KALPANA MEHTA AND OTHERS v. UNION OF INDIA AND OTHERS

A cooperative engagement where the branches have to support each other’s role in the joint endeavor.”51 Jeremy Waldron has dealt with the relationships among officials or institutions in a State. He proposes that separation of powers is not just a principle involving the division of labour and the distribution of power but also includes inter-institutional relationships between the three branches when carrying out their distinct roles as part of a joint enterprise. This is in order to facilitate, what Waldron called the ‘Principle of Institutional Settlement’.52 Further, inter-institutional comity, which is the respect that one branch of the state owes to another, is also a significant factor, which calls for collaboration among branches of the government to ensure that general public values such as welfare, autonomy, transparency, efficiency and fairness are protected and secured for the benefit of citizens.53 Thus, in a comparative international context, authors have accepted separation of powers to widely include two elements: ‘division of labour’ D and ‘checks and balances’. The recent literature on the subject matter encourages inter-institutional assistance and aid towards the joint enterprise of good governance. The current view on the doctrine of separation of powers also seeks to incorporate mutual supervision, interdependence and coordination because the ultimate aim of the different branches of the government, through their distinct functions is to ensure good governance and to serve public interest, which is essential in the background of growing social and economic interests in a welfare state. This stands in contrast with the former and original interpretation of the doctrine, which sought to compartmentalize and isolate the different branches of the government from one another, with limited permissible exceptions. 51 K Malleson, ‘The Rehabilitation of Separation of Powers in UK’ in L. de Groot-van Leeuwen and W Rombouts, S EPARATION OF P OWERS IN THEORY AND P RACTICE: AN INTERNATIONAL P ERSPECTIVE (Nijmegen: Wolf Publishing, 2010) 99-122, 115 (as cited in Philosophical Foundations of Constitutional Law, at page 237). G 52 J Waldron, ‘Authority for Officials’ in L. Meyer, S. Paulson and T. Pogge (eds), RIGHTS, CULTURE, AND THE LAW: THEMES FROM THE LEGAL AND POLITICAL P HILOSOPHY OF JOSEPH RAZ (Oxford University Press, 2003) 45-70. 53 See, J King, ‘Institutional Approaches to Judicial Restraint’ (2008) 28 OXFORD JOURNAL OF LEGAL STUDIES 409, 428; See also, Buckley v. Attorney General [1950] Irish Reports 67, 80 (per O’Bryne J) (as cited in Philosophical Foundations of Constitutional Law, H at page 235).

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49Copy pinpoint49. Eoin Carolan’s book titled ‘The New Separation of Powers’ A (2009) reflects an attempt to reshape the traditional doctrine of separation, to make it relevant to the practical realities of modern government. He notes that while the tripartite separation of powers between the legislature, executive and judiciary had “conceptual simplicity with an impeccable academic pedigree”54, the doctrine has obvious B limitations in the sense that it does not satisfactorily explain the emergence and growth of the modern administrative State we see today. The author contends that an institutional theory like the separation of powers can no longer be accepted in its original form if it cannot account for this ‘significant tranche of government activity’. Among the characteristics of the modern administrative State is that public power is exercised in a C decentralized manner and on an ever-growing discretionary basis.55 The shared growth of administrative powers of the bureaucracy in the modern state defies the tripartite division. Therefore, a realistic modern application of the theory is necessary. The modern system of government has grown in ways previously thought unfathomable, and now encompasses a breadth and diversity previously unseen. Government today is characterized by the increase in powers of its agencies and the rapid growth of organizations which can neither be classified as exclusively public or private bodies. These modern systems of government and the existence and rapid rise of supranational organizations defy the traditional three- way division of powers. Administrative bodies are not defined by a uniform design, and exercise institutional fluidity in a manner which has come to characterize the administrative state’s organizational complexity: In a single instance, they exercise powers and perform functions that might have been formerly classified as executive, judicial or legislative in nature.56In this view, the modern State is distinctly different from Locke’s seventeenth century Model and Montesquieu’s eighteenth century ideas: “The state is now dirigiste, discretionary, and broadly dispersed.”57

50Copy pinpoint50. Carolan thus proposes that to be suitable, a theory of institutional justice must be rooted in the principle of non-arbitrariness. He believes G 54 Eoin Carolan, THE NEW SEPARATION OF POWERS- A THEORY FOR THE MODERN STATE (Oxford University Press, 2009) 253. 55 Id. 56 Eoin Carolan, The Problems with the Theory of Separation of Powers’, SSRN, (2011) 26. 57 Supra note 53, 256 H

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A that a more suitable approach of classification of institutions would be not by functions, but by constituencies, and the sole constituency in this legal framework is the individual citizen. Carolan’s proposed model places emphasis on the exercise of power on the basis of inter-institutional dialogue which ensures that a communicative process has taken place58. Carolan describes his model thus: B “The prescribed institutional structure operates by inter-organ mingling instead of separation. Individual decisions are delivered at the end of a multi institutional process, the central concern of which is to organize, structure, manage, and—crucially—ensure the input of all relevant institutional interests. On this model, the government and the courts are presented as providing an orienting framework within which administrative decision-making will occur. These first-order organs function at the level of macro-social organization, adopting general measures which are expected to advance their constituent social interest. The government specifies the actions it feels are required (or requested) to enhance the position of the collective. The courts, for their part, insist on the process precautions necessary to secure individual protection. Issues of informational efficacy and non-arbitrariness combine to ensure, however, that these provisions are not particularized.”65 E While the autonomy of the administration is respected as a vital institutional process, corrective measures are required where an institution has strayed outside the range of permissible outcomes. He speaks of a collaborative process of exercising power, with the judiciary acting as a restraining influence on the arbitrary exercise of authority.

51Copy pinpoint51. While the Indian Constitution has been held to have recognized the doctrine of separation of powers, it does not adopt a rigid separation. In Ram Jawaya Kapur v State of Punjab59,this Court held: “12. …The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the G functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another.” 58 Supra note 53, 132 H 59

(1955) 2 SCR 225

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Reduced to its core, separation entails that one organ or institution of the state cannot usurp the powers of another. In Re: Powers, Privileges and Immunities of State Legislatures60, this Court held that whether or not the Constitution brings about a “distinct and rigid separation of powers”, judicial review is an inseparable part of the judicial function. Whether legislative authority has extended beyond its constitutional boundaries or the fundamental rights have been contravened cannot be decided by the legislature, but is a matter entrusted exclusively to judicial decision. In Kesavananda Bharati v State of Kerala61, separation of powers was regarded as a feature of the basic structure of the Indian C Constitution. Chief Justice Sikri held: “292. The learned Attorney-General said that every provision of the Constitution is essential; otherwise it would not have been put in the Constitution. This is true. But this does not place every provision of the Constitution in the same position. The true position D is that every provision of the Constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same. The basic structure may be said to consist of the following features: (1) Supremacy of the Constitution; E (2) Republican and Democratic form of Government; (3) Secular character of the Constitution; (4) Separation of powers between the legislature, the executive and the judiciary; F (5) Federal character of the Constitution.”62 Justices Shelat and Grover emphasized the doctrine of separation as a part of the checks and balances envisaged by the Constitution: “577. …There is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances by reason G of which powers are so distributed that none of the three organs it sets up can become so pre-dominant as to disable the others 60

(1965) 1 SCR 413

61 (1973) 4 SCC 225 62 Id, at page 366 H

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A from exercising and discharging powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powers in all its rigidity as is the case in the United States Constitution yet it envisages such a separation to a degree…” 63 B In Indira Nehru Gandhi v Raj Narain 64 , Justice YV Chandrachud held that while the Constitution does not embody a rigid separation of governmental powers, a judicial function cannot be usurped by the legislature: “689. …the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our cooperative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances.”65 The 39th amendment of the Constitution did precisely that and was held to violate the basic structure. In I R Coelho v State of Tamil Nadu⁶⁶,the Court underlined the functional complementarity between equality, the rule of law, judicial review and separation of powers: “129. Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ. Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary.”67 A Constitution Bench of this Court in State of Tamil Nadu v State of Kerala68 ruled on the importance of separation as an entrenched constitutional principle. The court held: G 63 Id, at page 452. 64 (1975) Suppl SCC 1 65 Id, at page 261. 66 (2007) 2 SCC 1 67 Id, at page 105 68 H (2014) 12 SCC 696

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“126.1. Even without express provision of the separation of A powers, the doctrine of separation of powers is an entrenched principle in the Constitution of India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of rule of law. In other words, the doctrine of separation of power though not expressly engrafted in the B Constitution, its sweep, operation and visibility are apparent from the scheme of Indian Constitution. Constitution has made demarcation, without drawing formal lines between the three organs—legislature, executive and judiciary. In that sense, even in the absence of express provision for separation of powers, the separation of powers between the legislature, executive and judiciary is not different from the Constitutions of the countries which contain express provision for separation of power.”69

