REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 558 OF 2012

Kalpana Mehta and Others Petitioner(s)

  Versus

Union of India and Others Respondent(s)

W I T H

WRIT PETITION (CIVIL) NO. 921 OF 2013

J U D G M E N T

Dipak Misra, J.

Though the present writ petitions were preferred in the

years 2012 and 2013 and the debate had centered around on

many an aspect relating to action taken by the Drugs

Controller General of India and the Indian Council of Medical

Research (ICMR) pertaining to approval of a vaccine, namely,

2

Human Papilloma Virus (HPV) manufactured by the

respondent No. 7, M/s. GlaxoSmithKline Asia Pvt. Ltd. and

the respondent No.8, MSD Pharmaceuticals Private Limited,

respectively for preventing cervical cancer in women and the

experimentation of the vaccine was done as an immunization

by the Governments of Gujarat and Andhra Pradesh (before

bifurcation, the State of Andhra Pradesh, eventually the State

of Andhra Pradesh and the State of Telangana)  with the

charity provided by the respondent No.6, namely, PATH

International.   The issue also arose with regard to the

untimely death of certain persons and grant of

compensation. Certain orders were passed by this Court from

time to time.   

2. A stage came in the life span of this litigation, which is

still in continuation, when the Court  vide  order dated 12th

August, 2014, had posed the following questions:­

“i) Whether  before the  drug was accepted  to  be used  as  a vaccine in India, the  Drugs  Controller General of India and the ICMR had followed the procedure for said introduction?

ii) What is the action taken after the Parliamentary Committee had submitted the 72nd report on 30.08.2013?

iii) What are the reasons for choosing certain

3

places in Gujarat and Andhra Pradesh?

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

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

vi) The girls who were administered the vaccine, whether proper consent has been taken from their parents/guardians, as we have been apprised at the Bar that the young girls had not reached the age of majority?

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

3. In the said order, the Court had also directed as

follows:­

“At this juncture, we are obligated to state the Union of India, who is required to assist this Court in proper perspective, shall direct its competent authority to  produce  the file  by  which  the  Drugs Controller General of India had approved the vaccine for introduction in India.  Mr. Suri, learned senior counsel for the Union of India will produce the said file.   Additionally, the relevant documents shall also be provided to the concerned counsel for the petitioners.”

4. In the course of proceedings, affidavits were filed by the

Union of India and the State of Gujarat.  Learned counsel for

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the petitioners, Mr. Colin Gonsalves in Writ Petition (C) No.

558 of 2012 and Mr. Anand Grover in Writ Petition (C)   No.

921 of 2013 had drawn the attention of this Court to the 81st

Report dated 22nd  December, 2014 of the Parliamentary

Standing Committee.  Be  it  noted,  when the report  of the

Parliamentary Standing Committee was produced, the

question arose with regard to  the “concept of  consent” for

administration of vaccine and the resultant illness suffered

by the victims  and  such  other issues  and the  Court  had

issued certain directions for filing of affidavits pertaining to

steps that have been taken by the concerned Governments

keeping in view the various instructions given from time to

time including  what  has  been  stated in the report of the

Parliamentary Standing Committee.

5. It is worthy to note here that certain affidavits were filed

about the safety measures being undertaken with regard to

the consent and the method of trial and the improvements

made thereon.   In essence, the stand of the Union of India

and the States was that the vaccine was necessary and steps

have been taken to avoid any kind of hazards.   That apart,

the factual allegations  made by the petitioners  were also

5

controverted.

6. On 18th  November,  2015,  an  issue was raised by  the

learned senior counsel appearing for the respondent No. 8,

MSD  Pharmaceuticals Private Limited and  by the learned

Additional Solicitor General whether this Court while

exercising the power of judicial review or its expansive

jurisdiction under Article 32 dealing with the public interest

litigation, can advert to the report of the Parliamentary

Standing Committee and on that basis issue directions.  After

the said issue was posed, the learned counsel for the parties

sought time to file written notes of submissions and argue

the matter.   Regard being had to importance of the matter,

assistance of the learned Attorney  General for India  was

sought.

7. Mr. Mukul Rohatgi, learned Attorney General for India

has filed a written note of submission contending, inter alia,

that the reports of the Parliamentary Standing Committee are

at best external aids of construction in order to determine the

surrounding circumstances or the historical facts for the

purpose of  discerning the mischief  sought  to be remedied,

but  not for  any other  purpose.  He has referred to  certain

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authorities which we shall refer to in the course of our

deliberation.  We may clarify  that though Mr.  Rohatgi  has

filed  the  written note of  submissions, today we have been

assisted by Mr. Ranjit Kumar, learned Solicitor General, Mr.

