ‘The Constitutional Separation of Powers’.47 She concurs with the view expressed by MJC Vile that separation of powers includes two components, that of ‘division of labour’ and ‘checks and balances’. These two components are strengthened by the deep-rooted ethos of coordinated institutional effort and joint activity between branches of the government in the interest of good governance. 48 Instead of an isolated compartmentalization of branches of government, she highlights the necessary independence, interdependence, interaction and interconnection between these branches in a complex interactive setting.49 Kavanagh acknowledges that in view of the stronghold of the pure doctrine over our understanding of separation of powers, the idea of a collective enterprise between the branches of the government for the purpose of governing may seem jarring. However, she argues that this idea of “branches being both independent and interdependent-distinct but interconnected-also has some pedigree in canonical literature.”50 Kavanagh thus opines that the tasks of law-making, law-applying and law-executing are collaborative in nature, necessitating co-operation between the branches of the government in furtherance of the common objective of good governance. Kavanagh explains this as follows: “In some contexts, the interaction between the branches will be supervisory, where the goal is to check, review and hold the other to account. At other times, the interaction will be a form of 46 See, MJC Vile, CONSTITUTIONALISM AND THE SEPARATION OF POWERS (Oxford University Press, 1967). 47 Aileen Kavanagh, The Constitutional Separation of Powers, Chapter 11 in David Dyzenhaus and Malcolm Thorburn (eds.)P HILOSOPHICAL FOUNDATIONS OF CONSTITUTIONAL G LAW, (Oxford University Press, 2016) 221. 48 See, D Kyritsis, ‘What is Good about Legal Conventionalism?’ (2008) 14 LEGAL THEORY 135, 154 (as cited in Philosophical Foundations of Constitutional Law, at page 235). 49 Id. 50 Philosophical Foundations of Constitutional Law, at page 236. H

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