52Copy pinpoint52. The doctrine of separation restrains the legislature from declaring a judgment of a court to be void and of no effect. However, in the exercise of its law making authority, a legislature possessed of legislative competence can enact validating law which remedies a defect pointed out in a judgment of a court. While the legislature cannot ordain that a decision rendered by the court is invalid, it may by enacting a law, take away the basis of the judgment such that the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances.70 E

53Copy pinpoint53. In State of UP v Jeet S Bisht71, the Court held that the doctrine of separation of powers limits the “active jurisdiction” of each branch of government. However, even when the active jurisdiction of an organ of the State is not challenged, the doctrine allows for methods to be used to prod and communicate to an institution either its shortfalls F or excesses in discharging its duty. The court recognized that fundamentally, the purpose of the doctrine is to act as a scheme of checks and balances over the activities of other organs. The Court noted that the modern concept of separation of powers subscribes to the 69 Id, at page 771 G 70 I.N. Saksena v. State of MP (1976) 4 SCC 750; Indian Aluminium Co. v. State of Kerala (1996) 7 SCC 637; S.S Bola and Others v. B.D Sardana & Others (1997) 8 SCC 522; Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality (1969) 2 SCC 283; Supreme Court Advocates-on-Record-Association and Ors. v. Union of India (2016) 5 SCC 1 71 (2007) 6 SCC 586 H

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A understanding that it should not only demarcate the area of functioning of various organs of the State, but should also, to some extent, define the minimum content in that delineated area of functioning. Justice SB Sinha addressedthe need for the doctrine to evolve, as administrative bodies are involved in the dispensation of socio-economic entitlements: “83. If we notice the evolution of separation of powers doctrine, traditionally the checks and balances dimension was only associated with governmental excesses and violations. But in today’s world of positive rights and justifiable social and economic entitlements, hybrid administrative bodies, private functionaries discharging public functions, we have to perform the oversight function with more urgency and enlarge the field of checks and balances to include governmental inaction. Otherwise we envisage the country getting transformed into a state of repose. Social engineering as well as institutional engineering therefore forms part of this obligation.”72

54Copy pinpoint54. The constitutional validity of the Members of Parliament Local Area Development (“MPLAD”) Scheme, which allocates funds to MPs for development work in their constituencies was considered by a Constitution Bench of this Court in Bhim Singh v Union of India73. E The challenge was that by entrusting funds to MPs, the Scheme vests governmental functions in legislators and violates the separation of powers. The Court held that while the concept of separation of powers is not found explicitly in a particular constitutional provision, it “is inherent in the polity the Constitution has adopted”. The Constitution Bench F perceived that there is a link between separation and the need to ensure accountability of each branch of government. While the Constitution does not prohibit overlapping functions, what it prohibits is the exercise of functions by a branch in a way which “results in wresting away of the regime of constitutional accountability.” The Court held that by allowing funds to be allocated to Members of Parliament for addressing the G development needs of their constituencies, the MPLAD Scheme does not breach the doctrine of separation of powers. The administration of the scheme was adequately supervised by district authorities. 72 Id, at page 619 73 (2010) 5 SCC 538 H

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55Copy pinpoint55. In Supreme Court Advocates-on-Record Association v A Union of India74, Justice Madan B Lokur observed that separation of powers does not envisage that each of the three organs of the State – the legislature, executive and judiciary - work in a silo. The learned judge held: “678. There is quite clearly an entire host of parliamentary and legislative checks placed on the judiciary whereby its administrative functioning can be and is controlled, but these do not necessarily violate the theory of separation of powers or infringe the independence of the judiciary as far as decision-making is concerned. As has been repeatedly held, the theory of separation of powers is not rigidly implemented in our Constitution, but if there is an overlap in the form of a check with reference to an essential or a basic function or element of one organ of State as against another, a constitutional issue does arise. It is in this context that the 99th Constitution Amendment Act has to be viewed— whether it impacts on a basic or an essential element of the independence of the judiciary, namely, its decisional independence.”75

56Copy pinpoint56. In State of West Bengal v Committee for Protection of Democratic Rights, West Bengal76, this Court held that the doctrine of separation of powers could not be invoked to limit the Court’s power to exercise judicial review, in a case where fundamental rights are sought to be breached or abrogated on the ground that exercise of the power would impinge upon the doctrine.

57Copy pinpoint57. In a more recent decision of a Bench of two learned judges of this Court in Common Cause v Union of India77,the Court construed the provisions of the Lokpal and Lokayuktas Act, 2013 under which a multi-member selection committee for the appointment of the Lokpal is to consist, among others, of the Leader of the Opposition. A Bill for amending the provisions of the Act was referred to a parliamentary committee which proposed the inclusion of the leader of the largest opposition party in the Lok Sabha as a member, in lieu of the Leader of the Opposition in the selection committee. The grievance of the petitioners 74 (2016) 5 SCC 1 75 Id, at page 583 76 (2010) 3 SCC 571 77 (2017) 7 SCC 158 H

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A was that despite the enactment of the law, its provisions had not been implemented. It was urged that even if there is no recognized Leader of the Opposition in the Lok Sabha, the leader of the single largest opposition party should be inducted as a part of the Selection Committee. Justice Ranjan Gogoi speaking for this Court held thus: B “18. There can be no manner of doubt that the parliamentary wisdom of seeking changes in an existing law by means of an amendment lies within the exclusive domain of the legislature and it is not the province of the Court to express any opinion on the exercise of the legislative prerogative in this regard. The framing of the Amendment Bill; reference of the same to the Parliamentary C Standing Committee; the consideration thereof by the said Committee; the report prepared along with further steps that are required to be taken and the time-frame thereof are essential legislative functions which should not be ordinarily subjected to interference or intervention of the Court. The constitutional doctrine of separation of powers and the demarcation of the respective jurisdiction of the Executive, the Legislature and the Judiciary under the constitutional framework would lead the Court to the conclusion that the exercise of the amendment of the Act, which is presently underway, must be allowed to be completed without any intervention of the Court. Any other view and any interference, at this juncture, would negate the basic constitutional principle that the legislature is supreme in the sphere of law-making. Reading down a statute to make it workable in a situation where an exercise of amendment of the law is pending, will not be justified either. A perception, however strong, of the imminent need of the law engrafted in the Act and its beneficial effects on the citizenry of a democratic country, by itself, will not permit the Court to overstep its jurisdiction. Judicial discipline must caution the Court against such an approach.”78

58Copy pinpoint58. While assessing the impact of the separation of powers upon the present controversy, certain precepts must be formulated. Separation of powers between the legislature, the executive and the judiciary is a basic feature of the Constitution. As a foundational principle which is comprised within the basic structure, it lies beyond the reach of the constituent power to amend. It cannot be substituted or abrogated. While 78 Id, at page 173 H

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recognizing this position, decided cases indicate that the Indian Constitution A does not adopt a separation of powers in the strict sense. Textbook examples of exceptions to the doctrine include the power of the executive to frame subordinate legislation, the power of the legislature to punish for contempt of its privileges and the authority entrusted to the Supreme Court and High Courts to regulate their own procedures by framing B rules. In making subordinate legislation, the executive is entrusted by the legislature to make delegated legislation, subject to its control. The rule making power of the higher judiciary has trappings of a legislative character. The power of the legislature to punish for contempt of its privileges has a judicial character. These exceptions indicate that the separation doctrine has not been adopted in the strict form in our C Constitution. But the importance of the doctrine lies in its postulate that the essential functions entrusted to one organ of the state cannot be exercised by the other. By standing against the usurpation of constitutional powers entrusted to other organs, separation of powers supports the rule of law and guards against authoritarian excesses. Parliament and the State Legislatures legislate. The executive frames policies and administers the law. The judiciary decides and adjudicates upon disputes in the course of which facts are proved and the law is applied. The distinction between the legislative function and judicial functions is enhanced by the basic structure doctrine. The legislature is constitutionally entrusted with the power to legislate. Courts are not entrusted with the power to enact law. Yet, in a constitutional democracy which is founded on the supremacy of the Constitution, it is an accepted principle of jurisprudence that the judiciary has the authority to test the validity of legislation. Legislation can be invalidated where the enacting legislature lacks legislative competence or where there is a violation of fundamental rights. A law which is constitutionally ultra vires can be declared to be so in the exercise of the power of judicial review. Judicial review is indeed also a part of the basic features of the Constitution. Entrustment to the judiciary of the power to test the validity of law is an established constitutional principle which co-exists with the separation of powers. Where a law is held to be ultra vires there is no breach of parliamentary privileges for the simple reason that all institutions created by the Constitution are subject to constitutional limitations. The legislature, it is well settled, cannot simply declare that the judgment of a court is invalid or that it stands nullified. If the legislature were permitted to do so, it would travel beyond the boundaries of constitutional entrustment. While H

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A the separation of powers prevents the legislature from issuing a mere declaration that a judgment is erroneous or invalid, the law-making body is entitled to enact a law which remedies the defects which have been pointed out by the court. Enactment of a law which takes away the basis of the judgment (as opposed to merely invalidating it) is permissible and does not constitute a violation of the separation doctrine. That indeed is the basis on which validating legislation is permitted.