A.K. Panda and Mr. Ajit Kumar Sinha, learned senior counsel

and Mrs. Rekha Pandey, learned counsel on behalf of Union

of India.

8. Mr. Grover and Mr. Gonsalves, learned senior counsel

appearing for the petitioners,  who intend to reply on the

report of the Parliamentary Standing Committee submitted

that looking at the report of the Parliamentary Standing

Committee by this Court in a writ petition preferred under

Article 32 of the Constitution is only to be apprised about

facts to  arrive  at  a  conclusion  for the  purpose of issue of

necessitous directions and there cannot be absolute rule that

it cannot be looked at.   According to them, there is no

impediment to rely on the said report as the reports of the

Parliamentary  Standing Committee  are  put  on  the  website

and in such a situation, the Court can always take aid of the

report not only for the purpose of understanding the

legislative intendment of a legislation, but also for taking the

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facts into consideration to issue any prerogative writ.

Learned senior counsel would contend that as  long as the

reference to report does not violate the freedom of speech of

the  members  of the  Committee or there is  no  attempt to

impugn the report or criticize the same, reliance on the same

should not be prohibited.  It is urged by Mr. Gonsalves that

the role of the Parliament in the modern democracy has gone

beyond the traditional concept and the perception is to have

a transparent society and when there is access to the report,

there is no warrant not to utilize the same in a proceeding

before the Court.

9. Learned senior counsel appearing for the Union of India

would in reply submit that the arguments advanced by the

learned counsel  for the petitioners are to be tested on the

constitutional parameters and various Articles of the

Constitution are to be read in proper perspective. It is

asserted by him that the constitutional scheme does not

favour the interpretation which is sought to be placed by the

learned counsel for the petitioners.  According to the learned

counsel for Union of India, the report of the Parliamentary

Standing Committees are meant to guide the functioning of

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the departments and work as a precursor to the debate in

Parliament but not meant to be used in court as it does not

countenance any contest in a court of law.  

10. To appreciate the controversy, we may usefully refer to

the Rules of Procedure and  Conduct of Business of Lok

Sabha Rules (for short, 'the  Rules').  Rule  2  of the  Rules

defines the “Parliamentary Committee”.   For the sake of

completeness, we reproduce the same:­

““Parliamentary Committee” means a Committee which is appointed or elected by the House or nominated by the Speaker and which works under the direction of the Speaker and presents its report to the House or to the Speaker and the Secretariat for which is provided by the Lok Sabha Secretariat.”

11. Chapter 26 of the Rules deals with Parliamentary

Committees and the matters regarding appointment,

quorum, decisions of the committee, etc.  There are two kinds

of Parliamentary Committees: (i) Standing Committees, and

(ii) Adhoc Committees.   The Standing Committees are

categorized by their nature of functions. The Standing

Committees of the Lok Sabha are as follows:­

“a) Financial Committees;

b) Subject Committees or Departmentally related standing committees of the two houses;

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c) Houses Committee i.e. the Committees relating to the day to day business of the House;

d) Enquiry Committee;

e) Scrutiny Committees;

f) Service Committees;

vi) A list  of  Standing Committees  of  Lok Sabha along  with its  membership is reproduced  as under:

Name of Committee Number of Members

Business Advisory Committee 15

Committee of Privileges 15

Committee on Absence of Members from the Sittings of the House Committee on Empowerment of Women

15

Committee on Estimates 30

Committee on Government  Assurances

15

Committee on Papers Laid on the Table  

15

Committee on Petitions 15

Committee on Private Members Bills and Resolutions

15

Committee on Public Accounts 22

Committee on Public  Undertakings

22

10

Committee on Subordinate  Legislation

15

Committee on the Welfare of Scheduled Castes and Scheduled Tribes

30

House Committee 12

Joint Committee on Offices of  Profit  

15

Joint Committee on Salaries and Allowances of Members of Parliament

15

Library Committee 9

Rules Committee 15

vi) Apart from the above, there are various departmentally related Standing Committees under various ministries.”

