Kalpana Mehta and Ors. Vs Union of India and Ors.

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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,

Human Papilloma Virus (HPV) manufactured by the

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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 places in Gujarat and Andhra Pradesh?

iv) What has actually caused the deaths and other

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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

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

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

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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

controverted.

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

learned senior counsel appearing for the respondent No. 8,

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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

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.

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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

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

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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

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

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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;

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:

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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

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

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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 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

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thereon: Provided that the Standing Committees shall not consider matters of day-to-day 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

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

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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

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

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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 Minister-incharge of the Department acting as the Chairman of the Committee.

After the Constitution came into force, the position of the Central Legislative Assembly changed altogether and the committee system underwent transformation. Not only did the number of committees increase, but their functions and powers were also enlarged.

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

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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 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

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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

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.

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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 two-Judge Bench decision in Krishan Lal

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

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

1 (2007) 3 SCC 184 2 (2011) 10 SCC 529 3 (1982) 1 SCC 271

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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 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.

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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 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

4 AIR 1960 SC 1186 5 (1992) 4 SCC 506

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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

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.

6 (2013) 7 SCC 1

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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

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.

7 (1986) 5 NSWLR 18 8 [2008] EWHC 737 (Adnin) 9 1992 Supp (3) SCC 217 10 (1969) 1 SCC 292 11 (!971) 2 SCC 779 12 (1973) 4 SCC 225

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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

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 well-settled 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-

13 (2014) 9 SCC 1 14 (2009) 10 SCC 564

15 AIR 1963 SC 1241

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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.”

35. In K.P. Varghese v. Income-tax 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

16 AIR 1981 SC 1922 17 AIR 1976 SC 10 18 AIR 1976 SC 348

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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.

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 look into to ascertain the

intention of the legislature.

38. Thus observed, the reference to Constituent Assembly

debates, reports of the Parliamentary Standing Committee

19 AIR 1980 SC 387 20 (1996) 1 SCC 130

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

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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

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.”

25 [1983] 2 All ER 233

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39. In this regard, a reference to a three-Judge Bench

decision in State Bank of India through General Manager

v. National Housing Bank and others26 would be apposite.

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 29-34. 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.”

26 (2013) 16 SCC 538 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

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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- 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 30-4-1992 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

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

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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

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 (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

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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

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.

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44. Article 121 provides restriction on discussion in

Parliament. The same is extracted below:-

“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

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exercise by him of those powers.”

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

while exercising the power of judicial review or to place

reliance on the report of the Parliamentary Standing

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

Court as required under the 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:-

31 [2001] 1 A.C. 395

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

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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

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

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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

privilege and the delicate balance between the

constitutional institutions that Articles 105, 121

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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.

KALPANA MEHTA AND ORS. Vs UNION OF INDIA AND ORS.

KALPANA MEHTA AND ORS. Vs UNION OF INDIA AND ORS.