59Copy pinpoint59. This discussion leads to the conclusion that while the separation of powers, as a principle, constitutes the cornerstone of our democratic Constitution, its application in the actual governance of the polity is nuanced. The nuances of the doctrine recognize that while the essential functions of one organ of the state cannot be taken over by the other and that a sense of institutional comity must guide the work of the legislature, executive and judiciary, the practical problems which arise in the unfolding of democracy can be resolved through robust constitutional cultures and mechanisms. The separation doctrine cannot be reduced to its descriptive content, bereft of its normative features. Evidently, it has both normative and descriptive features. In applying it to the Indian Constitution, the significant precept to be borne in mind is that no institution of governance lies above the Constitution. No entrustment of power is absolute. E G A functional relationship

60Copy pinpoint60. What then does the above analysis tell us about the functional relationship of the work which is done by parliamentary committees and the role of the court as an adjudicator of disputes? In assessing the issue, it must be remembered, that parliamentary committees owe their F existence to Parliament. They report to Parliament. They comprise of the members of Parliament. Their work consists of tendering advice to the legislature. A parliamentary committee does not decide a lis between contesting disputants nor does it perform an adjudicatory function. A committee appointed by the House can undoubtedly receive evidence, including expert evidence, both oral and documentary. A Select Committee G may be appointed by the House to scrutinize a Bill. When the committee performs its task, its report is subject to further discussion and debate in the House in the course of which the legislative body would decide as to whether the Bill should be enacted into law. The validity of the advice which is tendered by a parliamentary committee in framing its H recommendations for legislation cannot be subject to a challenge before

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a court of law. The advice tendered is, after all, what it purports to be: it is advice to the legislating body. The correctness of or the expediency or justification for the advice is a matter to be considered by the legislature and by it alone.

61Copy pinpoint61. Department related standing committees are constituted by Parliament to oversee the functioning of ministries/departments of government. It is through the work of these committees that Parliament exacts the accountability of the executive. It is through the work of these committees that Parliament is able to assess as to whether the laws which it has framed are being implemented in letter and spirit and to determine the efficacy of government policies in meeting the problems of the day. C

62Copy pinpoint62. The contents of the report of a parliamentary committee may have a bearing on diverse perspectives. It is necessary to elucidate them in order to determine whether, and if so to what extent, they can form the subject matter of consideration in the course of adjudication in a court. Some of these perspectives are enumerated below: D

(i) The report of a parliamentary committee may contain a statement of position by government on matters of policy; (ii) The report may allude to statements made by persons who have deposed before the Committee; E (iii) The report may contain inferences of fact including on the performance of government in implementing policies and legislation; (iv) The report may contain findings of misdemeanor implicating a breach of duty by public officials or private individuals or an evasion of law; or (v) The report may shed light on the purpose of a law, the social problem which the legislature had in view and the manner in which it was sought to be remedied.

63Copy pinpoint63. The use of parliamentary history as an aid to statutory construction is an area which poses the fewest problems. In understanding the true meaning of the words used by the legislature, the court may have regard to the reasons which have led to the enactment of the law, the problems which were sought to be remedied and the H

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A object and purpose of the law. For understanding this, the court may seek recourse to background parliamentary material associated with the framing of the law. In his seminal work on the Interpretation of Statutes, Justice G P Singh notes that the traditional rule of exclusion in English Courts has over a period of time been departed from in India as well to permit the court to have access to the historical background in which the law was enacted. Justice G P Singh79 notes: “The Supreme Court, speaking generally, to begin with, enunciated the rule of exclusion of Parliamentary history in the way it was traditionally enunciated by the English Courts, but on many an occasion, the court used this aid in resolving questions of construction. The court has now veered to the view80 that legislative history within circumspect limits may be consulted by courts in resolving ambiguities. But the courts still sometimes, like the English courts, make a distinction between use of a material for finding the mischief dealt with by the Act and its use for finding the meaning of the Act. As submitted earlier this distinction is unrealistic and has now been abandoned by the House of Lords.”

64Copy pinpoint64. Reports of parliamentary committees may contain a statement of position by government on matters of policy. There is no reason in principle to exclude recourse by a court to the report of the committee at least as a reflection of the fact that such a statement was made before the committee. Similarly, that a statement was made before the committee - as a historical fact - may be taken note of by the court in a situation where the making of the statement itself is not a contentious issue.

65Copy pinpoint65. In matters involving public interest which come up before the court, a grievance is often made of the violation of the fundamental rights of persons who by reason of poverty, ignorance or marginalized status are unable to seek access to justice. Public interest litigation has been perceived as social action litigation because a relaxation of the rules of standing has enabled constitutional courts to reach out to those who have suffered discrimination and prejudice. Whatever be the source of such discrimination – the feudal and patriarchal structures of Indian society being among them – public interest litigation has enabled courts 79 Justice G P Singh, P RINCIPLES OF STATUTORY INTERPRETATION (14th edn.) 253. 80 Kesavananda Bharati v. State of Kerala 1973 (4) SCC 225; Tata Power Co. Ltd. v. Reliance Energy Ltd (2009) 16 SCC 659; Namit Sharma v. Union of India (2013) 1 SCC H 745.

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to develop flexible tools of decision making and pursue innovative remedies. The writ of continuing mandamus is one of them. In the process, the violation of the fundamental rights of those groups of citizens who may not be able to seek access to justice is sought to be remedied. Public interest litigation has emerged as a powerful tool to provide justice to the marginalized. In matters involving issues of public interest, courts have been called upon to scrutinize the failure of the state or its agencies to implement law and to provide social welfare benefits to those for whom they are envisaged under legislation. Courts have intervened to ensure the structural probity of the system of democratic governance. Executive power has been made accountable to the guarantee against arbitrariness (Article 14) and to fundamental liberties (principally Articles C 19 and 21).

66Copy pinpoint66. Committees of Parliament attached to ministries/departments of the government perform the function of holding government accountable to implement its policies and its duties under legislation. The performance of governmental agencies may form the subject matter of such a report. In other cases, the deficiencies of the legislative framework in remedying social wrongs may be the subject of an evaluation by a parliamentary committee. The work of a parliamentary committee may traverse the area of social welfare either in terms of the extent to which existing legislation is being effectively implemented or in highlighting the lacunae in its framework. There is no reason in principle why the wide jurisdiction of the High Courts under Article 226 or of this Court under Article 32 should be exercised in a manner oblivious to the enormous work which is carried out by parliamentary committees in the field. The work of the committee is to secure alacrity on the part of the government in alleviating deprivations of social justice and in securing efficient and accountable governance. When courts enter upon issues of public interest and adjudicate upon them, they do not discharge a function which is adversarial. The constitutional function of adjudication in matters of public interest is in step with the role of parliamentary committees which is to secure accountability, transparency and responsiveness in government. In such areas, the doctrine of separation does not militate against the court relying upon the report of a parliamentary committee. The court does not adjudge the validity of the report nor for that matter does it embark upon a scrutiny into its correctness. There is a functional complementarity between the purpose of the investigation by the H

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A parliamentary committee and the adjudication by the court. To deprive the court of the valuable insight of a parliamentary committee would amount to excluding an important source of information from the purview of the court. To do so on the supposed hypothesis that it would amount to a breach of parliamentary privilege would be to miss the wood for the trees. Once the report of the parliamentary committee has been published it lies in the public domain. Once Parliament has placed it in the public domain, there is an irony about the executive relying on parliamentary privilege. There is no reason or justification to exclude it from the purview of the material to which the court seeks recourse to understand the problem with which it is required to deal. The court must look at the report with a robust common sense, conscious of the fact that it is not called upon to determine the validity of the report which constitutes advice tendered to Parliament. The extent to which the court would rely upon a report must necessarily vary from case to case and no absolute rule can be laid down in that regard.