12. From the aforesaid, it is quite clear that there are

various departmentally  related Standing Committees under

various Ministries.  It is apt to note here that in the case at

hand, Rule 270 of the Rules which deals with the functions

of the Parliamentary Committee meant for Committees Rajya

Sabha is relevant.  It reads as follows:­

“270. Functions  

Each of the Standing Committees shall have the following functions, namely:—  

(a)  to consider the  Demands for  Grants of the related  Ministries/  Departments and report

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thereon. The report shall not suggest anything of the nature of cut motions;  

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

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

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

13. Rule 271 provides for applicability of provisions relating

to functions.   Rule 274 deals with the report of the

Committee.  The said Rule reads as follows:­

“274. Report of the Committee  

(1)  The report of the Standing Committee shall be based on broad consensus.

(2)  Any member of the Committee may record a minute of dissent on the report of the Committee.

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

14. Rule 274(3) is extremely significant, for it provides that

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the report of the Committee together with the Minutes of the

dissent, if any, is to be presented to the House.   Rule 277

stipulates that the report is to have persuasive value.   The

said Rule is as follows:­

“277.  Reports to have persuasive value.— The report of a Standing Committee shall have persuasive value and shall be treated as considered advice given by the Committee.”

15. Relying on the said Rule, it is  argued by the  learned

counsel for the petitioners that  the report of the Standing

Committee has a persuasive value and hence, it can be taken

note of for the purpose of fact finding by this Court.  The

learned counsel for the  Union of India, on the contrary,

would contend  that  as  per the  scheme of the  Rules, it is

meant to have persuasive value and considered as an advice

given by the Standing Committee to the Parliament.

16. It is submitted on behalf of the Union of India that the

Rules 277 – 279 deal with submission of the Report of the

Committee and provide that if  no time frame is given, the

same would be submitted within a month from the

appointment of the Committee and the reports shall be

presented to the  House  by the  Chairperson. It is further

urged that the reports submitted by the different Committees

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are examined/debated by the House and only thereafter they

are adopted. Our attention has been drawn to Rule 277 and

Rule  278 made  for  Lok Sabha which provide for  Scope of

Advice regarding reports submitted by Select/Joint

Committees. In essence, the purpose of reliance  is, it is  a

matter of concern to the debates in the Parliament.

17. At this juncture, we may look at the origin and working

of the Parliamentary Committee.   The Committee system in

India, as has been stated in “The Committee System in

India : Effectiveness in Enforcing Executive Accountability”,

Hanoi Session, March 2015, is as follows:­

“The origin of the Committee system in India can be traced back to the Constitutional Reforms of 1919. The Standing Orders of the Central Legislative Assembly provided for a Committee on Petitions relating to Bills, Select Committee on Amendments of Standing Orders, and Select Committee on Bills. There was also  a  provision  for  a Public  Accounts Committee and a Joint Committee on a Bill. Apart from Committees of the Legislative Assembly, members of both Houses of the Central Legislature also served on  the  Standing Advisory Committees attached to various Departments of the Government of India. All these committees were purely advisory in character and functioned under the control of the Government with the Minister­incharge of the Department acting as the Chairman of the Committee.  

 After the Constitution came into force, the position of the Central Legislative Assembly changed

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altogether and the committee system underwent transformation. Not only did the number of committees increase, but their functions and powers were also enlarged.  

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

18. In the said document in respect of Standing Committees

of Parliament, it has been observed:­

“Standing Committees are those which are periodically elected by the House or nominated by the  Speaker,  Lok  Sabha,  or the  Chairman,  Rajya Sabha, singly or jointly and are permanent in nature. In terms of their functions, Standing Committees may be classified  into two categories. One category of Committees like the Departmentally Related Standing Committees (DRSCs), Financial Committees  etc.,  scrutinize the functioning  of the Government  as  per their respective  mandate.  The other category of Committees like the Rules Committee, House Committee, Joint Committee on

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Salaries and Allowances, etc. deal with matters relating to the Houses and members.”

19. We have referred to the same as a holistic reading of the

said document conveys that the Parliamentary Standing

Committee makes the executive accountable to it on certain

issues. As is indicated hereinbefore,  Mr. Grover and  Mr.

Gonsalves, learned senior appearing for the writ petitioners,

would contend that the executive being accountable to the

Parliamentary Standing Committee, the report of the

Committee which  is  in the public domain and hence, that

can be relied upon by them to buttress a fact situation and in

any way, establish it. Learned counsel for the Union of India

and the contesting respondents,  per contra, would urge that

the Parliamentary Standing Committee report cannot be

tendered as a piece of evidence to prove a fact and once it is

referred to, it invites a contest and criticism.    

20. We may fruitfully state that the procedure of the

Committee is neither inquisitorial nor adjudicative. It has its

own character. The procedure is  sui generis. In the

Westminister system, Parliament also deals with the matter

of accountability of the executive and standing Committees of

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Parliament, on many an occasion, examine the propriety and

wisdom of the conduct of the executive. The reports of the

Committees are for the assistance of Parliament. The

procedure for drawing up such reports, is entirely a matter

for the Committee and it  has authority to receive evidence

from witnesses – but it is for their own assistance.  No person

has a right to be heard by the Committee even if the

Committee is  examining  a  matter  which may result in  an

adverse comment on the conduct of such person. The

principles of natural justice are not applicable.

21. It is apt to note here that Mr. Grover and Mr. Gonsalves

have placed reliance on the authority of  Raja Ram Pal v.

Hon'ble Speaker, Lok Sabha and others1, wherein in

paragraph 431(a), it has been said:­

“(a) Parliament is a coordinate organ and its views do deserve defence even while its acts are amenable to judicial scrutiny.”

22. Learned counsel for the petitioners have also placed

reliance on a two­Judge  Bench decision in  Krishan Lal

Gera v. State of Haryana and others2.   In the said case,

1 (2007) 3 SCC 184 2  (2011) 10 SCC 529

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the report submitted by the Parliamentary Standing

Committee on Human Resources Development has been

referred to.  They have also cited certain English authorities

which relate to reliance  upon the report in trials  without

impugning the same.

23. At this stage, we may gainfully refer to the authorities

cited by the learned counsel for Union of India and the

contesting respondents.  In A.K. Roy v. Union of India and

others3 , it has been held thus:­

“But  we find ourselves unable to intervene in a matter of this nature by issuing a mandamus to the Central Government obligating it to bring the provisions of Section 3 into force.   The Parliament having left to the unfettered judgment of the Central Government the  question as regards the time for bringing the provisions of the 44th Amendment into force, it is not for the court to compel the government to do that which, according to the mandate of the Parliament, lies in its discretion to do  when  it considers it  opportune to  do it.  The executive is responsible to the Parliament and if the Parliament considers that the executive has betrayed its trust by not bringing any provision of the Amendment into force, it can censure the executive. It would be quite anomalous that the inaction of the executive should have the approval of the Parliament and yet we should show our disapproval of it by issuing a  mandamus.   The court's power of judicial review in such cases has to be  capable  of  being  exercised  both  positively  and negatively, if needed it has that power: positively, by

3  (1982) 1 SCC 271

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issuing a mandamus calling upon the government to act and negatively by inhibiting it from acting.  If it were permissible to the court to compel the government by a mandamus to bring a constitutional amendment into force on the ground that the government has failed to do what it ought to have done, it would be equally permissible to the court to prevent the government from  acting, on some such ground as that, the time was not yet ripe for issuing the notification for bringing the Amendment into force.”

24. The aforesaid passage shows that the Court does not

have the power to direct the Parliament to bring an Act into

force. Drawing an analogy, it is canvassed that as the Court

cannot issue a writ to implement the report of the

Parliamentary Standing Committee or rely on it for the

purpose of issuance of a writ.

25. Ms. Manisha Singh, learned counsel appearing for the

respondent No.6, PATH International, contended that the

report of the Parliamentary Standing Committee cannot be

assailed as has been held in  M.S.M. Sharma v. Dr. Shree

Krishna Sinha and Others4.  In this regard, she has drawn

our attention to paragraph 431(o) of  Raja Ram Pal  (supra)

which states thus:­

“The truth or correctness of the material will not be

4  AIR 1960 SC 1186

19

questioned by the court nor will it go into the adequacy of  the material or substitute  its opinion for that of the legislature.”

26. Reliance has been placed on the aforesaid conclusion to

lay  thrust  on the  point that there cannot  be a combat  or

dispute over the report of the Parliamentary Standing

Committee in a court of law and, therefore, the respondents

are debarred from contesting the same and that is the

singular ground not to place reliance upon the same.

27. In  Sarojini Ramaswami vs. Union of India and

others5, the Court observed that a finding of guilt recorded

by the Parliamentary Standing Committee on the charges is

not  conclusive and final  and the Parliament  can still  hold

that  charges  levelled  against the  person concerned do not

amount to  misbehavior and  may  decide  not to adopt the

motion.  Though  the  decision  was rendered in  a  different

context, it has been taken aid of to bolster the proposition

that the report of the Parliamentary Standing Committee

does not attain finality, inasmuch as it is subject to debate in

the  Parliament and subject to  further  action taken by  the

Parliament.