67Copy pinpoint67. There may, however, be contentious matters in the report of a parliamentary committee in regard to which the court will tread with circumspection. For instance, the report of the committee may contain a finding of misdemeanor involving either officials of the government or private individuals bearing on a violation of law. If the issue before the court for adjudication is whether there has in fact been a breach of duty or a violation of law by a public official or a private interest, the court would have to deal with it independently and arrive at its own conclusions based on the material before it. Obviously in such a case the finding by a Parliamentary Committee cannot constitute substantive evidence before the court. The parliamentary committee is not called upon to decide a lis or dispute involving contesting parties and when an occasion to do so arises before the court, it has to make its determination based on the material which is admissible before it. An individual whose conduct has been commented upon in the report of a parliamentary committee cannot be held guilty of a violation on the basis of that finding. In Jyoti Harshad Mehta v The Custodian 81, this Court held that a report of the G Janakiraman committee could not have been used as evidence by the Special Court. The court held: “57. It is an accepted fact that the reports of the Janakiraman Committee, the Joint Parliamentary Committee and the Inter- 81 (2009) 10 SCC 564 H

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Disciplinary Group (IDG) are admissible only for the purpose of A tracing the legal history of the Act alone. The contents of the report should not have been used by the learned Judge of the Special Court as evidence.”82

68Copy pinpoint68. Section 57 of the Indian Evidence Act 1872 speaks of facts of which the court must take judicial notice. Section 57 is comprised in B Part II (titled ‘On proof’). Chapter III deals with facts which need not be proved. Section 57(4) provides as follows: “57. Facts of which Court must take judicial notice – The Court shall take judicial notice of the following facts:- *** C

(4). The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the legislatures established under any law for the time being in force in a Province or in the State.” D In The Sole Trustee, Lok Shikshana Trust v The Commissioner of Income Tax, Mysore83, a three judge Bench of this Court, while construing Section 57(4) made a distinction between the fact that a particular statement is made in Parliament and the correctness of what is stated on a question of fact. The former could be relied upon. However, the truth of a disputable question of fact would have to be independently proved before the court. Justice HR Khanna observed thus: “33. We find that Section 57, sub-section (4) of the Evidence Act not only enables but enjoins courts to take judicial notice of the course of proceedings in Parliament assuming, of course, that it is relevant. It is true that the correctness of what is stated, on a question of fact, in the course of parliamentary proceedings, can only be proved by somebody who had direct knowledge of the fact stated. There is, however, a distinction between the fact that a particular statement giving the purpose of an enactment was made in Parliament, of which judicial notice can be taken as part of the proceedings, and the truth of a disputable matter of fact stated in the course of proceedings, which has to be proved aliunde, 82 Id, at page 582 83 (1976) 1 SCC 254 H

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A that is to say, apart from the fact that a statement about it was made in the course of proceedings in Parliament (see: Rt. Hon’ble Jerald Lord Strickland v. Carmelo Mifud Bonnici [AIR 1935 PC 34 : 153 IC 1] ; the Englishman Ltd. v. Lajpat Rai, ILR 37 Cal 760: 6 IC 81: 14 CWN 945.”84 B A statement made by the Finance Minister while proposing amendment could, it was held, be taken judicial notice of. Judicial notice would be taken of the fact that “such a statement of the reason was given in the course of such a speech”. In Onkar Nath v The Delhi Administration85,another Bench C of three judges elaborated upon Section 57(4). Justice YV Chandrachud, speaking for the Court, held thus: “6. One of the points urged before us is whether the courts below were justified in taking judicial notice of the fact that on the date when the appellants delivered their speeches a railway strike was imminent and that such a strike was in fact launched on May 8,

1974. Section 56 of the Evidence Act provides that no fact of which the Court will take judicial notice need be proved. Section 57 enumerates facts of which the Court “shall” take judicial notice and states that on all matters of public history, literature, science or art the Court may resort for its aid to appropriate books or documents of reference. The list of facts mentioned in Section 57 of which the Court can take judicial notice is not exhaustive and indeed the purpose of the section is to provide that the Court shall take judicial notice of certain facts rather than exhaust the category of facts of which the Court may in appropriate cases take judicial notice. Recognition of facts without formal proof is a matter of expediency and no one has ever questioned the need and wisdom of accepting the existence of matters which are unquestionably within public knowledge. (See Taylor, 11th Edn., pp. 3-12; Wigmore, Section 2571, footnote; Stephen’s Digest, notes to Article 58; Whitley Stokes’ Anglo-Indian Codes, Vol. II, p. G 887.) Shutting the judicial eye to the existence of such facts and matters is in a sense an insult to commonsense and would tend to reduce the judicial process to a meaningless and wasteful ritual. 84 Id, at page 272 85 (1977) 2 SCC 611 H

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

No court therefore insists on formal proof, by evidence, of notorious facts of history, past or present. The date of poll, the passing away of a man of eminence and events that have rocked the nation need no proof and are judicially noticed. Judicial notice, in such matters, takes the place of proof and is of equal force.” 86 In Baburao Alias P B Samant v Union of India87,the court observed thus: “31. The Lok Sabha Debates and the Rajya Sabha Debates are the journals or the reports of the two Houses of Parliament which are printed and published by them. The court has to take judicial notice of the proceedings of both the Houses of Parliament and is expected to treat the proceedings of the two Houses of Parliament as proved on the production of the copies of the journals or the reports containing proceedings of the two Houses of Parliament which are published by them.”88 These observations were in the context, specifically, of the provisions of the Evidence Act, including Section 57(4). The court held that the production of debates of the Lok Sabha and Rajya Sabha containing the proceedings of the two Houses of Parliament, relating to the period between the time when the resolutions were moved in each of the two Houses and the time when the resolutions were duly adopted amounted to proof of the resolutions. The court was required to take judicial notice under Section 57. H Conclusion

69Copy pinpoint69. The issue which has been referred to the Constitution Bench is whether the report of a Parliamentary Standing Committee can be relied upon in a proceeding under Article 32 or Article 136 of the Constitution. Allied to this is whether parliamentary privileges and the doctrine of separation of powers (shades of which find expression in the often-used phrase ‘the delicate balance’) impose restraints on the ability of the court to seek recourse to parliamentary reports. G

70Copy pinpoint70. In finding an answer to the questions in reference, this Court must of necessity travel from a literal and perhaps superficial approach, to an understanding of the essence of what the Constitution seeks to 86 Id, at page 614 87 1988 (Supp.) SCC 401 88 Id, at page 414 H

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A achieve. At one level, our Constitution has overseen the transfer of political power from a colonial regime to a regime under law of a democratic republic. Legitimizing the transfer of political power is one, but only one facet of the Constitution. To focus upon it alone is to miss a significant element of the constitutional vision. That vision is of about achieving a social transformation. This transformation which the Constitution seeks to achieve is by placing the individual at the forefront of its endeavours. Crucial to that transformation is the need to reverse the philosophy of the colonial regime, which was founded on the subordination of the individual to the state. Liberty, freedom, dignity and autonomy have meaning because it is to the individual to whom the Constitution holds out an assurance of protecting fundamental human rights. The Constitution is about empowerment. The democratic transformation to which it aspires places the individual at the core of the concerns of governance. For a colonial regime, individuals were subordinate to the law. Individuals were subject to the authority of the state and their well- being was governed by the acceptance of a destiny wedded to its power. D Those assumptions which lay at the foundation of colonial rule have undergone a fundamental transformation for a nation of individuals governed by the Constitution. The Constitution recognises their rights and entitlements. Empowerment of individuals through the enforcement of their rights is the essence of the constitutional purpose. Hence, in understanding the issues which have arisen before the Court in the present reference, it is well to remind ourselves that since the Constitution is about transformation and its vision is about empowerment, our reading of precepts drawn from a colonial past, including parliamentary privilege, must be subjected to a nuance that facilitates the assertion of rights and access to justice. We no longer live in a political culture based on the subordination of individuals to the authority of the State. Our interpretation of the Constitution must reflect a keen sense of awareness of the basic change which the Constitution has made to the polity and to its governance.

71Copy pinpoint71. A distinguished South African Judge, Albie Sachs has spoken of the importance of understanding the value of constitutional transformation. In his book titled ‘The Strange Alchemy of Life and Law’89, explaining the role of the constitutional court, Sachs has this to say: 89 Justice Albie Sachs, The Strange Alchemy of Life and Law (Oxford University Press H 2009) pages 32-33.

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“It is difficult to analyse the impact that court decisions have on actual historical events. It may well be that the publicity given to the case, and the evidence and arguments presented had more impact on public life than did the actual decision. Yet any amount of forensic combat, however bitter and prolonged, is better than a single bullet. Submitting the harsh conflicts of our times to legal scrutiny – conducted transparently and in the light of internationally accepted values of fairness and justice – was a telling rebuttal of mercenarism and violence, whether from or against the State. It responded in a practical way to the immediate issues, and at the same time induced governments, judiciaries, and law enforcement agencies in three countries to engage with each other and carefully consider their powers and responsibilities under the international law. It reaffirmed to the South African public that we were living in a constitutional democracy in which all exercises of power were subject to constitutional control. It said something important about the kind of country in which we lived and about the importance of principled and reasoned debate. It underlined that we had moved from a culture of authority and submission to the law, to one of justification and rights under the law.” (emphasis supplied)

72Copy pinpoint72. In India, no less than in South Africa it is important to realise that citizens live in a constitutional democracy in which every exercise of power is subject to constitutional control. Every institution of the State is subject to the Constitution. None lies above it. The most important feature of Sachs’ vision relevant to our Constitution is that Indian society must move “from the culture of authority and submission to the law, to one of justification and rights under the law”. F

73Copy pinpoint73. Once we place the fulfilment of individual rights and human freedoms at the forefront of constitutional discourse, the resolution of the present case presents no difficulty. Individuals access courts to remedy injustice. As institutions which are committed to the performance of a duty to facilitate the realisation of human freedom, High Courts as well G as this Court are under a bounden obligation to seek and pursue all information on the causes of injustice. Where the work which has been performed by a coordinate constitutional institution – in this case a Parliamentary Committee, throws light on the nature of the injustice or its causes and effects, constitutional theory which has to aid justice cannot H

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A lead us to hold that the court must act oblivious to the content of the report. History and contemporary events across the world are a reminder that black-outs of information are used as a willing ally to totalitarian excesses of power. They have no place in a democracy. Placing reliance on the report of a Parliamentary Committee does not infringe parliamentary privilege. No Member of Parliament is sought to be made liable for what has been said or for a vote tendered in the course of a debate. The correctness or validity of the report of a Parliamentary Committee is not a matter which can be agitated before the Court nor does the Court exercise such a function. Where an issue of fact becomes contentious, it undoubtedly has to be proved before a court independently on the basis of the material on the record. In other words, where a fact referred to in the report of the Parliamentary Committee is contentious, the court has to arrive at its own finding on the basis of the material adduced before it.

74Copy pinpoint74. Parliamentary Committees are an intrinsic part of the process by which the elected legislature in a democracy exacts accountability on the part of the government. Department related Parliamentary Standing Committees undertake the meticulous exercise of scrutinizing the implementation of law, including welfare legislation and the performance of the departments of the State. The purpose of law is to promote order for the benefit of the citizen and to protect rights and entitlements guaranteed by the Constitution and by statute. Access to justice as a means of securing fundamental freedoms and realizing socio-economic entitlements is complementary to the work of other organs of the State. The modern doctrine of separation of powers has moved away from a ‘one organ – one function’ approach, to a more realistic perspective which recognizes the complementarity in the work which is performed by institutions of governance. Judicial review is founded on the need to ensure accountable governance in the administration of law as an instrument of realizing the rights guaranteed by the Constitution. If the function of judicial review in facilitating the realization of socio-economic rights is construed in the context of the modern notion of separation of powers, there is no real conflict between the independence of the judicial process and its reliance on published reports of Parliamentary Committees. Ultimately it is for the court in each case to determine the relevance of a report to the case at hand and the extent to which reliance can be placed upon it to facilitate access to justice. Reports of H

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Parliamentary Committees become part of the published record of the A State. As a matter of principle, there is no reason or justification to exclude them from the purview of the judicial process, for purposes such as understanding the historical background of a law, the nature of the problem, the causes of a social evil and the remedies which may provide answers to intractable problems of governance. The court will in the facts of a case determine when a matter which is contentious between the parties would have to be adjudicated upon independently on the basis of the evidence adduced in accordance with law. In the circumstances, the reference is answered by holding that: (i) As a matter of principle, there is no reason why reliance upon the report of a Parliamentary Standing Committee cannot be placed in proceedings under Article 32 or Article 136 of the Constitution; (ii) Once the report of a Parliamentary Committee has been published, reference to it in the course of judicial proceedings will not constitute a breach of parliamentary privilege; D (iii) The validity of the report of a Parliamentary Committee cannot be called into question in the court. No Member of Parliament or person can be made liable for what is stated in the course of the proceedings before a Parliamentary Committee or for a vote tendered or given; and (iv) When a matter before the court assumes a contentious E character, a finding of fact by the court must be premised on the evidence adduced in the judicial proceeding as explained in paragraphs 67 and 73.

75Copy pinpoint75. The issues framed for reference are accordingly answered.

76Copy pinpoint76. The proceedings may now be placed before the Hon’ble Chief F Justice for assignment of the case for disposal.

ASHOK BHUSHAN, J. 1. This Constitution Bench is required to answer some important Constitutional issues which also involve issues relating to delicate balance between the Parliament and the Judiciary. G The Hon’ble Chief Justice has circulated His Lordships’ judgment which has been carefully read by me. Although I am in substantial agreement with the conclusions arrived by My Lord the Chief Justice, but looking to the importance of the issues involved I have penned my own views & conclusions. H

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A 2. Whether acceptance and reliance on a Parliamentary Standing Committee Report by this Court while hearing a Public Interest Writ Petition amount to breach of any privilege of the Parliament, is the sum & substance of the questions referred to this Constitution Bench. During course of hearing of these Writ Petitions, learned senior counsel of respondent No. 8 (M.S.D. Pharmaceuticals Private Limited) raised B objection regarding admissibility & consideration of the Parliamentary Committee Report, considering which objections following two questions have been referred to be answered: “(i) Whether in a litigation filed before this Court either under Article 32 or Article 136 of the Constitution of India, the Court C can refer to and place reliance upon the report of the Parliamentary Standing Committee? (ii) Whether such a Report can be looked at for the purpose of reference and, if so, can there be restrictions for the purpose of reference regard being had to the concept of D parliamentary privilege and the delicate balance between the constitutional institutions that Articles 105, 121 and 122 of the Constitution conceive?”

3. The background facts as disclosed by the two writ petitions giving rise to the above two questions need to be noted now: E WRIT PETITION (C) NO.558 OF 2012 The Writ Petition as a Public Interest Litigation has been filed by three petitioners, petitioner Nos.1 and 2 claim to be working for women health whereas the Petitioner No.3 is a registered Society working with F women organisations to help them to improve their lives and livelihood and to seek justice for marginalised communities. In July, 2009, the petitioners became aware of a so called demonstration project work being carried out in States of Andhra Pradesh and Gujarat by PATH (respondent No.6), a US based NGO along with the Indian Council of Medical Research(ICMR) and Governments of Andhra Pradesh and G Gujarat. In the above project about 32,000 young adolescent girls in the age group of 10-14 years were to be administered HPV (Human Papilloma Virus) vaccines purported to be effective in preventing cervical cancer. HPV vaccine, namely, “Gardasil” is manufactured by respondent No.7- Glaxosmithkline Asia Pvt. Ltd. and “Cervarix” by respondent No.8- M.S.D. Pharmaceuticals Private Limited, licenced in India only in July, H

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2008 and September, 2008 respectively by Drug Controller General of A India.

4. In July, 2009 vaccine Gardasil in Khammam District in Andhra Pradesh was administered. Few girl childs died. Health activists wrote to the Ministry of Health pointing out concern about irregularities and health risk of the HPV vaccine. Women organisation sent representations B and also conducted a fact finding enquiry. On 15th April, 2010, Government of India appointed a Committee to enquire into “alleged irregularities in the conduct of studies using Human Papilloma Virus(HPV) vaccine” by PATH in India. The final report of Committee was submitted on 15.02.2011. Enquiry committee noted several discrepancies. The Parliamentary Standing Committee of Department of Health Research, C Ministry of Health and Family Welfare while examining the demand for grants (2010-11) of Department of Health Research took up the issue of trial of HPV vaccine on children in Districts of Khammam, Andhra Pradesh and Vadodara, Gujarat. Parliamentary Standing Committee (hereinafter referred to as “P.S.C.”) deliberated on the subject and held various meetings. The Committee heard the UOI, ICMR, Department of Drugs Controller General of India and also took oral evidence. The Departmental Standing Committee submitted its report (72nd Report) to Rajya Sabha on 30th August, 2013 which was also laid on the table of Lok Sabha on 30th August, 2013. The P.S.C. found various shortcomings and lapses of the Government Departments, ICMR as well as on part of the respondent Nos.6 to 8. Various directions and recommendations were issued by the Committee. Again a detailed report, namely, 81st Report on “action taken by the Government on the recommendations/ observations contained in the 72nd Report on the alleged irregularities in the conduct of studies using Human Papilloma Virus(HPV) vaccine by F PATH” in India was submitted to Rajya Sabha on 23rd December, 2014 and also laid on the table of Lok Sabha on 23rd December, 2014. Both the reports have been brought on record. Writ Petition (C) No. 921 of 2013

5. The Writ Petition as a Public Interest Litigation has been filed G by petitioners of which petitioner Nos. 1 and 2 are public trusts and petitioner Nos. 3 and 4 are registered societies. The petitioners have questioned the methods in which clinical trials for medicines including vaccines are taking place in this country to the disadvantage of vulnerable groups in the society including the poor, tribal, women and children. The H

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A facts and pleadings in the writ petition are on the line of facts and pleadings as contained in Writ Petition (c) No. 558 of 2012, hence are not repeated for brevity. Petitioners have prayed for various reliefs including declaration that HPV Vaccine Observational Study Demonstration Project was a Phase IV clinical trial within the meaning of various Rules in Drugs and Cosmetics Rules, 1945. Petitioners have B made several prayers including the prayers for grant of compensation and direction for investigation by Special Investigation Team of various offences committed by respondent Nos. 2 to 8.

6. In both the writ petitions, most of materials including fact finding enquiry conducted by the petitioner No.1 in Writ Petition (C) No. 921 of C 2013(PIL-W), newspapers reports, articles, representations, correspondence have been referred to and relied. Apart from other materials, reference and reliance on 72nd Report presented on 30th August, 2013 and 81st Report presented on 23rd December, 2014 to Rajya Sabha have also been placed.

D 7. A two Judge Bench of this Court while hearing the writ petitions has posed several questions and issued various directions. In this context the Court passed various directions on 12.08.2014, 13.01.2015 and 17.11.2015.