28. Inspiration has also been drawn from the authority in

5  (1992) 4 SCC 506

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Arun  Kumar  Agrawal vs.  Union  of India  and  others6,

wherein it has been stated in the context of the report of the

Comptroller and Auditor  General of India (CAG) that the

report of the CAG is always subject to Parliamentary debates

and it is possible that the Parliamentary Accounts Committee

can accept the  Ministry's objection to the  CAG report or

reject the report of the CAG.   What has been stated is that

CAG though  indisputably is  an  independent  constitutional

functionary,  yet it is for the  Parliament to  decide whether

after receiving the report, i.e. the  Parliamentary  Accounts

Committee to make its comments on the CAG's report.   The

emphasis is on the  areas  of demarcation  of power of the

Parliament and its supremacy within its sphere.

29. On behalf of the Union of India, two decisions, namely,

R v.  Murphy7  and  Office of Government Commerce v.

Information Commissioner8 have been referred to highlight

that there has been exclusion of discussion of the

Parliamentary report.  

30. At this juncture,  we  may note  with profit, how this

Court has taken aid of the debates of the Constituent

6  (2013) 7 SCC 1 7  (1986) 5 NSWLR 18 8   [2008] EWHC 737 (Adnin)

21

Assembly, Parliamentary notes, speeches given in the

Parliament and the report of the Parliamentary Standing

Committee.   In Indra Sawhney v. Union of India9, Jeevan

Reddy,  J.,  speaking for the  majority,  held that  debates in

Constituent Assembly can be relied upon as an aid to

interpretation of a constitutional provision and for the said

purpose the learned Judge relied upon the decisions in

Madhu Limaye, In re10,  Union of India v. Harbhajan

Sinhg Dhillon11  and several opinions in  Kesavananda

Bharati Sripadagalvaru v. State of Kerala and

another12.

31. In  Manoj Narula v. Union of India13, the majority of

the Constitution Bench relied on the Constituent Assembly

debates while dealing with the concept of constitutional

trust.

32. As the Constituent Assembly debates are referred to for

interpretation of a constitutional provision and especially to

understand the context, similarly judicial notice of

9   1992 Supp (3) SCC 217 10  (1969) 1 SCC 292 11  (!971) 2 SCC 779 12  (1973) 4 SCC 225 13  (2014) 9 SCC 1

22

parliamentary proceedings can be taken note of for the

purpose of appreciating the intention of the legislature.

33. In  Jyoti  Harshad  Mehta  and  others v.  Custodian

and  others14, it has been  held that reports of the Joint

Parliamentary Committee are admissible only for the purpose

of tracing the legal history of the legislation.  

34. In this regard, we  may also usefully state that the

speeches of  Ministers  in the Parliament are referred to on

certain occasions for limited purposes.  A Constitution Bench

in State of W.B. v. Union of India15 has held:­

“It is however well­settled that the Statement of Ob­ jects and Reasons accompanying a Bill, when intro­ duced in Parliament, cannot be used to determine the true meaning and effect of the substantive pro­ visions of the statute. They cannot be used except for the limited purpose of understanding the back­ ground and the antecedent state of affairs leading up to the legislation. But we cannot use this state­ ment as an aid to the construction of the enactment or to show that the legislature did not intend to ac­ quire the proprietary rights vested in the State or in any way to affect the State Governments’ rights as owners of minerals. A statute, as passed by Parlia­ ment, is the expression of the collective intention of the legislature as a whole, and any statement made by an individual, albeit a Minister, of the intention and objects of the Act cannot be used to cut down the generality of the words used in the statute.”

14  (2009) 10 SCC 564 15   AIR 1963 SC 1241

23

35. In  K.P. Varghese v. Income­tax Officer, Ernakulam

and  another16  the  Court  while referring to the budget

speech of the Minister ruled:­  

“Now it is true that the speeches made by the Mem­ bers  of the  Legislature  on  the floor  of the  House when a Bill for enacting a statutory provision is be­ ing debated are inadmissible for the purpose of in­ terpreting the statutory  provision  but the speech made by the Mover of the Bill explaining the reason for the introduction of the Bill can certainly be re­ ferred to  for the purpose of  ascertaining  the mis­ chief sought to be remedied by the legislation and the object and purpose for which the legislation is enacted. This is in accord with the recent trend in juristic thought not only  in western countries but also in India that interpretation of a statute being an exercise in the ascertainment of meaning, every­ thing which is logically relevant should be admissi­ ble. In fact there are at least three decisions of this Court, one in  Loka  Shikshana  Trust  v.  CIT17, the other  in  Indian Chamber of  Commerce  v.  Commis­ sioner of  Income Tax18  and the third in  Additional Commissioner of Income Tax  v.  Surat Art Silk Cloth Manufacturers’ Association19 where the speech made by the Finance Minister while introducing the exclu­ sionary clause in Section 2, clause (15) of the Act was relied upon by the Court for the purpose of as­ certaining what was the reason for introducing that clause.”

36. Similar references have also been  made in  Ramesh

Yeshwant Prabhoo v. Prabhakar Kashinath Kunte20.

16   AIR 1981 SC 1922 17   AIR 1976 SC 10 18  AIR 1976 SC 348 19  AIR 1980 SC 387 20  (1996) 1 SCC 130

24

That apart, Parliamentary debates have also been referred to

appreciate the context relating to the construction of a

statute in Novartis AG v. Union of India21, State of M.P. v.

Dadabhoy’s New Chirimiri Ponri Hill Colliery Co. (P)

Ltd.22, Union of India v. Steel Stock Holders’ Syndicate23,

K.P. Varghese (supra) and  Surana Steels (P) Ltd. v. CIT24.

37. We have referred to these authorities to highlight that

the said speeches have been referred to or not referred to for

the   purposes indicated therein and when the meaning of a

statute is not clear or ambiguous, the circumstances that led

to passing of the legislation can be looked into to ascertain

the intention of the legislature.  

38. Thus observed, the reference to Constituent Assembly

debates, reports of the  Parliamentary  Standing  Committee

and the speeches made in the Parliament or for that matter,

debates held in Parliament are only meant for understanding

the Constitution or the legislation, as the case may be.  It is

quite different than to place reliance upon Parliamentary

Standing Committee report as a piece of evidence to establish

21  (2013) 6 SCC 1 22  (1972) 1 SCC 298 23  (1976) 3 SCC 108 24  (1999) 4 SCC 306

25

a  fact.  We have  been commended  to the  authority  by the

learned counsel appearing for the Union of India reported in

R. v. Secretary of State for Trade and others ex parte

Anderson Strathclyde plc25:­

“In my judgment there is no distinction between us­ ing a report in Hansard for the purpose of support­ ing a cause of action arising out of something which occurred outside the House, and using a report for the purpose of supporting a ground for relief in pro­ ceedings for judicial review in respect of something which occurred outside the  House. In  both  cases the court would have to do more than take note of the fact that a certain statement was made in the House on a certain date.  It would have to consider the statement or statements with a view to deter­ mining  what  was the true  meaning of them,  and what were the proper inferences to be drawn from them.   This, in my judgment, would be contrary to art 9 of the Bill of Rights.   It would be doing what Blackstone said was not to be done, namely to ex­ amine, discuss and adjudge on a matter which was being considered in Parliament. Moreover, it would be an  invasion by the  court  of the right  of  every member of Parliament to free speech in the House with the possible adverse effects referred to by Browne J.”

39.  In this regard, a reference to a three­Judge Bench

decision in State Bank of India through General Manager

v. National Housing Bank and others26 would be apposite.

25  [1983] 2 All ER 233 26  (2013) 16 SCC 538

26

The Court was dealing with an appeal preferred under

Section 10 of the Special Court (Trial of Offences Relating to

Transactions in Securities) Act 27 of 1992.  In the said case,

this Court noticed that the learned Judge of the Special

Court had extensively relied upon the Second Interim of the

Janakiraman Committee27  on the ground that the same was

filed by the first defendant. The Court in that context held:­  

“50.  It is well settled by a long line of judicial au­ thority that the findings of even a statutory commis­ sion appointed under  the Commissions of Inquiry Act, 1952 are not enforceable proprio vigore as held in  Ram Krishna Dalmia  v.  Justice S.R. Tendolkar28

and the statements made before such Commission are expressly made inadmissible in any subsequent proceedings civil or criminal. The leading judicial pronouncements  on  that  question were succinctly analysed by this  Court in  T.T.  Antony  v.  State  of Kerala29, SCC paras 29­34. Para 34 of the judgment inter alia reads:

“34. … In our view, the courts, civil or crimi­ nal, are not bound by the report or findings of the Commission of Inquiry as they have to ar­ rive at their own decision on the evidence placed before them in accordance with law.”