8. When the matter was heard on 18.11.2015 by two Judge Bench E this Court Stated : “Be it noted, a substantial issue in law has arisen in course of hearing of this case which pertains to exercise of power of judicial review when a report of the Parliamentary Standing Committee is filed before the Court.” After hearing the parties on 18.11.2015 the two Judge Bench of this Court by a detailed order dated 05.⁴.2017 has F referred two questions as noted above to be answered by a Constitution Bench. SUBMISSIONS

9. We have heard Shri Colin Gonsalves, learned senior advocate for petitioner in Writ Petition (C) No.558/2012 and Shri Anand Grover, G learned senior advocate for petitioner in Writ Petition (C) No.921 of

2013. Shri Harish Salve and Shri Gourab Banerji, learned senior advocates have appeared for respondent No.8-MSD Pharmaceuticals Private Limited. Shri Shyam Divan, learned senior advocate has appeared for PATH International. We have also heard Shri K.K.Venugopal, learned Attorney General of India. H

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10. Shri Salve submits that Parliamentary Committee Report can neither be looked into nor relied by this Court. Shri Salve, however, submits that there are two areas where Parliamentary Committee Report can be relied i.e. (a) legislative history of a statute and (b) Minister’s statement in the House. The Members of Parliament as well as those who appear before the Parliamentary Committee are fully protected by the legislative privileges of the members as well as of the Houses. Article 105 sub-clause (2) of the Constitution of India provides that no member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof. He further submits that as per Article 105 sub-clause (3) the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, is same as of those of the House of Commons as it exists on 26th November, 1950. Article 105 sub-clause (4) extends the privileges as referred to in clauses (1), (2) and (3) to all persons who have the right to speak in, and otherwise to take part in the proceedings of any House of Parliament or any committee thereof. Evidence led in a Court cannot be criticised. Same principles can apply with regard to evidence taken by a Parliamentary Committee. A committee of Parliament is part of Parliament.

11. The principal submission which has been canvassed by Shri Salve is that there being legislative privilege of all acts done in the Parliament including report of Parliamentary Committee, the report cannot be challenged in a Court of Law. He submits that reliance of a Parliamentary Committee Report also involves a challenge to the report by other parties. No adjudication can be entertained by this Court with regard to a Parliamentary Committee Report, hence reliance placed by the petitioner on the Parliamentary Committee Report is misplaced. F

12. Relying on Article IX of Bill of Rights 1688, Shri Salve submits that it confers on ‘proceedings in Parliament’ protection from being ‘impeached or questioned’ in any ‘court or place out of Parliament’. He submits that Indian Parliament is conferred the same privileges which are enjoyed by the House of Commons, hence Parliamentary Committee G Report can neither be relied nor questioned in any Court of Law. Shri Salve referred to various English cases and several judgments of this Court which shall be referred to while considering the submissions in detail.

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A 13. Shri K.K. Venugopal, learned Attorney General also contends that Parliamentary Reports cannot be relied in Court. He submits that although there is no rigid separation of powers in the three wings of States but each wing of the States works in its own sphere. Parliament is supreme in its proceedings which proceedings cannot be questioned in any Court of Law. The Parliamentary Reports cannot be made subject B matter of an issue in any proceeding of Court of Law or even in a public interest litigation. He submits that all wings of the States have to work in their own spheres so as not to entrench upon the sphere allotted to other wing of State. He submitted that referring to a report of Parliamentary Committee is a sensitive issue of jurisdiction between Courts and C Parliament which should be avoided by this Court. When the courts cannot adjudicate on Parliamentary Committee Report, what is the use of looking into it. Referring to Section 57(4) of the Evidence Act, 1872 which provides that the Court shall take judicial notice of the proceedings of the Parliament and the Legislature established under any law for the time being in force, he submits that the substitutions were made in sub- D clause (4) of Section 57 by Adaptation Order of 1950 which were orders issued by the President and were not amendments made by Parliament in Section 57. He submits that by Adaptation Order various words which were earlier used in Evidence Act, 1872 were changed after adoption of Constitution which cannot be treated to be an act done by conscious E deliberation of Legislature. He submits that historical facts as well as statement of Minister in Parliament can be used with which there cannot be any quarrel. He, however, submits that inferences in Parliamentary Committee Report are not acceptable. He submits that when any litigant wants to prove a fact, he has to search material and produce evidence and he cannot be allowed to take a shortcut by placing reliance on the F Parliamentary Committee Report. Parliamentary Committee Report, is, in a manner, a speech. Article 105 of the Constitution does not make any distinction with reports which can be termed to as Social Welfare Reports or other kinds of reports. He submits that there is total bar in looking into the Reports of Parliament based on separation of power and G express provisions of Article 105(2) and 105(4) of the Constitution of India. The very fact that Speaker can say ‘no’ with regard to any parliamentary material, it has to be assumed that they operate as total bar on use of parliamentary material as evidence. The protection which is extended to a Member of Parliament is also extended to the Parliamentary proceedings and Parliamentary reports. H

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14. Shri Colin Gonsalves, learned senior counsel appearing for the petitioner submits that the petitioner does not intend to challenge any part of the Parliamentary Committee Report. The Writ Petitioner seeks nothing which may give rise to any question of breach of Parliamentary privileges. The writ petitioner is not asking this Court to take any facts stated in Parliamentary Report to be conclusive except which is permissible under Section 57 of Evidence Act, 1872. As per the Evidence Act, 1872, the Parliamentary proceedings are public documents which are admissible in evidence. The petitioner does not ask for issuing any mandamus to enforce the Parliamentary Committee Report. The cases cited by Shri Harish Salve in support of his submissions relate to breach of privileges of members of Parliament whereas present is not a case involving any breach of any privileges of a member of Parliament. Neither any question is being raised in the Writ Petition questioning any action or conduct of any member of Parliament nor petitioner is asking to initiate any proceeding against any member of Parliament. He submits that facts noticed and stated in Parliamentary report can very well be relied. The D Parliament by its procedure permits the Committee Report to be filed in the Court, hence there is no prohibition in the Court in looking into the Parliamentary Report.

15. It is further submitted that in the present case, it is the Executive, which is trying to protect itself taking shield of Parliamentary privileges whereas Parliament does not take objection or offence of its E reports being relied and used. When the reports are published by Parliament the process is over and thereafter there is no prohibition on reports being filed as evidence and used by all concern. This court should follow the principles of the comity of the institution instead of relying on principles of separation of power and conflict of the institution. Under F the Right to Information Act, the Parliamentary Reports can be sought for and used by all concern. The present is an age of transparency, in which period the respondent cannot be heard in saying that benefits of report should be blacked out from the courts.

16. The 72nd and 81st Parliamentary Committee Reports play a G very important role since they unearth the events of the illegal vaccination done on poor and malnourished young tribal girls and further it has commented adversely on the role of Government agencies such as ICMR and DGCI and the State of Andhra Pradesh and Gujarat. The Government

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A officials had appeared before the Parliamentary Committee and admitted several wrong doings.

17. Shri Anand Grover, learned senior advocate appearing for petitioners in Writ Petition (C) No.921 of 2013 has adopted most of the submissions of Shri Colin Gonsalves but has raised certain additional submissions. Shri Grover submits that truth and contents of documents are two entirely different things. When document is admitted what is proved is document and contents and not the truth. He submits that there is no question of challenging the findings of the Parliamentary Committee’s Report nor the reports are being questioned in this Court. Shri Grover has also referred to several English cases as well as judgments of Australian High Court, U.S. Supreme Court and of this Court. Referring to Section 16(3) of the Australian Parliamentary Privileges Act 1987, Shri Grover submits that law as applicable in Australia by virtue of Section 16(3) is not applicable in India nor has been accepted as law applicable in United Kingdom. He submits that Parliamentary D Committee Report which is a measure of social protection should be looked into by the Court while rendering justice to the common man especially in Public Interest Litigation.

18. Shri Grover further submits that Parliamentary Committee Reports can be relied only when they are published and becomes a E public document. He submits that statements can be looked into from the Parliamentary Committee Report but not the inferences and findings. The Parliamentary Committee Reports have been obtained from the House and no kind of privilege is involved.