51. Therefore, courts are not bound by the conclu­ sions and findings rendered by such commissions. The statements made before such commission can­ not be used as evidence before any civil or criminal court. It should logically follow that even the conclu­

27  Committee set up by RBI on 30.04.1992 which submitted six reports and the  Final Report was on

    07.05.1993 28  AIR 1958 SC 538 29  (2001) 6 SCC 181

27

sions  based  on  such  statements can  also  not  be used as  evidence in  any  court.  The  Janakiraman Committee is not even a statutory body authorised to collect evidence in the legal sense. It is a body set up by the Governor of Reserve Bank of India obvi­ ously in exercise of its administrative functions,

“…  the Governor, RBI set up a committee on 30­4­1992 to  investigate  into the possible  ir­ regularities in funds management by commer­ cial  banks  and  financial institutions,  and  in particular, in relation to their dealings in gov­ ernment securities, public sector bonds and similar instruments. The  Committee  was re­ quired to investigate various aspects of the transactions of SBI and other commercial banks as well as financial institutions in this regard.”30   

And again:­

“53. The report of such a committee in our view can at best be the opinion of the Committee based on its own examination of the records of the various banks (including the plaintiff and the first defendant) and the statements recorded (by the Committee) of the various persons examined by the Committee. In our considered view the report of the Janakiraman Committee is  not  evidence  within the  meaning  of Evidence Act which the Special Court is bound to follow.”   

40.  We have referred to the said authority as this Court has

thought it appropriate to state following the precedents that

the  report  of  a  statutory  committee cannot  be  received as

evidence of facts stated in the report.  

41. Having dwelled upon this aspect, we may refer to certain

30   See the Janakiraman Committee’s first interim report, May 1992, p. 1.

28

relevant Articles of the Constitution.   Article 105 deals with

with powers, privileges, etc. of the Houses of Parliament and

of the members and committees thereof.  To have a complete

picture, the said Article is reproduced in entirety:­

“105.  Powers,  privileges,  etc.,  of  the Houses of Parliament and of the members and committees thereof.–  (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.

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

(3)  In  other respects, the  powers,  privileges  and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may  from time  to  time be defined by Parliament by law, and, until so defined, 1[shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty­fourth Amendment) Act, 1978.

(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.”

42. What is necessary to understand from Article 105(2) is

29

that no member of the Parliament can be made liable for any

proceeding in any court because of what he has stated in a

committee. The Parliamentary Standing Committee is a

committee constituted under the Rules and what a member

speaks over there is  absolutely  within the  domain of that

committee.  Freedom of speech of a member of a Committee

is only guided subject to provisions of the Constitution and

the Rules and standing orders regulating the procedure of

Parliament.   It is also seemly to  note that Article 105(4)

categorically lays the postulate that clauses 1, 2 and 3 shall

apply to any committee of the Parliament.   

43.  Article 118 deals with rules of procedure.   Clause 1 of

the said Article stipulates that each House of Parliament may

make rules  for  regulating,  subject to  the provisions of the

Constitution, its procedure and the conduct of its business.

Thus, the said Article empowers the Parliament to regulate

its procedure apart from what has been stated directly in the

Constitution.   

44.  Article 121 provides restriction on discussion in

Parliament.  The same is extracted below:­

30

“121. Restriction on discussion in Parliament.– (1) No discussion shall take place in Parliament with respect to the conduct of any Judge of the  Supreme Court  or  of  a  High  Court in the discharge  of  his  duties  except  upon a  motion  for presenting an address to the President praying for the removal of the Judge as hereinafter provided.”

45. The aforesaid Article makes it vivid that the Parliament

shall not discuss as regards the conduct of any Judge of the

Supreme Court or of  a High Court  in the discharge of his

duties, except upon a  motion been presented before the

President of India praying for removal of the Judge as

provided  in  the Constitution.  Thus, the discussion of the

Parliament is restricted by a constitutional provision.  

46. Article  122 stipulates a restraint  on courts to  inquire

into proceedings of the Parliament.   The said Article being

absolutely significant is reproduced below:­

“122. Courts not to inquire into proceedings of Parliament.–  (1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.

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

47. The purpose of referring to the aforesaid Articles is that

31

while exercising the power of judicial review or to place

reliance on the report of the Parliamentary Standing

Committee, the doctrine of restraint has to be applied by this

Court as required under the Constitution.  What is argued by

the learned counsel for the  petitioners is that there is  no

question of  any kind of judicial review  from this  Court  or

attributing anything on the conduct of any of the members of

the Committee, but to look at the report for understanding

the controversy before us.   The submission “looking at the

report,” as we perceive, is nothing but placing reliance

thereupon.  The view  of a  member  of the  Parliament or a

member of the Parliamentary Standing Committee who

enjoys freedom of speech and expression within the

constitutional parameters and the rules or regulations

framed by the Parliament inside the Parliament or the

Committee is not to be adverted to by the court in a lis.  