19. Shri Shyam Divan, learned senior advocate appearing for PATH F submits that PATH is a non-profit body operating in area of health. Referring to Section 57 of the Evidence Act, Shri Divan Submits that sub-section (4) of Section 57 uses the phrase ‘course of proceeding’. He submits that the expression ‘course of proceeding’ does not comprehend the Parliamentary reports. He submits that when in this Court anyone traverses or controverts a Parliamentary Committee G Report, it is not in the interest of the comity of the institutions. He submits that references to Parliamentary proceedings are possible only in two areas i.e. in interpreting a Legislation and Statement of a Minister. He submits that entire report is to be examined as a whole. The answering respondent in Writ Petition (C) No.921 of 2013 in its counter affidavit H

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has challenged the veracity of the findings of the Parliamentary Standing A Committee Report. The Parliamentary Committee is the functional organ of the Parliament which also enjoys the privileges and immunity provided under Article 105(2) of the Constitution of India. The reports of Parliamentary Committee are not amenable to judicial review. Parliamentary Standing Committee Reports are not to be relied in court B proceedings in as much as traversing or contesting the content of report, it may cause breach of Parliamentary privileges under Article 105 and Article 122 of the Constitution of India. Challenge to such reports may invite contempt proceedings by Parliament for breach of privileges. The Parliamentary reports cannot be basis for any action in law both criminal and civil in any court including Writ Petition or Public Interest Litigation. C

20. Shri Gourab Banerji, learned senior advocate, replying the submissions of Shri Colin Gonsalves and Shri Anand Grover, submits that recommendations and conclusions of Parliamentary Committee Reports cannot be relied. A moment there is a fact finding in report, it cannot be looked into. D

21. We have considered above submissions and perused the record. For answering the two questions referred to this Constitution Bench, as noted above, we need to consider the following issues: a. Whether by accepting on record a Parliamentary Standing Committee’s Report by this Court in a case under Article 32 E or 136, any privilege of Parliament is breached. b. In the event, a Parliamentary Standing Committee’s Report can be accepted as an evidence, what are the restrictions in its reference and use as per the parliamentary privileges enjoyed by the Legislature of this country. F c. Whether in traversing and questioning the reports, the private respondents may invite a contempt of House.

22. The above issues being inter-connected, we proceed to examine all the issues together. While considering the above issues, we have G divided our discussion in different sub-heads/ topics for overall understanding of parliamentary privileges enjoyed by the Indian Legislature.

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A A. PARLIAMENTARY PRIVILEGES

23. The origin and evolution of parliamentary privilege is traceable from High Court of British Parliament. In the early period of British History, the High Court of Parliament assisted the Crown in his judicial functions. The High Court of Parliament started sitting in two parts i.e. B House of Lords and House of Commons. Gradually, both the Houses claimed various privileges which were recognised. Some of the privileges were claimed by both the Houses as rights from ancient times and some of the privileges were statutorily recognised. A significant parliamentary privilege is recognised and declared by Article IX. Bill of Rights, 1688 which conferred on ‘proceedings in Parliament protection from being C ‘impeached’ or ‘questioned’ in any court or place out of Parliament’. By the end of 19th Century most of the parliamentary privileges of House of Commons were firmly established and recognised by the Courts also.

24. Erskine May in his treaties ‘Parliamentary Practice’, Twenty-fourth Edition’ has elaborately dealt with the privileges of D Parliament and all other related aspects. In Chapter XII of the Book, Erskine May states about what constitutes the privilege: “Parliamentary privilege is the sum of certain rights enjoyed by each House collectively as a constituent part of the High Court of Parliament; and by Members of each House E individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Some privileges rest solely on the law and custom of Parliament, while others have been defined by stature.”

F 25. The term ‘parliamentary privilege’ refers to the immunity and powers possessed by each of the Houses of the Parliament and by the Members of the Parliament, which allow them to carry out their parliamentary functions effectively. Enumerating few rights and immunities Erskine May states: G “Certain rights and immunities such as freedom from arrest or freedom of speech belong primarily to individual Members of each House and exist because the House cannot perform its functions without unimpeded use of the services of its Members. Other rights and immunities, such as the power to punish for contempt and the power to regulate its own H

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constitution, belong primarily to each House as a collective body, for the protection of its Members and the vindication of its own authority and dignity. Fundamentally, however, it is only as a means to the effective discharge of the collective functions of the House that the individual privileges are enjoyed by Members. The Speaker has ruled that parliamentary privilege is absolute. When any of these rights and immunities is disregarded or attacked, the offence is called a breach of privilege, and is punishable under the law of Parliament. Each House also claims the right to punish contempts, that is, actions which, while not breaches of any specific privilege, obstruct or impede it in the performance of its functions, or are offences against its authority or dignity, such as disobedience to its legitimate commands or libels upon itself, its Members or its officers. The power to punish for contempt has been judicially considered to be inherent in each House of Parliament not as D a necessary incident of the authority and functions of a legislature (as might be argued in respect of certain privileges) but by virtue of their descent from the undivided High Court of Parliament and in right of the lex et consuetudo parliamenti.” E

26. The Halsbury’s Laws of England, Fifth Edition Vol. 78, while tracing the ‘origin and scope of privileges’, states following: “1076. Claim to rights and privileges. The House of Lords and the House of Commons claim for their members, both individually and collectively, certain rights and privileges which are necessary to each House, without which they could not discharge their functions, and which exceed those possessed by other bodies and individuals. In 1705 the House of Lords resolved that neither House had power to create any new privilege and when this was communicated to the Commons, that House agreed. Each House is the guardian of its own privileges and claims to be the sole judge of any matter that may arise which in any way impinges upon them, and, if it deems it advisable, to punish any person whom it considers to be guilty of a breach of privilege or a contempt of the House.” H

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A 27. The privileges of the Indian Legislatures have also gradually developed alongwith the progress in the constitutional development of the country. The Government of India Act, 1919 and 1935 constitute successive milestone in the development of the legislative bodies in India. The Government of India Act, 1935 has been referred to as Constitution Act by Privy Council. B

28. Dr. B. R. Ambedkar, the Chairman of the Drafting Committee while debating on draft Article 85(Article 105 of the Constitution of India) and draft Article 169(Article 194 of the Constitution of India) has referred to Erskine May’s ‘Parliamentary Practice’ as a source book of knowledge with regard to immunities, privileges of Parliament. The Constitution of C India by Article 105 and Article 194 gives constitutional recognition of parliamentary privileges. We now proceed to examine the constitutional provisions pertaining to parliamentary privileges.

29. Article 105 of the Constitution of India deals with ‘powers, privileges and immunities of Parliament and its Members whereas Article D 194 deals with the powers, privileges and immunities of State Legislatures and their Members. Both the provisions are identical. To understand the constitutional scheme, it is sufficient to refer to Article 105 of the Constitution of India. Article 105 of Constitution of India as it exists, provides as follows: E “105. Powers, privileges, etc, of the Houses of Parliament and of the Members and committees thereof.- (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament. F (2) No member of Parliament shall be liable to any proceedings in any court in respect of any thing said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, G votes or proceedings. (3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, H

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[shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978]. (4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.”

30. Two amendments were made in Article 105 sub- clause (3) i.e. by Constitution (Forty Second and Forty Fourth Amendment). Article 105 sub-clause (3) in its original form was as follows: C “Article 105(3). In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined “shall be those of the House of Commons of the D Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution.”

31. Sub-clause (1) of Article 105 of the Constitution of India gives constitutional recognition to ‘freedom of speech’ in Parliament. Sub- clause (2) of Article 105 enumerates the privileges and immunities of E Members of Parliament. There is absolute protection to a Member of Parliament against any proceeding in any court, in respect of anything said or vote given by him in Parliament or any committee thereof. In the present case, we are called upon to examine the parliamentary privileges with regard to Parliamentary Standing Committee’s Report. According to sub-clause (2) of Article 105 of Constitution of India no Member of F Parliament can be held liable for anything said by him in Parliament or in any committee. The reports submitted by Members of Parliament is also fully covered by protection extended under sub-clause (2) of Article 105 of the Constitution of India. Present is not a case of any proceeding against any Member of the Parliament for anything which has been said G in the Parliament Committee’s Report.

32. We now proceed to sub-clause (3) of Article 105 of the Constitution of India. Sub-clause (3) of Article 105 of the Constitution of India begins with the words ‘in other respects’. The words ‘in other respects’ clearly refer to powers, privileges and immunities which are H

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A not mentioned and referred to in sub-clauses (1) and (2) of Article 105. Sub-clause (3) of Article 105 makes applicable the same powers, privileges and immunities for Indian Parliament which were enjoyed by the House of Commons at the time of enforcement of the Constitution of India.

29. Having secured the freedom of speech in Parliament to F the Members under clauses (1) and (2), the Constitution, in clause (3) of Article 105, deals with powers, privileges and immunities of the House of Parliament and of the Members and the committees thereof in other respects. The said clause is in two parts. The first part empowers Parliament to define, by law, the powers, privileges and immunities of each House G of Parliament and of the Members and the committees of each House. In the second part, which was intended to be transitional in nature, it was provided that until they are so defined by law the said powers, privileges and immunities shall be those of the House of Commons in the United Kingdom H and of its Members and committees at the commencement of

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the Constitution. This part of the provision was on the same A lines as the provisions contained in Section 49 of the Australian Constitution and Section 18 of the Canadian Constitution. Clause (3), as substituted by the Forty-fourth Amendment of the Constitution, does not make any change in the content and it only seeks to omit future reference to the B House of Commons of Parliament in the United Kingdom while preserving the position as it stood on the date of the coming into force of the said amendment.” B. PRIVILEGES OF HOUSE OF COMMONS

34. What are the privileges of the House of Commons which are also enjoyed by the Indian Parliament by virtue of sub-clause (3) of Article 105 of the Constitution of India need to be examined for answering the issues which have arisen in the present case.

35. While dealing with the privileges of Parliament Erskine May in his treatise ‘Parliamentary Practice’ enumerates the following privileges:

1. Freedom of Speech

2. Freedom from Arrest

3. Freedom of Access E

4. Favourable Construction

5. Privileges with respect to membership of the House

6. Power of commitment for breach of privilege or contempt.

36. Halsbury’s Laws of England in Fifth Edition Vol. 78, while F dealing with the privileges etc. claimed by both the Houses ‘enumerates privileges’:

1. Exclusive cognisance of proceedings

2. Freedom of Speech and proceedings in Parliament G

3. Contempts

4. Freedom from Arrest

5. Protection of witnesses and others before Parliament

6. Power to exclude the public. H

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A 37. The main privileges which are claimed by the House of Commons were noticed by the Constitution Bench of this Court in Special Reference No. 1 of 1964 (UP Assembly Case) AIR 1965 SC 745 in para 73 and 74 which are quoted as below: “73. Amongst the other privileges are: the right to exclude B strangers, the right to control publication of debates and proceedings, the right to exclusive cognizance of proceedings in Parliament, the right of each House to be the sole judge of the lawfulness of its own proceedings, and the right implied to punish its own members for their conduct in Parliament Ibid, p. 52-53. C

74. Besides these privileges, both Houses of Parliament were possessed of the privilege of freedom from arrest or molestation, and from being impleaded, which was claimed by the Commons on ground of prescription....”

D 38. M. N. Kaul and S. L. Shakdher in ‘Practice & Procedure of Parliament’, Seventh Edition published by Lok Sabha Secretariat have enumerated ‘Main privileges of Parliament’ to the following effect: “Main Privileges of Parliament Some of the privileges of Parliament and of its members and E committees are specified in the Constitution, certain statutes and the Rules of Procedure of the House, while others continue to be based on precedents of the British House of Commons and on conventions which have grown in this country. Some of the more important of these privileges are: F (i) Privileges specified in the Constitution: Freedom of speech in Parliament Art. 105(1). Immunity to a member from any proceedings in any court in respect of anything said or any vote given by him in G Parliament or any committee thereof Art. 105(2). Immunity to a person from proceedings in any court in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings Ibid. Prohibition on the courts to inquire into proceedings of H Parliament Art. 122.

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Immunity to a person from any proceedings, civil or criminal, A in any court in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament unless the publication is proved to have been made with malice. This immunity is also available in relation to reports or matters broadcast by means of wireless telegraphy B Art. 361 A. (ii) Privileges specified in Statutes: Freedom from arrest of members in civil cases during the continuance of the session of the House and forty days before its commencement and forty days after its conclusion CPS s. C 135 A-For further details, see sub-head ‘Freedom from Arrest in Civil Cases’ infra. (iii) Privileges specified in the Rules of Procedure and Conduct of Business of the House: Right of the House to receive immediate information of the D arrest, detention, conviction, imprisonment and release of a member Rules 229 and 230. Exemption of a member from service of legal process and arrest within the precincts of the House Rules 232 and 233. E Prohibition of disclosure of the proceedings or decisions of a secret sitting of the House Rule 252. (iv) Privileges based upon Precedents: Members or officers of the House cannot be compelled to give evidence or to produce documents in courts of law, relating to the proceedings of the House without the permission of the House 1R (CPR – 1LS). Members or officers of the House cannot be compelled to attend as witness before the other House or a committee thereof or before a House of State Legislature or a committee thereof without the permission of the House and without the consent of the member whose attendance is required 6R (CPR-2LS). In addition to the above-mentioned privileges and immunities, each House also enjoys certain consequential powers necessary for the protection of its privileges and immunities. H

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39. The privileges of Indian Parliament, which have been enumerated above, are the privileges which were enjoyed by the British House of Commons. From the parliamentary privileges as enumerated above, it is clear that there is a complete immunity to the Members of Parliament from any proceeding for anything said in any committee of the Parliament. Present is not a case where any proceedings are contemplated against any Member of Parliament for anything which has been said in a report of a Committee, involving a breach of any privilege under sub-clause (2) of Article 105 of the Constitution of India.

40. The question to be considered, is as to whether, there is any breach of privileges of Parliament in accepting, referring and relying on a Parliamentary Committee Report by this Court. C. THE ROLE OF PARLIAMENTARY COMMITTEES

G 41. The Parliament is legislative wing of the Union. The Council of Ministers headed by the Prime Minister is collectively responsible to the House of the People. The role of Parliament is thus not confined to mere transacting legislative business. In the representative parliamentary democracy, the role of Parliament has immensely increased and is pivotal H for the governance of the country.

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42. F. W. Maitland in the ‘Constitutional History of England’ A while writing on ‘The Work of Parliament’ stated the following: “....But we ought to notice that the Houses of parliament do a great deal of important work without passing statutes or hearing causes. In the first place they exercise a constant supervision of all governmental affairs. The ministers of the king are expected to be in parliament and to answer questions, and the House may be asked to condemn their conduct..... “

43. Dr. Subhash C. Kashyap in ‘Parliamentary Procedure,’ Second Edition while discussing the functions of the Parliament stated: “Over the years, the functions of Parliament have no longer remained restricted merely to legislating. Parliament has, in fact emerged as a multi-functional institution encompassing in its ambit various roles viz. developmental, financial and administrative surveillance, grievance ventilation and redressal, national integrational, conflict resolution, leadership recruitment and training, educational and so on. The multifarious functions of Parliament make it the cornerstone on which the edifice of Indian polity stands and evokes admiration from many a quarter. “

44. The business of Parliament is transacted in accordance with the rules of procedure as framed under Article 118 of the Constitution of India. Both the Houses of the Parliament have made rules for regulating its procedure and conduct of its business. The Rajya Sabha has framed rules, namely, ‘The Rules of Procedure and Conduct of Business in the Council of States(Rajya Sabha)’, which were brought into force w.e.f. 01.07.1964. The Rules of Procedure and Conduct of Business in Lok F Sabha were framed and published in the Gazette of India Extra-ordinary on 17.05.1952.

45. Various committees of both Rajya Sabha and Lok Sabha are entrusted with enormous duties and responsibilities in reference to the functions of the Parliament. Maitland in ‘Constitutional History of G England’ while referring to the committees of the Houses of British Parliament noticed the functions of the committees in the following words: “.....Then again by means of committees the Houses now exercise what we may call an inquisitorial power. If anything H

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A is going wrong in public affairs a committee may be appointed to investigate the matter; witnesses can be summoned to give evidence on oath, and if they will not testify they can be committed for contempt. All manner of subjects concerning the public have of late been investigated by parliamentary commissions; thus information is obtained which may be used B as a basis for legislation or for the recommendation of administrative reforms.”

46. Chapter IX of the Rajya Sabha Rules dealing with the legislation provides for Select Committees on Bills, procedure of the presentation after report of the Select / Joint Committee. The Rules C provide for various committees including Committee on Subordinate Legislation, Committee on Government Assurances and other committees. Chapter XXII deals with ‘Departmental Related Parliamentary Standing Committees’. Rule 268 which provides for ‘Departmental Select Committees’ is as follows: D “268. Department-related Standing Committees (1) There shall be Parliamentary Standing Committees of the Houses (to be called the Standing Committees) related to Ministries/Departments.

E (2) Each of the Standing Committees shall be related to the Ministries/Departments as specified in the Third Schedule: Provided that the Chairman and the Speaker, Lok Sabha (hereinafter referred to as the Speaker), may alter the said Schedule from time to time in consultation with each other.”

F 47. Rule 270 deals with functions of the Standing Committees which are to the following effect: “270. Functions Each of the Standing Committees shall have the following functions, namely:- G (a) to consider the Demands for Grants of the related Ministries/Department and report thereon. The report shall not suggest anything of the nature of cut motions; (b) to examine Bills, pertaining to the related Ministries/ H

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

48. Rule 277 provides that the Report of the Standing Committee shall have persuasive value. Schedule III of the Rules deals with the ‘Allocation of various Ministries/Departments related to Parliamentary Standing Committee’. At Item No. 7 is ‘Committee on Health and Family Welfare’ which relates to Department of Health and Family Welfare. D

49. Present is a case where Parliamentary Standing Committee which has submitted the report is the Parliamentary Standing Committee on Health and Family Welfare. M. N. Kaul and S. L. Shakdher in their treatise on ‘Practice and Procedure of Parliament’ published by Lok Sabha Secretariat, dealing with the business of Committees stated the following: “Parliament transacts a great deal of its business through Committees. These Committees are appointed to deal with specific items of business requiring expert or detailed consideration. The system of Parliamentary Committees is particularly useful in dealing with matters which, on account of their special or technical nature, are better considered in detail by a small number of members rather than by the House itself. Moreover, the system saves the time of the House for the discussion of important matters and prevents Parliament G from getting lost in details and thereby losing hold on matters of policy and broad principles.”

50. The reports which are submitted by the Departmental Parliamentary Standing Committees are reports of matters entrusted to it by Parliament, by the Speaker. Parliament to which Council of Ministers H

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