48. In this regard, it is appropriate to refer to the

observations made by the House of Lords in Hamilton v. Al

Fayed31:­

“The Court of Appeal held, first, that apart from any question of parliamentary privilege the principle in

31   [2001] 1 A.C. 395

32

Hunter’s case [1982] AC 529 had no application: a parliamentary decision was not analogous to a deci­ sion of the  court.  Next, the  Court  of  Appeal  held that the proceedings before the PCS, his report and its acceptance by the CSP were all “parliamentary proceedings” and therefore any attempt to investi­ gate or challenge any of the procedures adopted constituted a breach of parliamentary privilege: they constituted a “questioning” of parliamentary proce­ dures. They therefore held that the judge had been in error  and  had  himself breached  parliamentary procedure by criticizing the procedures adopted by the PCS.  The conclusion of the Court of Appeal on these two points met the concerns of the Solicitor General.   The Court of Appeal were clearly correct on these points and they  were not further chal­ lenged on appeal to your Lordship’s House….

Presumably because of the way the case was pre­ sented to them, the Court of Appeal never consid­ ered the relevant question (viz whether there should be a fair trial stay) raised by question 2 of the sum­ mons. The only way in which Mr Al Fayed could jus­ tify his defamatory statements was by detailed chal­ lenge to Mr Hamilton’s conduct in Parliament, which challenge would be precluded by parliamen­ tary privilege. That being so  it  would in my judg­ ment have been impossible for Mr Al Fayed to have had a fair trial in this action if  he had been pre­ cluded  from challenging the evidence produced to the parliamentary committees on behalf of Mr. Hamilton. Had it not been for section 13, the court should, in my judgment, have stayed the libel action brought by Mr. Hamilton by making an order under paragraph 2 of the summons. However, section 13 does apply to this case and provides a complete an­ swer to it.”

49. We will be failing in our duty if we do not note another

submission of the learned Solicitor General that for issuance

33

of a writ of mandamus, it is primary to establish that one has

a right and, in the case at hand, an effort has been made to

rely on the Parliamentary  Standing  Committee's report to

create a right which is legally not permissible.

50. The controversy has to be seen from the perspective of

judicial review.   The basic principle of judicial review is to

ascertain the propriety of the decision making process on the

parameters of reasonableness and propriety of the executive

decisions.  We are not discussing about the parameters

pertaining to the challenge of amendments to the

Constitution or the constitutionality of  a statute.  When a

writ of mandamus is sought on the foundation of a factual

score, the Court is required to address the facts asserted and

the averments made and what has been stated in

oppugnation.  Once the Court is asked to look at the report,

the same can be challenged by the otherside, for it cannot be

accepted without affording an opportunity of being heard to

the respondents.   The invitation to contest a Parliamentary

Standing Committee report is likely to disturb the delicate

balance that the Constitution provides between the

constitutional institutions.   If the Court allows contest and

34

adjudicates on the report, it may run counter to the spirit of

privilege of Parliament which the Constitution protects.  

51. As advised at  present,  we are  prima facie  of  the view

that the Parliamentary Standing Committee report may not

be tendered as a document to augment the stance on the

factual score that a particular activity is  unacceptable or

erroneous.  However, regard  being  had to the substantial

question of law relating to interpretation of the Constitution

involved, we think it appropriate that the issue be referred to

the Constitution Bench under Article 145(3) of the

Constitution.   We frame the following questions for the

purpose of reference to the Constitution Bench:­

(i) Whether in  a litigation  filed  before this  Court

either under Article 32 or Article 136 of the

Constitution of India, the Court can refer to and

place reliance upon the report of the

Parliamentary Standing Committee?  

(ii) Whether such a Report can be looked at for the

purpose  of reference  and, if so, can there  be

restrictions for the purpose of reference regard

being had to the concept of parliamentary

35

privilege and the delicate balance between the

constitutional institutions that Articles 105, 121

and 122 of the Constitution conceive?

52. Let the papers be placed before Hon'ble the Chief

Justice of India for constitution of appropriate Bench.

..................................J.  [Dipak Misra]

..................................J. [Rohinton Fali Nariman]

New Delhi April 05, 2017.